The comedian Peter Cook once joked, “I could have been a judge, but I never had the Latin.” Instead, he became a coal miner. “They only ask one question. They say, ‘Who are you?’ And I got 75 percent for that.” As the laughter subsided, Cook added a satirical kicker. “Being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with the judges.”
It seems that Supreme Court Justice Anthony Kennedy may have been listening to some of Cook’s old records. Ahead of this week’s landmark hearings in which the Supremes hear two cases in which they are being invited to decide whether same-sex marriages are constitutional, Kennedy made a sharp and surprising critique of the role the court has played in recent years in settling awkward matters that would have been far better decided by Congress. “A democracy,” he declared, “should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”
It is a strange admission for a Supreme Court justice. Cook made fun of the fact that senior judges are mostly old and doddery, and the older and more doddery they become, the more detached they are from normal life. Many who believe that justice should be impartial welcome the rarefied atmosphere in which judges tend to live and make their decisions. Kennedy, meanwhile, is suggesting the opposite ‑ that if justices have to be brought in to decide issues that would better have been solved by Congress, they should be more of an age and closer to the backgrounds of the ordinary Americans who must live with their decisions.
Kennedy is not quite a turkey voting for Thanksgiving, perhaps. But his distaste at having to make decisions other parts of government cannot bring themselves to take is an indictment of a system of government that, after 250 years, has led to purposeless deadlock and stasis.
The same-sex marriage cases have also brought to the fore critical remarks about the court’s decision-making by another justice, Ruth Bader Ginsburg, ruminating on whether the 1973 decision granting women the constitutional right to an abortion was correct.