The Moral Authority of the Supreme Court
Just days ago, Judge Amy Coney Barrett was confirmed by a 52-48 vote to be an Associate Justice of the Supreme Court. To put this close vote in context, it’s useful to note that of seven justices confirmed to the high court since 2000, only two (29%) have received a two-thirds vote or more. In contrast, in the previous fifty years, 19 of 21 confirmations (90%) exceeded that two-thirds threshold, including five by voice vote. Barrett replaced Justice Ruth Bader Ginsburg, who in 1993 was confirmed 96-3. Voting “yes” at that time were both current Senate Majority Leader Mitch McConnell and current President Pro Tem of the Senate Chuck Grassley.
While scholars of the court debate its political neutrality based on the percentage of unanimous and 5-4 votes, the public perception is that nominations are now made – and according to many should be made - with huge weight given to a judge’s expected liberal or conservative positions. The court, by too many Americans, is thus considered a third political branch of government. This is not healthy. Perhaps not surprisingly, Gallup polls now show that the proportion approving of the way the Court handles its job is only 53 percent. Also not surprising is that Republicans and Democrats tend to have more favorable views of the Court when their party controls the White House, where of course Court nominations originate.
When the Court’s decisions are viewed by most Americans as political, hinging less on the Constitution and more on a partisan interpretation of it, this risks the Court’s moral authority. If the Court lacks the legitimacy arising from that moral authority, the chances increase that people or even a president will not accept and may even defy its rulings. With no way to enforce them, the Court could slide into irrelevancy. The balance of powers so essential to preserving republican government requires a system in which justice is – and is viewed as - blind to political influence. That’s not where we are today.
The Court also serves a critical function in calming societal tensions when it acts as a more sober, deliberative body than the executive or legislative branches. Justices are appointed for life to give them independence from politics. Their majority opinions come after careful review of facts, law and history. Dissenting opinions give voice to facts and reasons that otherwise might be forgotten. The gravity of the Court is essential in times, like now, when political rhetoric inflames passions.
In this regard, Judge Barrett’s nomination, in a ceremony on the White House lawn, and even worse her swearing in at another such ceremony so close to a presidential election, were events she should have resisted. The Court and the nation would be better served by less political pomp and more solemn neutrality.
The Court’s current position (and lower courts as well) as an increasingly political body is most likely due less to its wishes than to the failure of the executive and legislative branches, and society at large, to reach agreements. Their inability to address critical national issues because of entrenched cultural and political differences pushes the courts to intervene. What Democrats and Republicans cannot win in Washington, D.C. as well at the state and local level they try to win through appointments to the courts.
Such appointments should consider Constitutional and legal competency and personal character as the foremost qualifications, not views on substantive issues. Integrity, ethics, compassion and open-mindedness are questions that need more attention in confirmation hearings, especially when everyone knows that answers to questions on hot-button topics will only meet with the now expected nominee demurer from ‘discussing issues that may come before the court.’
In making these appointments, the President, Senators and all Americans should remember that those confirmed will be called Supreme Court Justices, not Supreme Court Lawyers. “Justice is the end of government. It is the end of civil society,” James Madison reminded us in arguing for ratification of the Constitution. While all judges must follow the law, their moral duty is to apply the law in pursuit of justice.
The current, passionately divided political climate is likely to continue for years to come. We need courts that will help restrain not reflect it.
Photo Credit: Jackie Hope-unsplash.com
