Beware the political high court
WASHINGTON — So much for judges calling balls and strikes.
President Trump tweeted the other day about the call by retired Supreme Court Justice John Paul Stevens to repeal the Second Amendment. (A dumb idea, by the way: won’t happen, isn’t necessary, wouldn’t work).
This was Trump’s take: “THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!”
Think about that last sentence, which received way less attention, and condemnation, than it deserved: “We ... must ALWAYS hold the Supreme Court,” as if it were the presidency or a house of Congress, a prize awarded to the electoral victors.
As always, Trump manages to combine ignorance and cunning. He is ignorant of — ignorant, really, to the point of allergic to — the importance of the judiciary as an independent institution and the operation of the rule of law. Yet he is also maliciously canny; this is a man who knows that nothing motivates his base more than the prospect of courts packed with conservative judges.
“When I got in, we had over 100 federal judges that weren’t appointed,” Trump observed the day after the Stevens tweet, somewhere in the middle of a speech on infrastructure. “It was like a big beautiful present to all of us. Why the hell did he leave that?” Um, because Republicans, led by Senate Majority Leader Mitch McConnell, did their best to stall and block nominations?
For Trump, judges are just another set of crude political actors, on Team Trump or off it. When they rule against his political or financial interests, they are to be demeaned (“Mexican” judge, “so-called judge”) and bullied (“Just cannot believe a judge would put our country in such peril,” Trump tweeted after a ruling halting his travel ban. “If something happens blame him and court system.”)
But the Supreme Court, his tweet notwithstanding, is not “held” by Republicans — it is occupied by judges, who are nominated by Republican or Democratic presidents and confirmed by a Senate that has a Republican or Democratic majority. Unlikely that Trump was aware of this, but Stevens — who turned out to be a stalwart liberal — was nominated by a Republican president, Gerald Ford.
As a general matter, of course: Judges selected by Republicans, especially in the modern environment of hyper-attentiveness to the role of the judiciary, are going to tend to have a different judicial philosophy than judges selected by Democratic presidents — more wary of expanding constitutional rights or inserting courts into political and social disputes.
That is why Chief Justice John Roberts’ famous umpire analogy, depicting judges as neutral arbiters dispassionately using their Very Big Brains to reason through legal problems, was so frustrating, unsatisfying, and, ultimately, misleading. “I believe that there are right answers,” Roberts said, “and judges, if they work hard enough, are likely to come up with them.”
But judging doesn’t work that way, certainly not at the Supreme Court level. The justices are not computers, they are humans, very smart ones, with very well-thought through views about the Constitution and the law.
So you might think Trump’s legal realism, such as it is, would be a welcome antidote to Roberts’ pretensions of judicial modesty. Certainly, Trump is in good company with his cynical instrumentalism: McConnell’s brute force refusal to consider Merrick Garland’s nomination to replace the late Justice Antonin Scalia stems from the same anything-goes conviction. All’s fair in love and judicial nominations.
And the future of the high court, and the judiciary generally, is not solely a Republican concern. My colleague Ronald Klain has predicted a “battle of the ages” if Justice Anthony Kennedy retires this summer — one that Klain believes will motivate Democrats even more than Republicans.
Perhaps, but it is disturbing to understand the judiciary as a spoil of war that can never be permitted to revert to the other side. This is overly mechanistic — judges don’t, or shouldn’t, arrive at the bench with a party platform.
More to the point, the court functions best — it produces better results and stands a better chance of broad societal acceptance — when justices’ views are tested and contested, when they have to defend their interpretations and temper their positions to accommodate alternate ideologies.
A court composed entirely or overwhelmingly of justices appointed by presidents of a single party, whether Republican or Democrat, would not be a better court. It would be a far more flawed — and therefore more dangerous — branch.
Ruth Marcus’ email address is firstname.lastname@example.org.