As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating, for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.”
In light of Justice Gorsuch’s refusal to answer any meaningful questions at his confirmation hearing, as well as the GOP’s stonewalling of Judge Garland, it is tempting for Court watchers, as well as the Chief Justice himself, to blame the confirmation process for the current despair over the Court. But that leap is a serious mistake. The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.
The Supreme Court has been a largely political institution since 1803. I do not mean that the Justices make decisions just like other politicians. They do not because that have more independence than elected officials who must try and please the voters by often making false promises about what they intend to accomplish in the future or by painting a distorted picture about what they decided in the past. The Justices don't, and shouldn't, have that pressure.
By “political”, I mean that the Justices resolve cases, both important front-page controversies and less publicized back-page ones, through a combination of personal preferences, life experiences, partisan politics, and values writ large, where traditional legal norms play only a marginal role in generating (as opposed to explaining) their decisions.
The fiction that prevents us from having a meaningful confirmation process is the repeated falsity that law plays a primary role in the Court’s decisions. It is that myth that allows Justice Gorsuch, and all the other recent nominees to the Court, to say that they should not reveal their preferences when being vetted for the highest Court in the land. That pattern has turned the process into a “charade” as Justice Kagan once wrote or “Kabuki Theater” as Joe Biden once said.
The Justices are not like other judges (even other life-tenured judges) who apply legal rules against the backdrop of an appellate or reviewing court. The Justices are free to and actually do change those rules and overturn prior decisions when they feel it is important enough to do so. That freedom, as well as the fact that the Justices handpick their cases, which are among the hardest our country has to offer, explain why the exercise of personal discretion rather than the application of formal legal materials best explains the Justices’ responsibilities.
If our politicians could openly speak these truths about the Court, and if the Justices honestly and transparently explained that their personal preferences play a major role in deciding constitutional law cases, the public’s and the media’s dialogue about the Court would be greatly improved. We need Supreme Court Justices of great character, intellect, and abilities precisely because the job comes with so much discretion and independence.
If the public accepted that the Justices are free to decide cases as they think best largely unencumbered by prior law, we could have a more realistic conversation about proposals to improve the confirmation process that would better gauge the quality of the nominees and their personal and political preferences. For example, some states and European countries have judicial qualification committees that do a much better job vetting judges than the hopelessly partisan Senate Judiciary Committee. Moreover, given the role that personal values play in the Court’s decisions, the Senate should require nominees to answer real questions about their values and their political (and legal) perspectives if they want to ascend to the bench.
All of this is unlikely, maybe even impossible, as long as we continue to adhere to the myths that nominees espouse both in their confirmation process and then, once affirmed, in their judicial decisions. Their tired and inaccurate clichés that “the law made me do it,” or “I will do my best to follow the law,” are shallow statements that should be removed from public life for Supreme Court Justices. Our current Chief Justice, who claimed during his confirmation hearing that the Justices are just like umpires who call balls and strikes but don't decide who wins the games, has written legal decisions imposing his personal views on voting rights, affirmative action, campaign finance reform and federalism (among many other issues) that are far removed from constitutional text and history but accurately reflect his personal values. It is unconscionable that he hid (and was allowed to hide) those values when he testified in front of the Senate.
Some scholars question whether the public would retain faith in the Justices if we openly discussed how much discretion they possess to rule how they want. But our collective belief in checks and balances and the separation of powers justifies a third branch of government with veto power over state and federal legislation even if those decisions sound more in discretion than law. In any event, that is how the Supreme Court has operated for hundreds of years. Until we truly accept that the Supreme Court of the United States at its core is a political not legal institution, the confirmation process will continue to be the “charade” Justice Kagan labelled it over twenty years ago.