12 April 2017
'It is not our job to represent the people of the United States.'
The speaker is the Chief Justice of the U.S. Supreme Court, who yesterday was in Troy NY, the city where I work, to speak to students at a local college. Justice Roberts was explaining his opposition to "diversity" as a criterion for appointing future justices, rightly arguing against the idea of demographically proportional representation in the highest court of the land. He is also right to identify the Supreme Court as a check on democracy rather than an expression of it. The high court's purpose is to uphold the Constitution, as a majority of justices understand it, against the will of any given majority of people, or a majority of their representatives in Congress, should either go against the founding charter's dictates. For that reason, I'm curious to know whether Justice Roberts approved of last year's action by the Republican majority in the U.S. Senate blocking any consideration of President Obama's nominee to replace the late Justice Scalia. I would not expect the Chief Justice to say the Republicans acted unconstitutionally, since the Senate notoriously enjoys the prerogative of making virtually any rule for itself that a majority wishes. Instead, I wonder what Roberts thinks of the argument Republicans used to justify their sabotage of Merrick Garland's nomination. Their argument, dubiously based on historical precedents, was that a seat on the bench that goes vacant in a presidential election year should remain vacant until after the election. They argued explicitly that the American electorate should decide, if not who specifically should fill the vacancy, then the sort of judge who should do so, by voting for the ideologically appropriate candidates for President and Senator. The Republicans argued, in effect, that a Supreme Court justice did represent the people of the United States, since the presidential election would effectively determine his identity. One could argue that this is only what the Constitution dictates, until one recalls that the founding charter hardly intended the President to be chosen in as democratic a fashion as he is today, and that a President chosen in the old manner could hardly claim, as Presidents flaunting their democratic credentials have done since the days of Andrew Jackson, to represent the American people as a whole. All arguments aside, thanks to Republican obstruction and Republican victory last fall, the Chief Justice now has a colleague more along his own lines, presumably, than should have been the case. Of course, the Republicans' Senate majority last year probably meant that Garland never would have joined the court, and their arguments against giving him a hearing merely rationalized their refusal to take the risky step of actually voting Garland down on no better grounds than that a Democrat had nominated him. So I wonder whether Justice Roberts is really comfortable with the way he came to swear in Justice Gorsuch this week. I would like to think that he isn't, but despite his own disclaimer that justices are neither Republican nor Democrat, I suspect that he can live with this perfectly well.