What Kind of Justice System Do We Want?

Lincoln Memorial

Today, the second woman appointed as a Supreme Court Justice, Ruth Bater Ginsburg, died. She was a brilliant judge, whose prior legal career championed human rights, particularly women’s rights. “On the basis of sex” is a documentary of her ground-breaking legal work. Her life as a judge on a conservative Supreme Court has been one of documenting strong dissents about human rights the majority of the Court has chosen too frequently to disregard. For all of us, there is a value in strong dissents. Frequently, our experiences open us to their wisdom and they ultimately become the law of the land. A prime example is Brown v. Board of Education, which some seven decades after deciding “separate but equal” facilities for black kids was constitutional, adopted the message of Judge Harlan’s dissent: separate lacks equality. The same result will come to pass from many of Justice Ginsburg’s dissent, but it will take time.

In these contentious times, our Senate is now faced with approving a presidential appointment for her successor. In his final few months in office Obama appointed Merrick Garland, a well-qualified moderate judge to the Supreme Court. Mitch McConnell, the Republican Senate leader, refused to bring the appointment up for consideration by the Senate, arguing that with the election soon at hand, the appointment should be made by the next president. However, now that Justice Ginsburg has died, and Trump is in the last few months of his term of office, McConnell has changed his mind. He’s planning a quick appointment to be sure another conservative judge joins the court, which would shift the balance from 5 to 4 to 6 to 3.

There’s not much you and I can do about the political process of judicial court-stacking, but most polls have indicated that we Americans don’t care for the politicizing of our Court, whose role is provide checks and balances for us over our two political branches of government, the legislative and executive branches. In a September 18, 2020 Times/Siena poll, voters preferred that the next president select Ginsburg’s replacement by a 53% to 41% margin.

There are very important constitutional issues involved in the debate about appointing judges. The first consideration is for us to think about our Constitution and its purpose. Today, we’re engaged in a “winner-take-all” political system, that over the years goes back and forth between conservatives and liberals. When the baton is passed, the successor administration frequently moves fast to undo what his or her predecessor has done, good or bad, and then fills the void with whatever political thought is popular with the winning party. That winner-take-all approach misses the point of the Constitution. Elections are not Super Bowls, with the trophy meant for the winner and the loser be damned and ignored until the next Super Bowl/election.

The Constitution is a document of accommodation of differing points of view. About one-third of us are conservative, about one-third liberal and the rest independent. When a party wins an election and ignores the rest of us, it is essentially ignoring two-thirds of our people. Oliver Wendell Holmes perhaps said it best in 1905 in one of his famous dissents. Holmes opined that our constitution is “made for people of fundamentally differing views.” The Constitution is not a document to assure political domination, conservative or liberal. Political minorities share equally with the winners in the Constitution’s inalienable rights and are, by design, protected from the “tyranny of the majority” James Madison wrote about in Federalist Paper #10. That design, however, assumes that Congress represents all of us as fiduciaries, not merely the winners of a particular election. We have lost sight of that important fiduciary responsibility.

As designed, with the normal turnover of judges through retirement or death, a President typically has an opportunity to appoint one or two judges. With the political movement shifting from time-to-time from conservative to liberal and then back again, appointments that are not manipulated as Mitch McConnell has a penchant for doing, will tend to produce a balanced Supreme Court over time, sometimes being 5 to 4 liberal and other times 5 to 4 conservative. Such a Court is as close as we can come in representing all of the people. The give and take between justices with differing views produces the most wholesome results for us. Why? A court stacked with like-minded judges is prone to “groupthink” decisions, as are boards of directors with “loyal directors” who never question the corporate CEO. Our Constitution has set up checks and balances that, when ignored by the deference of the Court to the political branches, are worthless. Similarly, decisions of likeminded justices who have no reason to think about other points of view don’t represent the people.

In our times, President Kennedy’s Bay of Pigs fiasco and President George Bush’s Middle East Wars are examples of groupthink decisions in the executive branch. Our two greatest Presidents, Lincoln and Washington, avoided groupthink when they appointed their cabinets. They each chose cabinet members with differing points of view. Lincoln actually appointed cabinet members from his political opponents. In a diverse society with today’s complexity, not having those differing points of view to exchange ideas and work out compromises, our Democracy will not work. A Court of like-minded judges are prone to similar mistakes.

Our creator did not create some of us conservatives and some of us liberals and the rest of us independent without a reason. We were meant to talk to each other. Learn from each other. Accommodate ourselves to each other. Compromise with each other. Manipulated winner-take-all politics is not a tool of a healthy Democracy.

As we think about this, let’s consider what Ben Franklin told the members of our Constitutional Conventions in 1787:

“I agree with the Constitution with all its faults… I believe, further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall be so corrupted as to need a despotic government, being incapable of any other.”

Today, our government is an oligarchy, run by a few for a few. We are too close to having a full-time despotic government. And we don’t need that!

Not stacking Supreme Court picks will allow the Court to exercise its checks and balances that a politicized Court will never do. That’s a start in returning us to a Democracy. That’s worth your taking a strong stand.

Comments are closed.