Why the fight over Justice Scalia’s successor SHOULD be nasty.

Both Democrats and Republicans have offered pretty good arguments for why Scalia’s successor should (and should not) be picked before the next president is elected. On balance, I think the right has the edge on this debate. I’ll explain why in another post.

For this post I’d like to hit just one argument thread that I’ve heard, namely, that the nomination of a Supreme Court Justice should be a sort of non-partisan process that proceeds in a sort of sober and orderly way and based solely on the merits of the person nominated to the Court.

This is a snooze of an argument, and the prevailing mood on both sides of the aisle is totally out of sync with its staid, traditionalist tone. (Rather than evoke a sort of mythical non-partisan past, the Democrats have largely preferred to punch back on the idea that we need to wait to let the American people have a say by saying that they already did in 2012.)

In other words, the idea that we select judges just based on their merits is largely passe to the portions of the Democratic and Republican parties that are responsible for their messaging. But I think there’s a good swath of independents out there who still would like to think of the Court as just a bunch of really great lawyers™ who will figure out the right answer. These are the people that both parties need to message in the lead-up to the 2016 elections.

These folks ought to be told that merit-based selection is no longer practicable for the United States Supreme Court. And they need to be told why.

The reason why we can’t select judges based on merit has nothing to do with whether we are more partisan than we used to be. It has to do with the fact that judges, and specifically Supreme Court Justices, have a different job than they used to have. Now their job includes making value judgments.

The Supreme Court doesn’t really write law or enforce it. It interprets the law. Once upon a time the Supreme Court would take a look at a legal text, decide what it meant, then issue a ruling. There were some notable exceptions to this extraordinarily simplified history of high-court jurisprudence (and these exceptions tend to be in the limelight, for the reason I explain below), but it suffices for present purposes.

But then something changed. The Supreme Court started to find surprising things in the United States Constitution. They found “rights” and “liberties” that were not clearly granted by the text of the document.

To take a recent (but perhaps not the best) example, in Obergefell v. Hodges the Court found that all along the Fourteenth Amendment granted same-sex couples the fundamental right to marry. This would probably come as a surprise to the folks that wrote up the Fourteenth Amendment and passed it in the late 1860’s (not that their opinion is the be-all and end-all — they may have used words that did more than they meant to, and it is the words that matter.). But more importantly, it would certainly come as a surprise to the really great lawyers™ on the Supreme Court a few decades earlier, who read the same text and not only couldn’t find that right, but also couldn’t find a “fundamental right to commit homosexual sodomy,” and who (through citation) referred to same-sex relations as a “crime against nature.” (Bowers v. Hardwick.)

So back in the 1980’s Chief Justice Warren Burger was a very good lawyer who was reading the Constitution and couldn’t find this right. But then in 2015 Justice Anthony Kennedy read the same Constitution and found the right.

Now there’s two explanations. Either the text of the Constitution had that right in it all along, and we couldn’t find it until 2015. Or something changed outside of the United States Constitution that Justice Anthony Kennedy was responding to.

I think it’s probably the latter. Not only in Obergefell, but in many of the Supreme Court’s most famous opinions (Roe v. Wade) the Court has shown a willingness to allow something outside the text influence their rulings. That something is “cultural values.”

I don’t want to get into cultural values, which have changed, and which are right and wrong in the grand scheme of things. All I want to point out is that cultural values aren’t written into the Constitution, and for a very good reason: They tend to change.

Not only do cultural values tend to change, they also tend to differ between the left and the right.

Not only do cultural values change, and not only do they differ between the left and the right, they are also something that really great lawyers™ don’t necessarily receive a lot of lessons on.

So if a person is going to be making important decisions based on their cultural values, then why should we only be looking at whether they are a really great lawyer™? We shouldn’t — we should treat Supreme Court Justices as we treat national politicians. No one said it better than Justice Scalia himself:

As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here — reading text and discerning our society’s traditional understanding of that text — the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But … if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.
The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.

There you have it.

Unless we can all agree that the job of a Supreme Court Justice isn’t to make booming pronouncements about what the law ought to be (even when those booming pronouncements would very much please you) then we should fight about who will end up on that Court.