Glenn Reynolds points out very astutely that, if the Supreme Court were genuinely representative of the country, instead of a small, and currently intensely abberant elite cultural clique, and if the Court had properly limited itself to interpreting the Law, rather than following the grand Dred Scott tradition of exploiting an ephemeral Court majority to settle intensely divisive national issues by judicial fiat, we wouldn’t have the vicious political struggle over Supreme Court appointments that has become the norm in recent years.
The power of playing the decisive Platonic Guardian card and getting your way permanently is too valuable a prize.
Why does Justice Ginsburgâ€™s replacement matter so much that even â€œrespectableâ€ media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburgâ€™s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.
That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting â€” have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didnâ€™t used to mean much â€” Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee â€” because the Court, while important, wasnâ€™t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.
The point isnâ€™t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, thereâ€™s no real democratic remedy.
That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.
Almost as bad, the Court is highly unrepresentative. That doesnâ€™t matter when itâ€™s deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of Americaâ€™s elite political class. Which, as I mentioned earlier, is in general pretty terrible.
Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices â€” Justice Robert Jackson was the last â€” didnâ€™t have law degrees, having â€œread lawâ€ after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwickâ€™s words, â€œjudicial thoroughbredsâ€ with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.
So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.