An honor to dream not of

As we are treated to the spectacle of the United States Supreme Court reaching out to determine whether the former president possesses official act immunity for his efforts to overturn an election loss (or ensure election integrity, depending on how you look at it), the time might be right to consider whether nomination to the court is worth the candle. In Romeo and Juliet, Juliet’s mother asks her, “Tell me, daughter Juliet, How stands your disposition to be married?” Juliet answers, “It is an honor that I dream not of.” For reasons that ought to be obvious by now, this could be an appropriate answer to an inquiry from the president’s office, “How stands your disposition to be nominated to the United States Supreme Court?”

Judge Richard Posner, formerly of the Seventh Circuit, famously told a reporter that he did not like the United States Supreme Court, because “I don’t think it’s a real court.” He called it a “quasi-political body” that “decide[s] which cases to hear,” meaning they have “decided the cases ahead of time.” As usual, Judge Posner gets to the heart of the matter in a hurry. Assuming his characterization of the court was not way off or just sour grapes (it wasn’t), some other negatives about attaining and maintaining membership in the nation’s top court readily come to mind.

First, the nominee, generally appointed for a political purpose, must lie under oath to get on the court. Leaving aside the histrionics of Justices Thomas and Kavanaugh, this is a near universal practice. Ever since Robert Bork tripped over his candor, nominees of whatever political stripe understand that they cannot tell the truth about the issues they have basically been nominated to decide in favor of the president’s party. These aspirants, typically perched at the peak of the legal profession, have embraced a fairly crude stratagem to avoid Bork’s fate. Utilizing what has come to be called the “Ginsburg doctrine,” a nominee will contend that he cannot speculate on future votes (i.e., I cannot discuss how I would vote on this or that (it used to be abortion)). This is really not much more than saying, “I’m not going to talk about that.”

The obligation to lie goes beyond pretending you have no idea how you will vote on a critical issue. Nominees now must lie about the whole enterprise. Chief Justice Roberts gave us the most egregious example when he testified that as a justice he will serve as a kind of legal umpire, just calling balls and strikes (presumably not like MLB umpire Angel Hernandez, who evidently cannot tell one from the other). Instead of dying the death it should have, this view was taken up by at least Justice Gorsuch at his senate hearing. Not finished, Justice Roberts went on to declare that he had no agenda to overrule precedent, even though he conceded he had written a brief in a case stating that Roe v. Wade was wrongly decided and should be overruled. When Justice Roberts testified at his confirmation hearing, Roe v. Wade was over 30 years old and had been basically upheld more than a decade before in Planned Parenthood v. Casey. But, according to Justice Roberts, when society no longer buys into the central premises of a decision, passage of time is likely to erode the validity of the decision rather than uphold it (call this the “Plessy v. Ferguson doctrine”). Reasonable enough, you say, but who is to say that time has eroded a prior decision of the court? Why, it is the newly constituted makeup of the court, that’s who. And, of course, when did the court actually overrule Roe v. Wade? Why, 18 years later when, for the first time, they really had the votes to do it thanks to the appointment of Justice Barrett (who, the former president will tell anyone who’ll listen, that this is what she was nominated to do). Passage of time, at least in terms of societal change, had nothing to do with it.

Second, elevation to the court feeds a sense of superiority that is already barely under control. Folks nominated to the court have been winning the game most, if not all, of their lives. They test off the charts. They are summa cum laude of everything. They attended the elitest of elite schools. People may point out that Justice Barrett did not attend an Ivy League school as an undergraduate or law student. However, to the extent that this is a version of the “self-made person” argument, there is no one more (justifiably) convinced of their superiority than someone who “did it my way,” without a boost from a hallowed hall. Most justices have already worked at the court as Supreme Court clerks (including Justice Barrett), a job that in itself signals they are the cream of the crop. Their rise in the profession has been mercurial, often with little time spent grinding out hours for clients (Justice Barrett worked at a D.C. law firm for two years). The upshot is that they are blind to many of their errors and weaknesses. Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organizations is a prime example, from the notion that the abortion vel non is better left to the states (how’s that working out?) to his proof that abortion was historically illegal (he cites a barbaric case where a woman convicted of performing an abortion was put in the stocks). Judge Learned Hand once quoted Oliver Cromwell to a congressional committee: “‘I beseech ye in the bowels of Christ [i.e., for the love of God], think that ye may be mistaken.’” He recommended that this be written over the door of every courthouse and recited at the beginning of every court proceeding. Fat chance. Still, it would help if the justices kept this in mind. Fat chance 2.0.

Lastly, perhaps the saddest aspect of the ingrained elitism of the justices is the degree to which it gets alchemized into their desire to remain on the court at all costs. More than one justice has essentially attempted to die on the bench. In Justice Ginsburg’s case, her stubborn resistance to retirement gave the current court the votes needed to further its mission to recreate mid-20th century America. Indeed, the barely disguised desire of the majority of the justices to accomplish this project is further proof (if it was needed) that they have the temerity to think they know what’s good for us (or what God wants) better than we do.

Despite the court’s patent shortcomings, no one who considers herself or himself in the ballpark for an appointment to the court is immune to its allure. Judge Hand himself was disappointed that he was passed over in favor of others he considered his inferior. To his credit, he later faulted himself for his ambition: “It was the importance, the power, the trappings of the God damn thing that really drew me on,” he reportedly said.

Oral argument at the court after the “Oyez [listen up]!” bit begins in part with the words: “God save the United States and this Honorable Court!” Maybe better to say, considering what it takes to join the court: “God save the United States from this Honorable Court!”