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Quick quiz question: How many current Supreme Court judges can you name?
I’ll give you a moment to consider, but don’t take too long. It’s a trick question; the proper answer ought to be zero. Lady Justice is blind. Traditionally that means justice ought not care about the skin color of the defendant, or their wealth or poverty or anything else. Justice is concerned with the fundamental equality of all men, not accidents of nature or position. However, we ought to be able to run that backward; truly just judges ought to be indistinguishable. So why is it that you not only know the Justices’ names but can lay a wager as to how they’d rule on any given controversy?
The truth of the matter is that the judicial branch is also the legislature. Whatever John Roberts does has quite a bit more influence on the law of the land than your Senator. Rather than make law your Senator spends all his time posturing for good YouTube clips and composing sick Twitter burns. Perhaps we should give up the illusion that they are the ones ultimately writing the law. There are a number of advantages to the de facto rule by the court:
- When a Supreme Court justice makes a law you get both the principle and some pages of reasoning behind the ultimate decision. It follows that some actual reasoning was done, if only to fill up space.
- When the Supreme Court rules on a Constitutional issue you can be reasonably certain that they’ve read the Constitution at some point in the past.
- Effectively this acts as a repeal of the 17th amendment. Instead of voting for state representatives who will give you the senators you want, you vote for senators who will confirm the justices you want.
You might object that the process of making the laws is all different, but I find this problem to be neutral at worst. I don’t much like the way the Court treats issues of standing and precedence, but I don’t find them any more opaque and unreasonable than cloture votes in the Senate.
You might also object that running the country this way leads to things like the Kavanaugh nomination debacle. Actually, I don’t mind that. When the lines were drawn on Kavanaugh then you could clearly see where your Senator stood. No voting both ways on a bill so you can have supported and opposed it when it comes time to reelect. Dirty tricks aplenty, but at least we the people could see them and know what’s going on.
In fact, there’s only one problem I have with this system. It enshrines the lawyer as a type of aristocrat. Only lawyers write briefs and argue in front of the court. Anyone else has to pay a lawyer to do it for them. These days only lawyers get nominated and approved for the bench, lawyers who much like presidential candidates have bent their whole energy to get to that position. I’d argue that you also need a lawyer to interpret the oracular pronouncements from the bench, but that isn’t substantially different than the normal system. Nevertheless, we’re left with a clerisy of the courts, a nobility of the bar.
I, for one, will not stand for an aristocracy.Published in