Courting Disaster

Supreme Court Justice Ruth Bader Ginsburg Dead at 87

The attention given to the passing and replacement of US Supreme Court Justice Ruth Bader Ginsburg discredits the institution and the nation. When judges become symbols of larger causes (in Ginsburg’s case, gender equity and other feminist goals), to say nothing of media celebrities for everyone to have an opinion on, the ideal of an unbiased judiciary that’s greater than any individual who serves it is lost. Law is not only supposed to be impartial, but impersonal.

Granted, there have been many famous crusading lawyers, and some infamous hangin’ judges, and there are certainly past Supreme Court Justices of towering stature: Earl Warren, Thurgood Marshall, Oliver Wendell Holmes, and others. But while we may admire the pathbreaking career trajectories of individual jurists, or consider the finely-phrased decisions or dissents they write, their work should ideally be anonymous. Judges at all levels, in all countries, are selected for their legal scholarship and experience; the prestige and responsibility of the job are precisely what place them above partisan politics. Although some retired members of the Supreme Court of Canada have become public figures, the nine current justices – and their judicial leanings – are virtually unknown to the average citizen. But today in the United States, Supreme Court appointees are routinely described as “liberal” or “conservative,” as if their loyalties are as obvious and as official as a senator’s, a governor’s, or a TV network’s. The possibility that they are highly educated experts (eggheads, really) in a specialized field that doesn’t always break neatly right or left is seldom considered. Indeed, in 2018 Chief Justice John Roberts was moved to respond to a typically ignorant gripe from Donald Trump thusly: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Republicans who get to select a new Justice to fill Ruth Bader Ginsburg’s place on the bench may look forward to their side gaining an overwhelming advantage in generations of future rulings – on gun control, gay marriage, the power of the executive, and other charged issues – yet they are really just adding weight to the bipartisan complaints of unelected meritocrats dictating the direction of society. Clearly, most legislators are too scared to craft bills that mandate a specific policy on divisive matters one way or another; what they want is for narrow, often strategically contrived cases to come before judges who then “interpret” existing statutory language according to their presumed political convictions. No new laws are passed – old ones are merely applied to set some transformative precedent (this is why “Roe vs. Wade” has become shorthand for legalized abortion in the US, even though it refers to the verdict of a single court rather than a federal law enacted by Congress). It’s now the GOP who are setting themselves up to be the party of elites, against Democrats who represent a populist wave, since polls suggest most Americans are more liberal on many subjects than the likes of Mitch McConnell or Mitt Romney.

Nothing against RBG, who is today hailed as a heroine of jurisprudence by her fans, but the whole point of a Supreme Court is that the learning and sobriety of its judges exalt them beyond the ideological contests which divide the lesser public. They should not be claimed by any group or party. They should not be anyone’s heroines, heroes, or villains. They should not have fans, or foes, at all. Just as the results of a sporting competition are considered fair only insofar as we ascribe a faceless final authority to the referees, the determinations of trials and hearings are accepted only insofar as we trust the nameless neutral wisdom of the judges. A court as openly politicized – and polarized – as its surrounding culture is no longer Supreme.