Is it about “representation,” or the law?
A new poll from Harris Interactive suggests that 70% of Americans are uncomfortable with using a system of lifetime appointments to fill vacancies on our nation’s highest Court.
This shouldn’t come as a shock, and neither should that fact that millennials are far less likely to object to the idea of lifetime appointments (only 63% object) as compared to baby boomers (73%), “matures” (76%), and—perhaps most interestingly—Gen Xers (71%.)
A generational gap isn’t surprising because, for all intents and purposes, the Court is generally painted as some sort of next-level legislative body, expected to respond to the ever-fluid world views of pundits, protesters, and various voting demographics. (Don’t believe me? Review the news coverage from the Court’s rejection of DOMA.) As a card-carrying member of the bizarro generation tucked neatly between “GenX” and “Millennial,” I can testify to the fact that as we grow, so grows our exposure to various ideas about how government should respond to a diversifying society, and vice versa.
The problem with this viewpoint isn’t that it’s likely to change the system overnight—this would require a Constitutional amendment—but that it comes from a bloc of people who harbor a fundamental misunderstanding of the point and purpose of a Supreme Court.
The Harris Poll asked Americans to deliberate on the nation’s highest court, and found that despite two-thirds of Americans (68%) feeling it’s a crucial governing body for the success of the United States, nearly half of Americans (47%, up from 42% in 2010) say they are not knowledgeable about the Supreme Court confirmation process.
Just over half of Americans (53%, down from 58% in 2010) indicate being that they’re knowledgeable about the process, with one in ten (11%) saying specifically that they are very knowledgeable about it and just over four in ten (42%) saying they’re somewhat knowledgeable.
Less than half of those who have an opinion about how the court should be run know how we currently choose justices. Excellent. Then there’s this gem:
Seven in ten Americans believe that the makeup of the Supreme Court should fairly represent Americans’ diverse socioeconomic backgrounds (71%) and that it should fairly represent the demographic makeup of the United States (70%). Democrats are more likely than either Republicans or Independents to support both of these statements (Socioeconomic – 82% Democrats vs. 64% Republicans and 68% Independents / Demographic – 82% vs. 61% and 67%, respectively).
This is probably the most meaningless world view ever to be expressed by someone confronted with a survey, and it should serve as a warning to lawyers and scholars working against the growing influence of critical legal theory in America. The idea that the evolution of the common law should be artificially sped up to “keep up with the times” isn’t only ignorant—it’s dangerous.
The common law doesn’t just happen; it evolves—usually slowly. What the general public almost never sees is the exhaustive process of working a case through the court system, submitting briefs, and being granted cert. It’s not some sort of random process that ends with a filibuster on the floor of the Court where Scalia refuses to sit down until Ginsburg admits she was wrong about Ledbetter.
Those actually advocating for SCOTUS term limits claim that judicial independence is dead, and that the Court as a body has too much political power. Can you imagine what would happen if we had to appoint new justices every 18 months? Every 2 years? It would be like Cabinet appointments on steroids. And crack.
The legal profession is unique in that most honest approaches to interpretation involve the abandonment of the very things progressives are doing their very best to convince Americans are most important—world views, feelings, and “representation.” The purpose of Congress is to achieve equal representation; the purpose of the Court is to ensure that the deliberative body does not exceed its Constitutional bounds.
Trends in jurisprudence move like a pendulum. As justices change, so do philosophies, and the law evolves in time. We shouldn’t expect legal trends to move along with trends in activism in the media. The Constitution was not built on the whims of its drafters; neither should its progeny be built on the whims of an increasingly fickle public.
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