All the hoopla over George Bush’s appointment of John Roberts, Jr. to the Supreme Court has me thinking. Not about whether the Senate should confirm the judge — liberals should do what they can to prevent the court from tilting even further rightward — but about whether a constitutional system designed to give nine human beings so much power deserves our support. I don’t think so.
Liberals who claim Bush should appoint someone less conservative than Roberts may be right tactically but they’re wrong historically. Like most presidents, beginning with George Washington, Bush is perfectly justified in naming ideological clones likely to advance his own agenda. If liberal Democrats can block him in the power game, fine. But it’s silly to argue that Bush is obligated to appoint someone resembling Sandra Day O’Connor, whose primary difference from fellow conservatives Rehnquist, Scalia, and Thomas is her reluctance to overturn court precedents set by more liberal justices.
Liberals should block Roberts for the same reason Bush appointed him — Roberts is a smart, effective judge likely to expand government and corporate power at the expense of individual rights. Once appointed, his well-written opinions will refer to constitutional provisions, statutes, and court precedents that support his careful, reasonable conclusions, just as liberal dissenters will use the same legal sources to explain why Roberts is wrong. Supreme Court decision making is, on most important issues, extremely malleable.
Although it’s possible, I doubt Roberts will turn out to be a Republican Party activist simply following the president’s orders. What I expect is more complicated, and worse, than simple political hackery: an honest conservative whose life experiences and intellectual explorations justify conservative conclusions. Justices with different experiences and intellectual influences will just as honestly, just as reasonably, reach opposite conclusions.
Decisions in individual cases can not always be predicted (Roberts is on firm ground in refusing to say how he would rule on specific future cases), but presidents and senators are entitled to investigate a nominee’s overall approach to constitutional interpretation and federal power (making it reasonable to insist that Roberts explain how he would have ruled on past cases such as Roe v. Wade). If it’s legitimate for the president to pick judges whose world views support his own, it’s equally legitimate for senators with different perspectives to refuse to go along.
What I really wonder about is broader than whether Roberts will be confirmed. I doubt there’s really any way that makes sense to pick judges with so much power. The Supreme Court is, by design, such a fundamentally anti-democratic institution that it’s hard to come up with a principled justification for it even if leftists filled all nine seats.
Even if we had a system that routinely produced justices who are smart, well-respected, and fair — and we don’t — we’d still have a court with nine individuals as flawed, as human, as the rest of us. Electing judges instead of appointing them would solve nothing — the winners would no doubt be better campaigners than jurists . A merit selection system, like those in some states, would bury nominees’ inevitable political views under so much evidence of supposed technical competence that they’d all, no doubt, look like John Roberts.
If we took democracy seriously, we’d stop giving people so much power over so many lives and start envisioning a society in which ordinary people participate in the decisions that affect their lives. That can’t be done in a society as large and as centralized as the United States, and, as anarchists rightly note, not in any nation state. We may be stuck, at this historical moment, with a world of states. But rather than define our own ambiguous constitutional framework as a “democracy” we should think about how to replace that framework with something better.
Dennis Fox is emeritus associate professor of legal studies at the University of Illinois at Springfield. See his academic and political essays on psychology, law, and justice.