Supreme Fictions

Does anyone have anything good to say about the absurd process by which we select Supreme Court justices? Confirmation hearings have become a mix of Grand Guignol and hide-and-seek. The debates surrounding potential justices are not only ideologically polarized, but filled with crude and misleading claims about what Supreme Court justices do or should do. And the candidates themselves have contributed to the debacle, making silly but politically savvy claims in their confirmation testimony about how they would act as justices.

In The Next Justice, Christopher L. Eisgruber shows how we got to this point—and then, as his book’s subtitle promises, proposes a way out. Eisgruber, who is the provost of Princeton University and former director of its Program in Law and Public Affairs, frames the problem by showing how John Roberts used inspired nonsense to help get himself confirmed as chief justice. Supreme Court justices, Roberts argued at his confirmation hearing, are like baseball umpires, who “don’t make the rules, [but] apply them.” Torturing the analogy further, he vowed to “remember that it is my job to call balls and strikes and not to pitch or bat.” Like an umpire, he would remain steadfastly impartial. “I come before the committee with no agenda,” he assured the senators. “Judges are not politicians.”

As Eisgruber conclusively demonstrates, such statements are indeed nonsense. Unlike umpires, Supreme Court justices do “make the rules.” In fact, that’s their job in a legal system that requires them to interpret, define, and apply both the Constitution and congressionally enacted statutes. While certainly not politicians, judges inevitably have a politics and, more broadly, an ideology—and to claim otherwise is disingenuous at best. During his eventual first term as chief justice, Roberts ended up voting 77.5 percent of the time with Antonin Scalia, the court’s leading conservative, and only 33.5 percent of the time with John Paul Stevens, the court’s most liberal member. So much for the lack of an agenda.

So why would Roberts, a sophisticated lawyer and judge, utter such nonsense? Because it works. Claiming an umpire’s neutrality helped Roberts elude the attempt by Democratic senators to expose his ideology, thereby avoiding the kind of political bloodbath that beset the Robert Bork hearings in 1997. Such evasive tactics have turned recent confirmation hearings into pointless charades during which nominees strenuously avoid answering substantive questions and confine themselves, as both Roberts and Samuel Alito did, to platitudinous rhetoric about impartiality and open-mindedness; as a result, we now expect a nominee to pose as a virtual tabula rasa with regard to abortion, affirmative action, and the other crucial constitutional issues of the day.

How did we arrive at such a cynical sham? Eisgruber sketches the history of Supreme Court appointments, noting that partisanship is nothing new. Presidents typically have nominated candidates politically and philosophically compatible with themselves, and this has often led to confirmation fights. (Even George Washington endured a bitterly partisan battle over his nomination of John Rutledge.) According to Eisgruber, however, things changed dramatically after the Warren Court of the 1950s and 1960s. Eisenhower had nominated Earl Warren and William J. Brennan without worrying much about their liberal leanings—he owed a political debt to Warren for the support of California voters, and hoped to curry favor with Catholic voters by appointing Brennan. The backlash to the court’s controversial and liberalizing decisions, however, forced subsequent presidents to pay much closer attention to their candidates’ ideological profiles. And the Burger Court’s 1973 decision in Roe v. Wade turned presidential elections, in part, into referendums on whether voters should elect someone whose Supreme Court appointments would uphold or overturn Roe. Gradually, determining the next justice became a bitter political and ideological battle reenacted with every nomination.

The Next Justice reveals how partisan battles have debased the very way we talk about the Supreme Court. During the Roberts hearings, for instance, Senator Charles Grassley (R-Iowa) praised the kind of “judicial restraint” that decides cases “solely on the law and principles set forth in the Constitution, and not upon an individual justice’s personal philosophical views or preferences.” One could spend an entire course on Constitutional Law explaining why Grassley’s concept of “judicial restraint” is incoherent, but Eisgruber manages it in just a few pages. The concept of “restraint,” he shows, does not explain how judges can understand and apply the great abstract principles of the Constitution (equal protection, due process, freedom of speech, separation of church and state, and others) without drawing on their own fundamental convictions about politics, law, the role of the state, and the nature of American democracy. Grassley’s assumption that one can interpret and apply the Constitution “solely on the laws and principles set forth in the Constitution” is not only circular; it misapprehends the nature of a constitution and, indeed, of judicial lawmaking itself.

Equally fatuous is the common claim that “judicial restraint” means “strict construction” of the Constitution. This “linguistic swindle,” as Eisgruber calls it, is sometimes used to argue that judges should cleave tightly to the literal text of the Constitution. But of what use is strict construction in parsing the equal-protection clause, for example? The concept is too open-ended to be “strictly construed.”

Some use the phrase, however, in a more substantial, albeit more ideologically loaded manner. For them, “strict construction” is a policy of interpreting the equal-protection and due-process clauses, as well as the First Amendment, to minimize the range of existing rights and limit the recognition of new ones. But strict construction used in this way cannot pretend to be a technical, neutral, or “restrained” principle of interpretation. It is instead the unacknowledged expression of a substantive—and controversial—understanding of constitutional rights.

Eisgruber argues further that the rhetoric of “original intent” or “originalism” is as misleading as that of “judicial restraint” and “strict construction.” He acknowledges the appeal of the principle that a constitution should be interpreted in accordance with what it was intended to mean, but ultimately rejects originalism on the ground that it is self-refuting. According to Eisgruber, the drafters built the Constitution around great cloudy abstractions because they expected the understanding of those abstractions to change over time. Thus the notion of a “living constitution,” Eisgruber maintains, is in fact consistent with the drafters’ original intent.

For Eisgruber, the problem with conventional notions of judicial restraint, strict construction, originalism, and neutrality is not only that they are incoherent, but that they tend to obscure the role political ideology plays in constitutional adjudication. The Next Justice is in part an attempt to define what that role actually is. Eisgruber insists that constitutional adjudication is not simply ideology; nor is it merely politics disguised as neutrality and principled decision making. Yes, justices are “political,” but they aren’t politicians. Entertaining anecdotes from the author’s stint as a Supreme Court clerk reveal justices who actually spend very little time talking to each other, let alone lobbying each other. They may make compromises to obtain a majority, and they are not insensitive to the public backlash a difficult decision may create, but horse-trading, log-rolling, and arm-twisting play no role in how they decide cases and write opinions. Whatever their ideological perspective, they see themselves as juridical persons who decide cases on the basis of the law, persuading each other through legal argument, not the exercise of power or favor. Their goal is to make decisions that are doctrinally coherent, properly attentive to precedent, and consistent with legal reasoning. They cannot be simply ideologues or pols. Their range of action is constrained by their functional identity, which limits the pure play of ideology and power.

This is a comforting notion; yet many observers today believe that the ideological tide is rising in the court. The question is whether justices nominated by highly partisan presidents will allow ideological values to overwhelm the legal and institutional values that traditionally have guided constitutional adjudication. Eisgruber shows that the answer does not depend upon whether a particular nominee’s politics point left or right. It is more a matter of the nominee’s judicial philosophy—how he or she views the proper role of courts in the American political system, and specifically the question of when the court should impose its own view of the Constitution on legislatures. A nominee’s judicial philosophy, Eisgruber insists, is the proper focus of inquiry in the nomination process. Nominees should not be expected to lay out their ideological perspective—nor should they be placed in the absurd position of pretending that they don’t have one. They should be expected, however, to articulate their judicial philosophy and to “identify the basic themes or values that govern his or her attitude toward judicial enforcement of the Constitution.” In other words, they should divulge their views of the legal and institutional values that make their function distinctive. Doing so would require paying close attention to legal issues that are less incandescent than abortion, capital punishment, religious freedom, privacy rights, and so on, but nonetheless crucial to understanding how a nominee would behave on the court.

For example, what is the nominee’s methodology for interpreting the Constitution? Originalism? If so, what kind? If the nominee is a proponent of the “living Constitution,” how would he protect against ungrounded personal interpretations of the text? Does the candidate favor cautious, incremental change in doctrine, or sweeping reversals of past precedent? How important is deferring to legislative judgments? How does the nominee think the court should go about defining new individual rights? How does her understanding of federalism effect her conception of the judicial role?

While Eisgruber would allow questions about the nominee’s understanding of general areas of constitutional doctrine (for example, free speech, privacy, accommodation of religious practices), he would protect nominees from having to say how they would decide specific cases, an ethical problem for judges. He would not allow them to use that excuse, however, to avoid answering questions altogether. They would need to disclose how they understand both their role on the court and the court’s role in our legal and political systems.

Such proposals are sensible. Eisgruber’s other main idea—that presidents should nominate and senators confirm moderate candidates—looks less promising. He defines a moderate judicial philosophy as one that displays “an open-mindedness toward novel claims of constitutional justice brought by disadvantaged groups or persons, and a thoughtful understanding of the limits of the judicial role.” Such a philosophy, he argues further, could be shared by both liberals and conservatives, and would affirm a mutual commitment to procedural values of judicial lawmaking.

However attractive the prospect of such judges, there are problems with moderation as a standard. Judicial moderation tends to appeal to the party out of power, as a way of countering the dominant party’s desire to nominate judges who will pursue its agenda aggressively. “Moderation” thus often represents a tactical rhetoric, rather than a real conviction. Furthermore, as Eisgruber concedes, moderation “is a bland virtue,” one “nobody gets excited about.” Even a moderate president—of either party—owes his election to a constituent base that tends to be implacable about touchstone issues such as abortion, same-sex marriage, affirmative action, and executive power. It’s likely that our polarized political culture will continue to produce insistent demands for capturing (or recapturing) the Supreme Court and the federal judiciary through the appointment of immoderate judges with strong ideological agendas.

There is a more fundamental problem. While moderation is undoubtedly a judicial virtue, it is not the only virtue. Adopting it in the selection of the next Supreme Court justice may bank the ideological fires that have confounded all sides—but at what cost? The way of the law is gradualist, incremental, and constrained by institutional limits, but as the civil-rights struggle showed us, sometimes justice has to break through in ways that seem startling, even destabilizing. With the passage of time, that breakthrough will seem to have been all but inevitable. Today’s immoderate judge may turn out to be tomorrow’s hero.