For much of our history we have not particularly wanted, and have generally not selected–and even now in most of our state and federal courts do not particularly want and generally do not select–ideologues to serve as our jurists. As we are beginning to learn to our dismay, it is equally if not more unwise to name them as Supreme Court Justices. The temptation of short run or single issue political expediency should be resisted in favor of a broader vision of the country and its future. Fidelity to doctrinal orthodoxy at all costs should not be the sole, or even a very important, consideration for appointing any judge, let alone one with the life-long, unreviewable tenure of a Supreme Court Justice.
Whatever one’s politics or personal convictions, the administration of justice is ill served when courts begin to approach issues like arm-chair philosophers from the eighteenth century conducting thought experiments or as dilettante historians seeking answers from an imperfectly knowable past to questions posed by circumstances that the past never confronted. We should remember that the job of any judge, including a Justice of the Supreme Court, is to grapple with real world problems and often immediate consequences for people: their safety, their health, the freedoms and wherewithal they have or don’t have, their families, the way they treat other people and other people treat them.
When we lose sight of the actual job of a judge and think of issues abstractly and as test cases for ideological purity—and by “we” I mean all of us, including Justices themselves—public understanding and respect for decisions diminishes–and so, inevitably, does respect for the rule of law itself. Especially for a Court that largely chooses its own docket, the bench is the place for restraint and reflection in choosing, framing and dealing with questions that need to be decided to end confusion and uncertainty and foster the orderly functioning of society and its legal institutions. The cases the Supreme Court decides to hear should not be chosen primarily as means to illustrate abstract theories or because they appeal to some Justices’ intellectual or doctrinal preferences. The cases the Supreme Court chooses to decide are enmeshed in the messiness and disorder of the real world with consequences that are not simply doctrinal but all too visceral in the short term and often all too unpredictable in the long run.
Throughout much of our history Supreme Court Justices have had political affiliations, of course, and we have often focused on their outstanding academic credentials. But sometimes those chosen were people of distinction reaching far beyond influential schools of legal thought, people like Charles Evans Hughes, Robert Jackson, or Hugo Black, with wide and varied experience, including as diplomats, political office holders in both the federal and state governments, and prominent careers in the private sector mixed with public service. Even the greatest Justices had their faults, to be sure, and there has never been a perfect Supreme Court. But when character and perspective served as primary criteria, the Court was more widely esteemed as an institution and its decisions by and large far less fractious.
The Supreme Court has always been an unusual court and singular institution, with immense potential power, no effective oversight or review and a small, largely self-selected docket of cases. The Justices earn respect for their institution when they temper strife with wisdom and perspective. When they view themselves, or allow themselves to be viewed, as agents of social change they forfeit that respect.
A court’s final product at the end of the day is called a judgement. It is the Justices’ wisest, most informed judgment, unblinkered by preconceived dogma, that we should want and expect them to apply to each and every case they choose to hear and decide.