The progressive commentator Chris Hayes tweeted the following jab at Judge Neil Gorsuch’s solemnly apolitical responses to hostile questioning from Democratic Senators:
"Who me? I'm just a humble law-applier with no views whatsoever. It's all as clear cut as painting a fence!"
— Christopher Hayes (@chrislhayes) March 21, 2017
Hayes is definitely on to something: Like most of his recent predecessors, Gorsuch is taking care to give superficial answers that cast the Supreme Court’s work as a bloodless and objective enterprise, and that minimize the degree to which the Court is actually at the epicenter of the most intense moral battles in the country.
This isn’t unique to Gorsuch; it’s a necessary product of the way our constitutional system works (or fails to work) at the present moment.
The Supreme Court today wields truly enormous power; probably more than at any time in our history. That’s in part because the as the elected branches have grown more dysfunctional, the courts have filled the space they have vacated and started claiming jurisdiction over more political questions than before. And it’s also because the country has come to accept, in the last 50 years, what the former Stanford Law Dean Larry Kramer calls “judicial supremacy”—that is, that Court opinions are sacrosanct in a way they might not have been during earlier chapters in American history.
Add to all this the profound and growing gap between the way red and blue America see the country, and it’s hard to make the case that a single body of nine unelected lawyers, appointed for life, should have so much power to determine the outcomes of the most charged battles in American politics—or at least, to square this fact of our constitutional system with our democratic political culture.
To handle the contradictions inherent in the Supreme Court’s role, Americans have developed what might be called a “fiction” about how the body works: Namely, that it embodies a kind of super-democratic, extra-partisan consensus; that it divines the Constitution’s true meaning without regard to partisan political preferences. The Nine are just referees.
People don’t need to believe this all the time (indeed, most Americans don’t) but it has to be reflected in certain public rituals, like presidential nomination statements and Senate confirmation hearings.
This fiction isn’t necessarily bad; all political systems require the performance of some agreed-upon conventions in order to work. But it means that our Supreme Court confirmation processes are condemned to banality for the foreseeable future.
Merely demanding that Supreme Court nominees break from their talking points at confirmation hearings and discuss their views in more detail is a dead-end; the institutional pressures on judges to cling to absurd levels of generality are too strong. If we want to have more frank Supreme Court confirmation hearings the only solution is to lower the stakes of individual High Court nominations so as to reduce the need for the fiction of the Court-as-disinterested council of moral philosophers.
There are a few of ways of doing this. The most plausible fix is probably term limits; if judges didn’t serve for life, the influence of any given one would be limited. Other institutional changes are also possible, like requiring a supermajority vote to overturn certain kinds of democratic legislation. The best solution, of course, would be to rejuvenate the elected branches of government (especially Congress) so that they can re-occupy some of the administrative and political space that courts have claimed.
Until then, Supreme Court justices will have the opportunity to leave more of an imprint on American society in their lifetimes than any public officials who don’t occupy the Oval Office. And they do this without ever being elected. This may not be a bad thing, compared to the alternatives. But it requires a kind of make-believe to square with our democratic aspirations. And that means that potential Justices will continue to evoke a kind of practiced and not-entirely-believable political apathy when they go before the cameras to audition for the job.