As the process of affirming the nomination of a new Supreme Court Justice gears up, the September Atlantic had a couple of interesting commentaries on the performance and role of the court. If I had doubts or worries about the Court before reading these articles, they have not been assuaged.
It seems difficult to believe that the current approval process and political climate would allow for anyone of intelligence coupled with strong convictions to ever make it to the court, unless they followed such a conservative, low key, non-political course that there is nothing anyone can object to in their public record. But then, is anyone who has followed such a course really the kind of person we want on the Supreme Court? This is my question.
But then, according to Stuart Taylor, Jr. in a commentary in the September 2005 Atlantic Monthly, The Supreme Court seems hardly relevant as it is. His description of the court as out of touch and operating from an ivory tower seems very close to the truth, and very far from the court we need. This is not to say the justices aren’t extremely smart and extremely dedicated and well-meaning. But how can a court determine the fitness of the laws of the country if it has no practical experience in how the law in this country actually works? Is the court truly an abstract authority? Or does it need to be a working court that is the highest cog in the machine, the oil that keeps the entire system running smoothly and well. Someone has to decide all the quotidian issues that make the courts and therefore society work and work well.
Is the court a court or a legislative body? Is it a platform from which hard-working brown-nosers finally get their day to spout sophomoric philosophies masquerading under the guise of law.
In another commentary on the same subject, Without Precedent Benjamin Wittes:
"The justices don’t have to observe precedent so they fudge doctrine. They don’t have to describe facts accurately, so they take liberties. They don’t have to restrain themselves, so they don’t. And they don’t have to write opinions rigorously enough to give precise guidance to the lower courts, which do not have the luxury of winging it".
Perhaps the issue shouldn’t be term limits on legislators but term limits on Justices.