Replacing Rehnquist: Rhetoric and Reality
Amongst the more entrenched democracies of the world, there are few more partisan, politicized, and starkly fundamentalist Supreme Courts than the (soon-to-be) Roberts nine. Most often, political commentators attribute the characteristic traditionalism of the American Court to the Constitutional mandate of yore. The almost fanatical devotion of even the most mainstream American public to the Constitution bears testimony to the power of a 200 year-old document.
It’s political suicide to suggest that the Constitution is outdated or that the processes, rights, responsibilities, and liberties spelled out by our forefathers (and not without contention) might be just a little bit less than biblical in permanence.
Don’t get me wrong: the US Constitution has not yet hit its expiry date, and it may never. Its underlying ideologies were borrowed from some of the world’s most intelligent and fore-thinking philosophers. But, to claim that, verbatim, the Constitution could not stand revision is to live in the realities of a time that preceded slavery and industrial progress and approached freedom as a virgin: with expectation and eagerness, but no small degree of trepidation and no real idea of what lay in store.
One of the better comparisons to the Constitutional dilemma comes, ironically, from fundamentalist theology. According to the popular analogy, just as all but the most fundamentalist Christians now view the Bible as a spiritual guide rather than literal truth, so should our highest Court (caretakers of the Constitution) recall the spirit and intentions of the document without blindly ascribing to its every word. Although science makes it far easier to poke holes in the New Testament than the US Constitution, I find the basic comparison appropriate. Ultimately, it is the responsibility of the caretaker to not only guard and polish his charge, but to renovate and modernize it as necessitated by the stresses of time and advance. The best recourse to an obsolete Constitution is a Court that observes it in meaning before wording.
Conservative rhetoric concerning an activist court is thus, unhappily, little more than rhetoric. “Activism” is a pseudonym for what University of Chicago Professor Cass Sunstein terms “perfectionism,” referring to those judges who regard the Constitution as a vague and sweeping framework and, in their most sinister conception, little more. But the US hasn’t had an activist Court in half a century, and only one or two judges in the Rehnquist/Roberts Court could be even remotely described as activist. A revisionist approach to the Constitution will not be taken by the Court anytime soon. And, perhaps more importantly, “Constitutional activism” does not necessarily imply leftist motion; indeed, it should involve intelligent progress, both conservative and liberal.
The influence of the US’ powerful Constitution on the direction of its court is unmistakable, but the partisanship that affects every judicial appointment plays at least an equal role. Sadly, it is hard to look at the Supreme Court these days through anything but colored glasses. Shades of blue distort the more conservative members of the Court into monsters of tyranny and threats to individual liberty and privacy. Liberal Americans familiar only with Roe v. Wade and a select handful of other cases are quick to demonize Justices Scalia and Thomas, ignoring their qualifications and sound, well-reasoned judgments. Meanwhile, the red glasses of judicial appointment seem to instill paranoia in otherwise level-headed Americans: through those eyes, David Souter becomes a traitor, Sandra Day O’Connor a socialist.
Most disconcerting may be this perception of betrayal: branding Souter or Anthony Kennedy as a traitor, or any other member of the Court who turned out more liberal than the Republican administration that nominated him expected, is simply ridiculous. Judges should be just, not blindly partisan.
Although there is no reason to doubt that he will set an exemplary judicial standard for years, the attitude surrounding Roberts’ nomination is somewhat toxic in this respect. The Bush administration did a fairly good job of selecting a candidate who had a fantastic record and impeccable qualifications, and then spinning the appointment as an appointment for those reasons only. The atmosphere was less positive in the Senate and, in particular, among both conservative and liberal interest groups. Conservatives were worried that Roberts might be a turncoat and go the way of Souter or Kennedy, while liberals were concerned about Roberts’ supposed “neoconservative” credentials, most of which were apparent when he was a litigator rather than a judge.
Of course, Robert’s judgments will be colored by his experiences and opinions. And, of course, those opinions will change over time. But just as his opinions now should never be observed as prejudices, so should these changes in opinion never be regarded as mutations, with all the negative connotations of that word. I profoundly hope that Sandra Day O’Connor’s replacement understands these maxims better than the interest groups and polarizing partisanships that mar what should be an intelligent debate. Somehow, this seems like a more important issue than elephants and donkeys.
