Strengthening Constitutional Self-Government

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Approaching the Bench

On Principle, v1n2

July 1993

by Bradford P. Wilson

Most everybody has a fairly well formed opinion about the virtues and vices of their president or their Congress. But when it comes to sizing up the Supreme Court, we tend to be less sure of ourselves.

This is due in part, no doubt, to the relative privacy in which the Court does its work: since the Justices do not campaign for election and make a determined effort to steer clear of ordinary politics, their professional lives are far more private than the lives of our politicians. Apart from resignations and appointments, media coverage of the Court is sporadic and shallow. We know little about the Justices’ personalities or the internal “politics” of the Court. And our ability to influence the Court’s decisions through letters, lobbying, and downright complaining is nonexistent–which, when you think about it, is as it should be.

So we are less familiar with the Court, its members, and their work than we are with the other branches of government, leading us to have less firmly shaped opinions about the Court’s merits.

My hunch, however, is that there is something else at work here, a kind of deference to knowledge and expertise that we somehow associate more with the Supreme Court than with the elected branches of government. It is harder to stand in judgment of the Court because, after all, it is constituted not by people like us, but by supremely accomplished lawyers. We presume them to have attributes appropriate to their intensely intellectual task of legal interpretation–virtues of mind and character that we would rather stand in awe of than pass judgment upon.

As much as we are fascinated by politics, we want a part of our politics to be above politics, judged by different, loftier, less partisan and impassioned standards of right and wrong than our ordinary politics; the Supreme Court is that government institution that seems to come closest to embodying that higher standard, making us more reluctant to second guess its decisions.

But what is that higher standard? Is it not the law, and especially the highest law, the Constitution? Our respect for the Court and our accompanying caution in opining on its work, then, is owing in large part to our respect for the rule of law and our reverence for the Constitution (a peculiarly American phenomenon).

Seen in this light, however, the deference we show the Supreme Court’s judgement is justified only to extent that the Justices of the Court make a good faith effort to fairly interpret the Constitution and the laws as their makers intended. As the great Chief Justice John Marshall explained it, “Courts are the mere instruments of the law, and can will nothing. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the law.”

Is this the way our contemporary Justices understand their duty? Do they humble their own wills before the sovereign will of the people as expressed in law? Do they evince the kind of unrestrained admiration for the Constitution found in Justices of old–like Justice William Johnson who wrote in 1823 that “in the Constitution of the United States–the most wonderful instrument ever drawn by the hand of man–there is a comprehension and precision that is unparalleled; and I can truly say that after spending my life studying it, I still daily find in it some new excellence”?

Such a perspective is hard to find in Thurgood Marshall’s Bicentennial “tribute” to the Constitution, in which he said he did not find “the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.” Or in Justice Blackmun’s mockery of the Court’s aspiration to be the “dispassionate oracle of the law” as nothing more than “sterile formalism,” recommending instead that as Justices, “we will grope, we will struggle, and our compassion may be our only guide and comfort.”

Or, it must be said, in President Clinton’s embrace of “an expansive view of the Constitution,” to be enforced by new judges who, to be appointed, must prove to his satisfaction that they have “a big heart.”

As we witness the elevation of another talented lawyer and judge to the highest court this summer, we must ask again, whose will shall rule? That of the judge or that of the law? That of the “committed feminist advocate,” or that of the law? That of the “pragmatic political centrist,” or that of the law?

When the Marshal enters the Courtroom on the first Monday of this October and opens the Supreme Court’s new term with the traditional invocation, “God save the United States and this honorable Court,” I for one shall add in silent prayer, “and our Constitution.”

Bradford P. Wilson is a Professor of Political Science at Ashland University and Deputy Director at the John M. Ashbrook Center for Public Affairs.

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