Shifting the Balance

Andrew E. Busch

July 1, 2005

In the wake of President Bush’s appointment of Judge John Roberts to the U.S. Supreme Court, assorted commentators have objected that Bush’s choice would shift the balance on the Supreme Court because Roberts seems to be a conservative and Sandra Day O’Connor, whom he would be replacing, was a "swing" vote whose philosophy was moderate enough (or incoherent enough) that she could vote either way on virtually any case.

Lurking behind this objection is, of course, a partisan or ideological motivation in many cases. While hiding behind concern for the moderate character of the Court, many if not most of these commentators are really concerned only that the Court might shift in a conservative direction. Had John Kerry won in November 2004, you can be sure that they would not be worried that another Ruth Bader Ginsburg might shift the fine moderate balance of the Court; if they had been offering their views on politics in the late 1930s, you can be equally sure that they would not have advised Franklin Roosevelt to appoint strict constructionists so that the balance of 1935 would not be altered.

Nevertheless, it is also worth dissecting these concerns on face value. Some are undoubtedly uttered sincerely, and others at least partly sincerely, and the assumptions that are implicit within them are themselves worthy of note—and of refutation.

When one considers more thoroughly what the concern with maintaining the "balance" of the Court mean, it is clear that at its heart lies a profoundly anti-democratic understanding of the Constitution and the role of the Supreme Court.

On one hand, this is not automatically something to be alarmed at. Indeed, the principle of constitutionalism is that the Constitution as a whole, and guarantees of individual rights in particular, are above the daily ebb and flow of majoritarian impulses. The Supreme Court was designed to be an unelected body with lifetime terms precisely so that it would remain independent of those daily impulses.

However, it is equally clear that the Framers meant our government to be one that was made legitimate by its fundamental dependence upon the consent of the governed. The Supreme Court was to be the Supreme Court, not the Supreme branch, and the President, Congress, the states, and ultimately the people themselves were to be guarantors of the Constitution. Anything else was not self-government but a dictatorship of judges, no matter how benign.

So how are complaints about the potential for a shifting balance on the Court indicative of a frame of thinking that is willing to submit to a dictatorship of judges? Because the ability of the President to use his nominating power to shift the balance of the Court represents the strongest check the people possess against the Court when it threatens to put itself above the Constitution. The people elect the President, the President selects the Justices, and the Court can change direction. (Not that it always works out that way, as Justices Souter and, to a lesser degree, Kennedy and O’Connor herself attest.)

When boiled down to its essence, the argument of the critics is that this check should be neutered by requiring the President to accept and perpetuate whatever balance may already have been struck on the Court. In this view, only the interior machinations of the Court itself should be allowed to produce judicial change. The people and their elected representatives should sit down and shut up. The Constitution does not belong to "We, the People," but to the Supreme Court, which is indeed the Supreme Branch and should never be subjected to so vulgar an exercise as correction by the nation that actually has to live under the Constitution that the Court invents for it. This is a species of aristocratic elitism that most Americans think must surely be confined to the British House of Lords or party functionaries in China, so its adherents can never openly declare their views. They must consequently couch them in innocuous declarations that George Bush should not appoint anyone who might shift the balance on the Court.

Most Americans are prudent people who believe in "moderation," at least as they individually define it. Hence much in Judge Roberts’ confirmation battle may hinge on whether Americans can be persuaded to adopt the critics’ understanding of moderation, or whether they recognize it for what it is: A most immoderate claim of power for one branch of the federal government against the other branches and against the people themselves.

Andrew E. Busch is a Professor of Government at Claremont McKenna College and an Adjunct Fellow of the Ashbrook Center.