The retirement of Associate Justice John Paul Stevens, coupled with President Barack Obama’s nomination of U.S. Solicitor General Elena Kagan to take his place, means Washington, D.C.’s favorite kabuki dance has started. A potential new member of America’s highest court is trotted out to respond to charges, made by Washington insiders, that he or she is too committed to a particular position on the hot button issues of the day. Or not committed enough.
The dance misses a far more significant concern: that the United States Supreme Court is the least democratic institution in our federal system—but the men and women sit on it are among the most insular individuals in our society.
Is the nation well served by this state of affairs, the court’s recent decision to close the main entrance to its building being emblematic of the issue? Is the court ruling for America or over it?
1. At a Class Reunion At a State School
If Kagan is confirmed, every single member of the Supreme Court will have attended Harvard or Yale. It’s fair to ask why, exactly, nine people from the nation’s most elite schools have so much sway over the policies and lives of the rest of America. These nine, products of most cloistered and magisterial academies will likely decide issues involving broadband access, health care mandates, environmental regulations, conflicts involving the War on Terror, and more. Does it matter that their Ivy League background has given them little to no exposure to any of these matters on any practical level?
2. The Military
If Kagan is confirmed the only time you will see a Supreme Court justice at the American Legion or the VFW is if they stop in to use the phone. With Stevens’ retirement, none of the justices will be veterans of the U.S. military. Does that matter?
3. Using Twitter While Holding an iPhone at an Internet Cafe
Even if Kagan is confirmed, don’t expect to see a Justice tweeting anytime soon. In a nation that is rapidly becoming a digital democracy, the Court is made up of digital neophytes — individuals who, as they readily admitted during oral argument earlier this spring, didn’t know the difference between texting or paging or whether e-mail servers were used in either of those activities.
4. At a NASCAR Race
While many a Justice can be seen at the Kennedy Center or the Washington Opera, don’t hold out any hopes of seeing many, if any of them attending a NASCAR event. Without disparaging brie and wine, there is a huge disparity between Middle America’s love of NASCAR and an appreciation for opera. It’s probably the case that you won’t see many of them at a Toby Keith concert either.
5. At a Protestant Church
One more place you’re not likely to regularly see any of the Supreme Court justices is attending regular worship in a Protestant or Evangelical Church. It is ironic that in a nation predominated by Protestants and whose earliest founders were motivated by their protestant faith, with Kagan’s confirmation there will be no Protestants on the Court.
The Court plays a pivotal role in our American system — perhaps even greater than our framers ever contemplated. It’s make up matters. The conflict between the competing visions of the Court’s role in contemporary legal circles may be the only thing that has prevented it from taking for itself even more power, influence and even control.
One view, which is perhaps best represented by the view of Justice Antonin Scalia, is that the Constitution means what it says and, of equal importance, says what it means. It is not a document that is open to expansive interpretation nor should it be distorted to respond to prevailing political or social pressure.
The other view, which Stevens increasingly adopted during his years on the bench and that Kagan is believed to hold, is that the Constitution is a living, breathing document and that our interpretations of what it says and what it means should change with the times. The later form of thinking leads to judicial activism – also called “legislating from the bench” – that changes the Constitution and its meaning without bothering to formally amend it as the Founding Fathers intended.
If the job of a Supreme Court justice is to rule on the constitutionality of laws and civic practices within the boundaries established by the Founders – that is to act in a narrow fashion – then the cultural composition of the Court doesn’t really matter very much. If, on the other hand, the job of a justice is to find ways to make the meaning of the Constitution reflect the values of contemporary culture – and not the other way around – then the Court needs to look a lot more like America.
Peter Roff is a senior fellow at the Washington, D.C.-based Institute for Liberty. Horace Cooper is director of the Institute for Liberty’s Center for Law and Regulation. Both Mr. Roff and Mr. Cooper are contributors to the Fox Forum.
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