Column: Catching Air
President Biden has vowed to appoint a black woman to the Supreme Court in order to achieve more diversity among the Justices. He wants the Court to represent all Americans, and of course he wants a Justice who will be open to his political agenda.
While there is certainly nothing wrong with diversity, the Supreme Court should not be thought of as a representative political body, a “little Congress.” The Court was designed to act as an independent, non-political branch of government to safeguard all of our rights under the Constitution, even when those rights are out of political favor.
A politicized Court does not protect the Constitution
The Supreme Court and lower courts are the third branch of the federal government with its system of checks and balances. One of the Court’s essential functions is to judge whether laws enacted by Congress are consistent with the Constitution. But if the Court is reduced to a panel of judges representing separate factions, the Court’s decisions will ultimately just reflect a blending of political interests, like Congress. The Court will always tend to side with the political majority, rather than protecting the Constitutional rights of all Americans.
The Supreme Court needs to be removed from partisan politics in order to safeguard all of our Constitutional rights, including those who are outside the majority at any given time. These do not just include the rights of racial minorities or women’s groups. They also include the fundamental Constitutional rights of Americans who wish to exercise unpopular free speech or to follow their religious beliefs in an increasingly secular society. All of us at one time or another may need protection against the “tyranny of the majority.”
The problem with race and gender-based appointments to the Supreme Court, especially when tied to the Justices’ political views, is that they treat the Court like a panel of judges who each vote for whatever group they represent. Even if there were enough Justices to represent every group, the less popular viewpoints would still tend to be outvoted in the Court’s majority. A Court that merely reflects majority opinion, as opposed to Constitutional principles, ceases to act as a check and balance and loses its relevance as a third branch of government under the Constitution.
What about balance on the Court?
Many politicians and news media seek to politicize the Court by suggesting that we need more liberal Justices to counterbalance the more conservative members on the Court. But this should not be about politics and “splitting the difference” between competing political views. We need all of the Justices, whether liberal or conservative, to respect and enforce the written Constitution, not bend the Constitution as a “workaround” to suit their political goals.
The late Justice Antonin Scalia once said that he had decided many cases in ways he did not personally like but as needed to satisfy the Constitution. How many Justices on the Court can say the same thing if they view the Constitution as a “living document” to be massaged and stretched to suit their view of the country’s needs? How can an “evolving” Constitution protect us from the country’s frequent mood swings and excesses that are so often regretted years later. Think about Jim Crow race discrimination or the internment of Japanese Americans during World War II, both of which were allowed by the Court for far too long.
Supreme Court appointments based on identity politics and political views would reduce the Supreme Court to a “little Congress,” defeating the Court’s essential purpose to protect all of our Constitutional rights, even when those rights are unpopular. Whatever short term political advantage one party achieves may well turn out to be counter to its own interests in the future and will never serve the long-term interests of the Country as a whole.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »