The Supreme Court confirmation battle is on. President Trump has nominated Judge Brett Kavanaugh to fill the Supreme Court vacancy left by retiring Justice Anthony Kennedy. If you don’t want to hear cries of woe and doom from the left, then now would be the time to retire to a desert island for at least a couple of months. Even before the president’s announcement, some liberal court-watchers were already warning of the end of the world as we know it.
The rhetoric will only get shriller as the battle heats up, though it will be hard to top the long-reigning champion of judicial doomsday warning: Sen. Ted Kennedy. Here’s how he envisioned the consequences of confirming Reagan Supreme Court nominee Robert Bork some 31 years ago: “Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids,” etc., etc. — it doesn’t get any better from there.
Meanwhile, Republicans and conservatives will protest (almost sincerely) that they have no “political” ax to grind but only mean to have judges who heed the Constitution. But of course to have a solid majority committed to heeding the actual Constitution (not some mysterious ever-expanding spirit of the Constitution, with “penumbras” and “emanations” and all) would in fact be a development of huge political significance. So the liberals are not wrong to worry about a possible sea change in American politics. Ted Kennedy was not wrong to think that today’s America might be significantly different (I would say better) from what it has become had Robert Bork been confirmed to the court 31 years ago.
The court’s decisions have a profound effect on our moral and political culture in the long run because we regard them as the highest authority on the meaning of “rights,” and the idea of rights is our most authoritative political idea, the philosophical touchstone of our political community. Everything comes down to rights, and the Supreme Court gets to decide what rights we have. No wonder, then, that confirmation battles tend to be so tooth-and-claw, since the meaning of the very idea that defines our social contract is at stake.
Already a generation ago, around the time of the Bork hearing, I was surprised and dismayed to find that even my generally conservative and Constitution-revering students passively accepted the court’s claim to near absolute authority in deciding the meaning of rights and thus the meaning of the Constitution. The buck has got to stop somewhere, right? Somebody has to be granted the power to settle divisive questions. And the Supreme Court, my students assumed, must be this ultimate deciding power. Like, the principle is right in the name, isn’t it — aren’t they “supreme”?
Like too many Americans, my students had accepted the positivist claim made by Chief Justice Hughes more than a century ago that the Constitution means whatever the Supreme Court says it means. On this widespread view, the Supreme Court is in fact our sovereign.
What is the alternative? Must not sovereign authority reside somewhere, in some single person or institution? In fact, no: The American Constitution was built upon a very different idea, the idea of self-government, or of the sovereignty of the people. The idea of popular self-government was in fact directed against the whole logic of sovereignty, against the idea that there must be some Final Decider to settle difficult questions. According to the original American understanding of constitutional self-government (reaffirmed by Abraham Lincoln), each of the three branches of the national government would be responsible for honoring the Constitution according to its best lights, and any conflict among interpretations would be decided over the long run by the interests and convictions of the great majority of the people as reflected in the elected branches.16 comments on this story
The linchpin of this revolutionary redefinition of sovereignty was the idea of a constitutional people — a people whose passions and interests would be shaped and controlled by their educated reverence for the basic, publicly shared principles of the Constitution. On this understanding, individual rights were important but circumscribed by the more fundamental right of popular self-government.
We have traded constitutional self-government under “the laws of nature and nature’s God” for the promise of ever-expanding rights under a “living” (that is, plastic) Constitution. The sovereignty of five Supreme Court justices, and the fevered battles that accompany the naming of a new member of this sovereign body, are the price we have paid for this dubious promise.
Ever-expanding rights and the sovereignty of The Five are two sides of the same coin.