Supreme Court needn’t reflect majority rule

In the flurry of public and political attention on the confirmation hearings of Judge John Roberts, who has been nominated to replace William Rehnquist as the Chief Justice of the Supreme Court, I suggest we step back to examine the Constitutional values driving judicial appointments.

Judge Learned Hand, perhaps the most influential American judge who never served on the Supreme Court, remarked in his book “The Bill of Rights” that “For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.”

Judge Hand presents us with two challenges: What is the proper role of the Supreme Court in the governance of our society – should we be “ruled” by the court? And, how do we best pick the court’s justices?

Each American era across the last 200-plus years has, to a greater or lesser degree, sought to fashion its own answer to the first of these questions. Our founders believed the judiciary to be the “least dangerous branch.” Under the leadership of Chief Justice Marshall through the early part of the 19th century, the court would become the reservoir of vast, but largely untapped power. Later, the court would serve primarily to protect property interests. More recently, under the leadership of Chief Justice Earl Warren, the court would author a progressive social revolution.

Should the court stay out of the way? Should it facilitate prevailing popular policies? Should it serve as a bulwark, protecting minority interests against the tyranny of the majority?

The Constitution doesn’t define the court’s role in society. It merely says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court …”

Thus, the appointment of justices is left in the hands of an elected president who is to be advised by an elected Senate. Does this mean the Constitution intends the court to facilitate the will of the prevailing political majority? After all, the majorities the president and Senate represent are entitled to expect the appointment process to serve their interests. This is true in spades if both institutions are led by the same political party.

Certainly, advocates for a non-majoritarian role for the court do not have the advantage of a Constitutionally-mandated super-majority requirement for the selection of judges. But, precisely because it is the president and the Senate that cooperate to select the court’s justices, the Constitution seems to compel the non-majoritarian view.

After all, as between the House, Senate and president, the Constitution places the appointment process in the hands of the least majoritarian of institutions. At the time of the framing of the Constitution, neither the president nor the Senate was directly elected by popular majorities. The President still is not. From this perspective, it is difficult to argue that the judicial appointment process was meant to make the court beholden to the political majority.

Significantly, another Constitutional provision suggests the non-majoritarian role for judicial appointments. It ensures that the judges of the “supreme and inferior Courts, shall hold their Offices during good Behavior,” that is … for life. Few have taken that mandate as seriously as Chief Justice Rehnquist. We have seen how life tenure can carve out a radical form of judicial independence that allows the court, from time to time, to react against or move in advance of the majority.

So, it appears the U.S. Supreme Court is indeed empowered to operate free of the will of the popular majority. This non-majoritarian mandate is clear in both the terms of the appointment process and the life tenure bestowed on the justices.

Just how a Chief Justice Roberts might give force to that mandate is the constitutional journey on which we seem destined to embark.