Elena Kagan’s confirmation may be inevitable, but her style of judging and her interpretative philosophy are unknown. Nevertheless, I’ll venture a guess: she’ll be a moderately liberal, moderately predictable justice similar to David Souter. And I’ll venture another guess: when I flip the coin that currently resides in my pocket, it will land on heads. The Supreme Court has become unquestionably important, yet here we are, deciding its membership with little information. That her nomination comes from a liberal president is rife with irony.
In his short tract Active Liberty, Justice Stephen Breyer argues that the goal of increasing participation in American democracy should guide Supreme Court decision-making. So when the Court ruled in 2003 that race could play a factor in the admissions decisions of the University of Michigan Law School, one justification was that successful participation in America’s diverse civil society required exposure to diversity during the formative law school experience.
The reasoning of the Court differs from the conversation of the general populace. When affirmative action comes up, liberals insist that we need to rectify past injustices while conservatives respond that two wrongs don’t make a right. Both miss the point. As Breyer notes, Michigan Law—the pro-affirmative action voice—didn’t press the “historical discrimination” argument.
I actually find the Court’s reasoning rather persuasive, but some social scientists (like John McWhorter) don’t. They think that affirmative action creates an entitlement structure that ultimately harms the favored race. But it doesn’t matter what I think, and it doesn’t matter what John McWhorter thinks, and quite frankly, it doesn’t matter what you think, either. The Supreme Court has annexed the deliberative process and decision making. In our government of the People, the opinions of most people simply don’t matter.
Affirmative action is only one example. On abortion, gay marriage and the role of religion in the public sphere, the real debates occur in courtrooms and law schools—not town halls, churches and schools. And while the Court interferes in many areas of governance, other unelected bureaucracies follow suit. Even the healthcare debate, fractious as it was, was at least partially a ruse. So much of actual health policy will be made by unelected regulators determining what insurance policies satisfy their arbitrary standard. And of course, the most powerful man in the world is not Barack Obama, but our brilliant—and unelected—Federal Reserve Chairman Ben Bernanke.
Our Founders established a Republic, and that inevitably means that our representatives—not us, at least not directly—govern our country. That’s fine. I don’t want Athenian or even Californian-style democracy, and I shudder at the thought of Congressmen Ron Paul and Barney Frank voting on monetary policy. But this is not what James Madison had in mind. The meaning of “equal protection under the laws,” and indeed, what our society means by “life” are especially important questions, and while the Supreme Court should set boundaries, it shouldn’t involve itself in the minutia of answering them. In today’s America, it does.
Liberals might counter that on campaign finance and gun control, the constitutional minimalists on the right have subverted the will of the People, too. Maybe the liberals have a point, maybe they don’t. But the larger issue remains: should judges approach the law with an eye toward deciding public policy, or investing power, whenever possible, in the deliberations of citizens? When the standards of decency evolve in our society, should people or their judges decide how the law evolves to fit?
This gives us a standard by which we should measure Elena Kagan. Any opinion is admittedly premature. It’s depressing that our government decides on such an important policy maker without knowing a thing about her. As David Brooks wrote today, her entire life is an exercise in avoiding controversy. But decades from now, will we say that she contributed to the continual erosion of the People’s responsibility for governance? The fact that we have absolutely no idea what our answer might be is the strongest reason to oppose her nomination.