Glenn Reynolds: "Ginsburg flap shows Supreme Court, justices are too important"

By An Old Friend

Mon, Sep 21, 2020 10:51 p.m.

Glenn Reynolds: "Ginsburg flap shows Supreme Court, justices are too important"

AOF: I think there's a larger lesson, too: The federal government is too big and does vastly too much, doing much of that badly.

https://www.usatoday.com/story/opinion/2020/09/21/ruth-bader-ginsburg-passing-brings-political-chaos-column/5846844002/

Ginsburg flap shows Supreme Court, justices are too important

SCOTUS fight reveals something is wrong with our judicial system and the state of our nation.

Glenn Harlan Reynolds

Opinion columnist

September 21, 2020

Ruth Bader Ginsburg has died, and the country — or at least its political class — is descending into what will no doubt be a multi-week screaming fit. In fact, the screaming has already begun.

But that fact tells us something about the state of our nation, and it's not anything good. When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there's something wrong with your political system. And when your judicial system can be redirected by such an event, there's something wrong with your judicial system, too.

The mess of our political system

Our political system, of course, is a mess in general. Partly because of the influence of social media, as I argued in my book, "The Social Media Upheaval," and partly because America has arguably the worst political class in its history, pretty much everything seems to send it into screeching hysteria. (I'm old enough to remember when "activists" threatened FCC Chair Ajit Pai and his family over Network Neutrality, something that was a source of screeching hysteria a few years ago but that now hardly anyone even remembers). I have some ideas on how to fix that, but those will have to wait for another column. Suffice it to say that if what we're looking for is a long time horizon, self-discipline, and a willingness to forego immediate advantages for the long-term good of the nation, we've got the wrong political class.

So let's look at the Supreme Court.

Why does Justice Ginsburg's replacement matter so much that even "respectable" media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg's replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.

That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn't used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn't the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.

The point isn't whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there's no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

Almost as bad, the Court is highly unrepresentative. That doesn't matter when it's deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of America's elite political class. Which, as I mentioned earlier, is in general pretty terrible.

Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices — Justice Robert Jackson was the last — didn't have law degrees, having "read law" after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwick's words, "judicial thoroughbreds" with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.

Our politics is dominated by a court that decides political issues

So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.

In an earlier article, responding to Democrats' plans to "pack" the Court with several additional justices whenever they get control back, I suggested going a step further, and add fifty new justices, one each to be appointed by every states' governor. My proposal wasn't entirely serious, being meant to point up the consequences of opening the door on this topic. But on reflection, maybe it was a better idea than I realized.

Would my approach have problems? Sure. But would it be likely to bring America to the brink of Civil War? No. Which is a pretty major advantage over our present situation. Keep that in mind as we navigate the coming storm.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors.