What was so royal about the old way? Well, the court was believed to be moved by esoteric considerations the rest of us mortal subjects need not understand, but which we should nevertheless accept. It even used to be thought rather bad form, if not actually vaguely treasonous, to inveigh against its rulings (as distinct from defying them, which is another matter). Indeed the very phrase in which people like me used to seek to quell complaints about desegregation decisions- “It is the law of the land” has a certain quaint ring to it, something a herald might well proclaim after a shrill toot or two on a trumpet and a couple of “hear ye’s.” The justices themselves must never be interrogated or even discussed except in extremely respectful terms, I thought, and they should be allowed to decide which of their personal and professional mysteries to maintain as secrets. Until relatively recently covering the court was like dealing with a journalistic obstacle course: nothing was explained or summarized or even given out in a helpful or timely manner.
To this day, those who go to the Supreme Court to hear cases being argued must observe a certain decorum, and they always look vaguely frightened by the stern ushers who rove about like school proctors keeping an eye out for whisperers and other miscreants. But except for a few vestigial things like this, the Supreme Court is no longer to be confused with a royal court. Some of the change has come from outside, some from within-that is, from the revealed behavior of some of the justices themselves.
The press and politicians have gradually ceased granting the members so huge a presumption of moral rectitude and intellectual integrity. Exposes have been written about them, and political campaigns have been waged against them from both right and left. Just about all the taboos that used to be in place concerning what a senator might properly ask a court nominee in a confirmation hearing have vanished. Anything goes. What has also vanished is the idea that a president is pretty much entitled to the justice of his choice, short of evidence of insanity or actual prosecutable crime.
But to some extent the disappearance of the old reverence is a result of what various justices themselves have done. It used to be assumed that, once on the court, for instance, these jurists were themselves scrupulous about keeping out of political, commercial, governmental and other affairs that would compromise their objectivity if the subject came before them. But now we have learned that a number of these justices outrageously violated the supposed constraints on their involvement in outside matters and did so habitually. We have also been exposed to much more evidence of some of their own internal quarrelsomeness and feuding. They have, in other words, or some have anyway, contributed mightily to the scaling down of their own and their institution’s once august image.
I think some of this scaling down and demystification was overdue. I even think the much less perfunctory and more critical, intense questioning of prospective justices is a good thing. They should not be made to discuss pending issues and cases, but they can fairly be asked to discuss a lot more than they used to be. But I sense in the air in Washington much too much feeling that the court has become a political instrument and should be regarded as one. I have heard distinguished legal scholarship disparaged by some Clintonites as a hang-up over “niceties” and “nuances” that are not relevant to the causes of the moment. The court is political, the line of reasoning seems to run, so let’s not fiddle around with that obsolete, wheel-spinning stuff.
But in fact going political in making appointments rarely gets a president what he wants. The Reagan-Bush presidencies were given an extraordinary five vacancies to fill, sought to fill them in a way to create an antiabortion majority and ended up seeing enough of them go over to sustain Roe v. Wade. The history of appointees has been one of constant surprises to their patrons. Earl Warren, rightly remembered and honored now for the landmark desegregation decisions, was known as a prosecutor in California for his zeal in supporting the removal of American citizens of Japanese ancestry to work camps during World War II.
In truth, though we don’t want the court to be some stuffy, Buckingham Palace-like institution that gives us only the back of its hand, we do need the court to retain a good portion of that detachment from the political hurly-burly and pressure that form our daily national life. We need justices who can see through and beyond that, who like the writers of the great Supreme Court dissents in the past can see where current political imperatives and ideas of what is best and right may be, in a word, wrong. Bill Clinton has listed all manner of qualifications for the justice he is going to appoint. But above all he needs a nominee with the wit to see through the daily political palaver to the precious constitutional values that are in constant need of protection and the guts to pursue justice when it conflicts with current wisdom and popularity. He needs, in short, a nominee who will bring a little of that now much disfavored personal distance and detachment to the job, not a royal wanna-be, but a good old-fashioned justice.
