Boring is scoring
Americans think the Court is political... because it is.
When my eldest was in competitive ultimate frisbee, we parents had a habit of reminding our juniors, when they got excited, that “boring is scoring.” There is no need to try the spectacular long pass when a series of short, controlled ones will do. Supreme Courts are kind of like that. If I had to design a system to appoint justices to the highest bench, I would optimize for safe, controlled, and dull.
Which is why I read US Chief Justice John Roberts’ comments in Hershey, PA with a particular kind of dismay. Hershey is home to the Cocoa Castle playground, where my kids spent many happy hours, and also home, this week, to a judicial conference where the Chief Justice decided to be interesting in public.
Here is what he said:
“I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides. I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty.“
Mass eye-rolling ensued, and while I am keen to show appropriate deference to the office, I want to say: gosh, Chief Justice, what the hell were you expecting?
There is a real distinction between political and partisan. They are totally not the same thing. We are all living inside a polity, even judges. We don’t want a bench full of marble statues. We want humans with knowledge, expertise, high morals and exceptional judgment, who interpret the law in the context of the human society they serve — a society, or polity, that contains a multitude of beliefs and ideologies. Justices come from different legal traditions, hold different views, write different kinds of opinions. That is a feature, not a bug.
What justices shouldn’t be is partisan. And mostly they aren’t, even in the United States, where they are chosen through a brutally politicized process. You only have to listen to oral arguments at SCOTUS or the Supreme Court of Canada — which I do, mostly as self-flagellation — to know that justices are extraordinarily well-informed, intelligent, and articulate. They ask difficult questions of lawyers, challenge them often, and produce rulings grounded in law, precedent, and logic. That doesn’t mean you’ll agree with them. And there are cases (see Callais) where ideology is visibly doing work. But the decisions are reasoned, and the reasoning is real.
So far, so good for the Chief Justice’s argument.
Here is where it falls apart. The American public didn’t drift into thinking SCOTUS is political because they got lazy. They drifted into thinking SCOTUS is political because the Court overturned Roe, granted the President sweeping immunity for official acts, and once decided a presidential election, all by majorities that lined up neatly with the coalition that appointed them. You can dispute every one of those rulings on the law, and people do, on both sides. But the Chief Justice’s complaint that Americans misunderstand the Court is, at minimum, in tension with the Court’s track record of delivering 6-3 rulings on precisely the issues that animate one party’s base. The public is not being unreasonable. It is drawing the obvious inference from the available data.
What Roberts can’t change is also what is actually broken: the appointment process itself. SCOTUS justices are nominated by the President with the advice and consent of the Senate — a process that, in an era of judicial nominations as televised political combat, guarantees the politicization he is now lamenting from a stage in candy-coated Pennsylvania.
Now compare with Canada. Since 2016, our Supreme Court appointments run through an independent advisory board that solicits applications, vets candidates, and proposes a short list to the Prime Minister. The process isn’t codified, and a determined PM could in principle ignore it. But it is working well. Since Justin Trudeau established it, we have had a Court that is balanced (including ideologically), knowledgeable, geographically representative, and diverse — broadly like the country it serves.
We came close to a legitimacy crisis in 2014 with the Nadon appointment under Stephen Harper. Three of nine seats on our Supreme Court are reserved for Quebec because of the civil law tradition. Marc Nadon was a Federal Court judge, and his appointment caused such a furor that the Court itself rejected him in a reference. The 2016 reform was the direct response. It produces, broadly speaking, boring justices: serious, intelligent, overwhelmingly qualified, and not personally famous to the average Canadian. That is the whole point.
The contrast with the United States is stark. There, confirmation hearings have become made-for-television events, with senators preening for cable, nominees coached through scripted non-answers, and protests in the gallery. The system is designed to be theatrical, and it produces a Court the public — quite reasonably — perceives as a political prize. Roberts’ complaint is essentially that the public is reading correctly the system that put him in the chair.
The Lawdork blog’s Chris Geidner put it more sharply, noting that the Court has always been central to American political life, and that the Chief Justice simply does not like the accountability that comes with being part of it. I might quibble with the tone. But on the substance, Geidner is right.
Roberts can’t fix the appointment process. But the one thing he could do — the one thing the American Court could do, today, this week — is stop making itself a character in the political drama. Justices who want to be seen as non-political should perhaps not headline conferences. They should not give interviews complaining that the public misunderstands them. They should rule, write, and disappear into the marble of the building. They should be, in a word, boring.
Perhaps Chief Justice Roberts could use his time in Cocoa Castle to reflect on that.