An Unsurprising Court

The Supreme Court is in deep trouble and that didn’t begin with what happened in a Senate hearing room on September 27. It has been building for years and that’s a serious problem for all of us. The problem, strange as that may seem, is that the court has become unsurprising. It’s unsurprising in the sense that we can usually predict, if not every court decision, the vote of its individual members. It isn’t only that the court is divided but that it has become much more partisan, most disturbingly with hardened preconceived opinions. It isn’t only the rush to a court conformation that we are currently witnessing but what often seems a rush to judgement from that court even before arguments are made.

I join others in believing, Brett Kavanaugh’s performance Thursday last was disqualifying. It wasn’t that he denied the accusations of Dr.Christine Blasey Ford, but rather the tone and highly partisan tenor of his shrill statement and his responses to questions by duly elected United States Senators. Had a witness behaved in that manner before his own or any other courtroom, he or she would likely have been held out of order or even in contemp. And contempt is the right word here, because this nominee, rather than showing any semblance of judicial restraint, looked on his questioners with contempt and shocking disrespect. I have profound issues with Kavanaugh’s conservative views, but those don’t necessary disqualify him from service. The injudicious behavior he displayed does. Would I want to be before his court or, if a senator, vote him a lifetime appointment to the ultimate court in the land? Would I believe that he would come to the bench with an open mind, independently judging each case as it comes on its facts and merit? Absolutely not. Unsurprising, which might be true for any of this or other president’s appointees, is bad enough but his sorry display went too far.

This is not to suggest that we are never surprised. Chief Justice Roberts, considered a dependable conservative, voted to uphold major components of the Affordable Care Act. But that was the exception for him and as are similar surprise votes of his fellow justices. Should Roe come before the court, we can be sure Justice Ruth Bader Ginsburg will vote to uphold it in its entirety. Unsurprising. I am not naïve enough to believe core beliefs or political inclinations are left at the door when someone joins the court or in our system, where judges are presidential appointments, that politics never comes into play. It surely does and surely has. We are human. Nonetheless, we hope that judges, at any level, are driven more by the robe that they wear than who appointed them. We expect fair and objective decision making — based on facts presented not on preconceived opinions. We hope for the surprising.

Do I favor the appointment of judges and justices who reflect my view of things? Of course, I do. It’s something that is factored into my vote in every election cycle, something too many of us ignore. But I do also hope that the office will be a burden on whoever takes it, that those appointed especially to the Supreme Court, will surprise me, at least some of the time. Public trust and public duty, the concern for all not some may be seen clichés, but they are just the opposite, essentials to make a democracy work. We depend on them as ideas that will guide those who raise their hands to take the oath for any public office. For the judiciary that means not to being consistently unsurprising.

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