The Supremes issued a couple big opinions this week. Then the country basically lit itself on fire. There’s a lot of celebration, and rightly so. There’s also a lot of hatred from the right for the judicial authority which has so finally demolished the debate. The legal issues are done. Gay marriage is now legal. Full stop.
There’s a lot of talk about “activist judges,” a phrase that comes up from time to time. The Tea Party has rehashed some old language to complain about the judges. Ted Cruz, the great blowhard of the Senate, has even gone so far as to propose judicial approval elections be amended into the Constitution, rewriting Article III itself.
It is worth, at this moment in history, to take a look at the idea of meritocracy, to acknowledge that there is an element of meritocracy in the American government, and to celebrate the fact that we do.
Scalia’s dissent in Obergefell is off the chain, but he’s right about one basic thing. Nine people, who have been elected by nobody, and who are not necessarily representative of the US population as a whole, may simply decide that a thing is a fundamental right, and may protect that right against anything other than a constitutional amendment. The most powerful people in our government are not the President or the Congress; they are the Supremes. Mostly, the Supremes try not to flex their muscle, but every once in a while they do.
And when they do, the world moves.
Abortion is legal, and part of the freedom to choose what to do with one’s own body. Black children may go to school alongside white ones. We are free to marry one another, regardless of race . For over fifty years, the Court has been a major vector for social change.
This is, by no means, a new thing.
The more we reflect upon all that occurs in the United States the more shall we be persuaded that the lawyers as a body form the most powerful, if not the only, counterpoise to the democratic element. In that country we perceive how eminently the legal profession is qualified by its powers, and even by its defects, to neutralize the vices which are inherent in popular government. When the American people is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience. – Alexis de Tocqueville, On Democracy
The judicial branch has long stood as the sole remedy against what De Tocqueville called “Tyranny of the Majority.”
Why is the judicial branch so much better at enacting social change? Well, they’re not elected, and absent an impeachment proceeding they have the bench for life. Once a Supreme puts on the robe, getting it off him is going to be damn near impossible. So they give two shits about what the pundits are saying. The 24-hour news cycle of today is policed by our politicians with a fine-toothed comb, assuaged and manipulated by press secretaries and talking heads to attempt to give us a portrayal of what we should be thinking at any point in time.
SCOTUS gives 0 shits about that news cycle. None of the SCOTUS justices are up for election, ever again. They do not care about public opinion. They are placed in this position by the Constitution for this specific purpose.
There is a lot of talk out there that SCOTUS should not occupy this hallowed position. That life tenure for justices is bad. That the justices of the Supreme Court should, like every other wielder of power in this country, be subject to the will of the people of this great country.
The people of this country are, by and large, kinda dumb. Collectively, I mean. We can’t decide, as a country, really basic things like whether or not every scientist on earth is right. We hold “debates” on the concept of evolution, as though it were even debatable at this point. While we’ve got a government of the people, by the people, and for the people, we’ve also got checks and balances for everything.
Even the people.
SCOTUS operates to protect our liberties from ourselves. To ensure that we are a free and equal people, even when the majority of us want to impinge on the freedom of the minority of us. SCOTUS owes its duties to the Constitution alone, and owes absolutely fuck-all to the rest of us. And if that were to ever change, then SCOTUS could not function for that.
You may not like everything they do. When they protect the freedom of massive corporations to donate money to political causes, the left is not happy. When they protect the freedom of private companies to be douchebags , the left is not happy.
But for the most part, SCOTUS is the one branch of government that can act as a watchdog over the political branches, holding its power like the sword of Damocles over our elected officials, protecting the minority from tyranny of the majority.
And for that, it needs to be a meritocracy, not a democracy.’
In his Obergefell dissent, Justice Scalia notes that the Court is not representative of America. That they are more educated, and tend to come from specific geographic areas. The geographic areas are a funciton of the Ivy League system, which has its own flaws. But the education? Thank whatever God or Goddess you believe in for that one. Because that ensures we have at least a minimal bar (no pun intended) to service.
Our country is protected from mob stupidity by a group of nine educated individuals. Agree with them or not, they are all intelligent, well-studied people. Support them or not in any given decision, be happy that our founders put them there. Because a little meritocracy in the middle of a democracy is, in fact, a good thing.