Elitism besets U.S. Supreme Court bench

When Sonia Sotomayor testified before the Senate Judiciary Committee during her confirmation hearings in 2009 she had this to say about the idea of allowing cameras into the Supreme Court: “I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.” But when asked this month about cameras inside the Court, Justice Sotomayor morphed into a condescending elitist when she mused, “I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing. Very few of them understand what the process is, which is to play devil’s advocate.” Of course I will not assert that most Americans are constitutional scholars, but I also won’t go as far as Sotomayor and impose a quasi-intellectual poll tax on the citizenry, as the New York Times aptly labeled her comments.

The Court is a part of our civil society and as such we, the people, deserve to hear and see what is occurring inside its august walls. There is no persuasive argument against filming the Court’s proceedings. Opponents of the idea are quick to suggest that cameras would turn the court into a partisan spectacle with Justices behaving like members of our properly despised Congress. Justice Elena Kagan, who also supported the presence of cameras during her confirmation hearings in 2010, recently reversed herself and said the possibility of Justices playing to the cameras gave her pause. Apparently Kagan, one of those brilliant Harvard minds, was unaware of how some of her colleagues—Antonin Scalia—already put on poorly disguised comedy acts for the audio recorders. In fact, the Court is an extension of our hyper-partisan environment, with Samuel Alito, Clarence Thomas and Scalia acting more like Fox News contributors than respected oracles of the law. More tellingly, however, is how Sotomayor’s words indicate a larger problem with the country’s highest court: most of its members are completely detached from modern society and the problems we face.

All nine current Supreme Court Justices attended either Yale or Harvard Law School. When a vacancy occurred in 2010, Barack Obama, himself a graduate of Harvard, had a rich pool of non-Ivy League candidates to choose from; but he chose Kagan who also served as the dean of Harvard Law from 2003-2009. I fail to believe that Harvard and Yale, with all their supposed greatness, are the only schools capable of producing qualified Supreme Court Justices. Furthermore, when we confine our country’s most esteemed judiciary positions to two schools, we set up a scheme of elites looking out for other elites. And, with the exception of two, most of the Justices are from the two coasts, leading to a lack of diversity in schooling and geography; this may in part explain why the court during the last thirty years has become a guardian of the status quo.

The Court’s conservative majority is attached to the doctrine of originalism, which is a mode of interpretation that seeks to decipher what the framers intended when they wrote the Constitution. The notion that we should decide how laws are applicable to modern society using the mindset of white men from the 18th century is patently absurd and yet it does not prevent such lunacy from being the majority view on today’s Court. Then there are the liberal Justices who are far from the radical left wing activists we are told they are. Kagan—who joined the conservative bloc when she voted against the mandated state Medicaid expansion of the Affordable Care Act—is a perfect example of this. Because of her, in part, right wing governors are now able to reject the provision of healthcare reform that would have expanded coverage to millions of low-income people. These liberals are actually adherents of the more moderate doctrinalism. The doctrine approach does favor change; it is a gradual change that focuses on problems in a piecemeal fashion, instead of a systemic tackling of society’s injustices.

Last week legal scholar and philosopher Ronald Dworkin died. Dworkin was known in legal circles for his advocacy of applying moral judgments to constitutional interpretation. Indeed, the Dworkin method could also be described as developmentalism, which is an interpretative scheme that seeks to interrogate the historiography of law and how it impacts an evolving and maturing society. This particular form of constitutional analysis jettisons any idea that the Constitution is substantively inert. Crucially, for those of us concerned with progress, developmentalism weaves modern, cultural and political issues into its form of interpretation.

In order for constitutional self-governance to work best we must recognize that any interpretative strategy must be based in the modern world where contemporary and significant problems exist. We should ask ourselves: Is the purpose of the Constitution to promote a better and more moral society or is its goal to maintain a social order obsessed with archaic principles, which are incompatible with sociocultural evolution? These vital questions will only be tackled when the Supreme Court’s bench is populated by people from outside the elitist institutions that have a played a vital role in protecting the status quo.

 

—Juan Thompson ‘13 is a Political Science major.

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