Bench Memos

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How Not to Think About the Supreme Court


That could have been the title of the New York Times op-ed symposium today, in which “10 legal experts make their case for the kind of justice the court needs.”  Evidently it needs a young gay evangelical Asian immigrant atheist military veteran with state or local political experience, who can build a consensus based on empathy.  (The only difficulty might be finding an atheist evangelical, but in this vast country of ours, there must be one.) 

With the possible exception of Stuart Taylor, the editors of the Times probably knew beforehand what every contributor would say.  Taylor argues for someone with state or local political experience.  The rest are all predictable.  The Asian wants an Asian.  The gay writer wants a gay justice.  The evangelical law professor wants an evangelical.  The anti-Christian law professor (and author of what may be the worst book ever written on the law of church and state) wants an atheist.  The advocate of immigrants’ rights wants an immigrant.  The veteran wants a veteran.  The guy who turns 40 this year wants a post-baby-boomer.  The fellow who’s written a book about the failure of French political society to have empathy for the “other” wants a justice full of empathy.  The one who’s written an admiring book about the last century’s most successful politician wants a politician.  If they had asked Pippi Longstocking to contribute, the editors could have had a couple of hundred words on the need for little girls with pigtails to serve on the Supreme Court.

None of the contributors actually has a good reason for what he or she wants.  And none of them gives any reason to believe that a justice with the desired background or qualification will actually be any good at what a Supreme Court justice is supposed to do: decide cases justly according to the law and the Constitution.

Here’s what I want: a justice who agrees with me about the law and the Constitution.  (This is actually what everyone wants.  Why can’t we just say that?)  I don’t care about anything else in his or her background.  I don’t care about how justices made their way toward what they now think about the law and the Constitution.  I care only about what they now think, and what they may come to think in the future.

“Diversity” on the Supreme Court may be a fine thing on annual photo day.  It makes a pretty picture.  But diversity of views on the Constitution?  If it means some justices who get the Constitution badly wrong all the time?  No, thanks.


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