The death of US Supreme Court Justice Ruth Bader Ginsburg is a significant event on a number of levels. It is, of course, a personal sadness for her family and friends; a loss, if not wholly unexpected, for those who admired her great forensic legal skills and the pioneering role she played as the second woman to be appointed to the US Supreme Court; and for some of the more unhinged partisans in American political life, it is apparently cataclysmic.
Whilst our friends at the BBC may not have quite reached that level of heightened reaction, it is plain from the way that they have covered the event, and perhaps more importantly looked at what happens next, that they are deeply worried that a more ‘conservative’ judge will be appointed by President Trump, whether now or after the election. One wonders if they have considered what ‘conservative’ might actually mean in the context of the Supreme Court.
The people of a country are made up of a blend of individual opinions, varied and opposed. They may be more or less authoritarian, more or less socially liberal, and have a variety of cultural assumptions which may conflict. The people – the demos – supporting and bound by the US Constitution, are particularly diverse in the USA, as the country is largely one of immigrants from a vast array of societies and backgrounds. Inevitably, their interests, in both senses of the word, will be divergent, and it was to this problem that the Founding Fathers put their minds.
Plainly, those men were not modern ‘progressives’: they easily overlooked the indigenous people of the continent which expanded vastly and mysteriously from the eastern seaboard which they inhabited within their 13 colonies. They were eurocentric men of the Enlightenment, with many of the virtues and some of the blind spots which that implies. Yesterday our eye went to the absence of reference to women’s rights; today it rests on a blind spot toward its slaves, yet what they produced has been a remarkably longstanding and flexible instrument with the capacity to grow with the country and into modernity.
The foundational documents are lean. They are the product of abstract conceptualisation, concentrating not so much on specific laws but on pure concepts of law. ‘What would a well-balanced free society look like?’ seems to have been the starting sub-text, and so, mindful of the English model which they were leaving behind and the risks of too much French idealism, they began pragmatically dividing powers, privileges, rights and duties between the States and the Federal Centre, and across the various parts of the Executive. Preserving those balances and structures remains an important priority. Central to that priority is the character and mindset of the Justices of the Supreme Court.
One of the recurring challenges within that body is the extent to which it should be active in delivering political projects of right or left. American jurisprudence has long understood and grappled with the problem of activist judges. No judge can be wholly logical; they bring a degree of personal perspective to the role, but the best caution themselves against excessive innovative partisanship, and stay close to the texts. These we call ‘conservative’ simply because they see their role as being that of independent arbiters, not innovators.
Many – on both sides – want judges who share their views, aspirations and prejudices, but when we speak of conservative judges it is a mistake to regard that as a matter of personal proclivity: they look to tell what the law is, not what it ought to be. The latter is the task of the legislator. This is at the heart of the concept of division of power.
A conservative judge, in the proper legal sense, is not pro-gun anti-abortion Republican: a conservative judge should ask, as best they are able, ‘What does the law or Constitution actually say?’ In theory, one can be politically left-wing and yet conservative in one’s approach to the texts. It is a paradox that Ruth Bader Ginsburg took just such an approach four years ago when President Obama, approaching an election at the end of his term, sought to nominate Merrick Garland to replace Mr Justice Antonin Scalia on the Supreme Court. He failed simply because he did not have the votes in the Senate to achieve his purpose.
That is what the draftsmen of the Constitution intended. The President is not a king; nor is the country a tyranny of the majority. It is a finely balanced union in which President, Senate, Congress, Electoral College and individual States each have defined roles and their parts to play.
Preserving that balance and enforcing the plain terms of the rules in a fair impartial manner is the primary role and responsibility of the Supreme Court. Many in the progressive movement wish it were otherwise. They are so convinced of their rectitude that they believe that the ends justify the means, and this is a key part of the struggle we now see unfolding. If they cannot secure change through winning the Presidency or Houses, they will seek it through the Courts. Five activists justices is all they need, each immovable, unaccountable, and unrepresentative.
The Presidential Election campaign will be bitter, divisive and defining. We know that ballot papers are being indiscriminately posted out, that the voters’ rolls have been corrupted, voters’ identities and eligibility are imperfectly checked. It is a mess in the making. The Democrats have already signalled that they will not accept the result graciously if they should lose. Already the rules in certain states have been changed. The littering of ballot papers has been augmented by rule changes so that, for example, in some states the arrival of un-franked postal votes arriving three days after the election date will be counted.
Suspicion about the outcomes is inevitable. The country needs the certainty of a clear decision from the Supreme Court and for that it needs its nine members. There is nothing outrageous in the President choosing a nominee: one has to go back to 1880 to find the acceptance of a minority nominee. Both Barack Obama and Ruth Bader Ginsburg asserted the propriety of a president nominating a Supreme Court judge in their final year. It has happened on 19 prior occasions. None of this has featured in the coverage which I have heard from the BBC, which seems to believe that the way President Trump is exercising the constitutional power entrusted to his Office by the Founding Fathers is either innovatively underhand or immoral. It is nothing of the sort.
Had Ruth Bader Ginsburg wished to maximise the prospects of her successor being to the taste of the party that idolised her, she could, of course, have retired during the eight years of Barack Obama’s presidency. To suggest, as some have, that her ‘legacy’ should be carried on by President Trump neglecting his right of nomination is a nonsense. The Founding Fathers were wiser than this current generation of political thinkers.
As the Unites States enters potentially choppy political waters, judges operating the Constitution without fear, favour, or the self-conceit of innovation will see them through. All that is needed is a nominee who respects her/his oath of office applying the texts in a straightforward fashion whenever they can, unless it would yield an obvious absurdity. This is known as the ‘golden rule’ of statutory interpretation, and used to be quite uncontroversial.
This judicial approach is called ‘conservative’. It is what America needs right now, and the President is not to be criticised for placing the country’s future in safe hands.