WASHINGTON, October 21, 2016 — Hillary Clinton said in the candidates’ debate on Wednesday,
“I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy.”
She went on, “The Supreme Court should represent all of us.”
Supreme Court justices are required to take two oaths before taking up their appointments. The first is an oath sworn by all federal officials:
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The second is the judicial oath set by the Judiciary Act of 1789, which according to the Act must be sworn to by “the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices.” That oath, revised under the Judicial Improvements Act of 1990, reads,
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
The two oaths may be combined when Supreme Court appointees are sworn in.
Clinton’s assertion was wrong on at least two counts: The Supreme Court is not and was never intended to be a representative body; and as is implied by the judicial oath, sometimes the court should be on the side of corporations and the wealthy.
The function of the court is not to stand up for the poor, the disadvantaged, minorities, women or the weak. Its function is to interpret the law in proper cases, and to rule on the constitutionality of statutes and executive actions.
The Supreme Court’s function is to protect the integrity of the law.
Clinton, a Yale-educated lawyer, seems under the impression that the Court is supposed to be a representative body. In that she follows the example of President Obama and even some Supreme Court justices.
Before her nomination to the Court, Justice Sonia Sotomayor told an audience at the UC-Berkely law school,
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
She partially walked back that comment during her confirmation hearings, saying that she chose her words badly, with an eye to rhetorical flourish rather than to legal accuracy. But the sentiment is widespread: Women and minorities bring to the bench perspectives that lead to different, often better, judgments than would be produced by white men.
Hence the tendency to see the courts and the Supreme Court in representative terms: The Court should display a representative racial, ethnic and gender diversity that reflects the country as a whole.
Taken to a logical but not extreme conclusion, this view supports Donald Trump’s objection to having the case against now-defunct Trump University tried before a Hispanic judge. That judge, Gonzalo Curiel, would probably render a different judgment than a non-Hispanic judge. In a word, he would be biased.
Bias is precisely what is expected from members of a representative body. They represent the desires and interests of their communities. They are systematically biased.
Clinton’s conception of the Court is inimical to a fair, impartial interpretation of the law. It gives a direction and ideological motivation to the Court’s rulings, pushing judges to rule for constituencies and not for the law.
That isn’t a particularly liberal or Democratic view of the Court. Republicans likewise see the judiciary in terms of achieving political and policy ends. The quadrennial battle over the Court isn’t a contest between those who want it to serve policy ends and those who want to maintain the Court’s integrity; it’s a battle over policy ends.
The view Clinton expressed during the debate is now so common that many people take it for granted. They expect the Court to have “black seats,” “Hispanic seats,” “women’s seats,” and inevitably LGBT, Asian and other seats. They expect these justices to stand up for and represent their gender and race, to advocate rather than uphold the Constitution and the law.
Not incidentally, proponents of this view expect to see a diversity of faces, not a diversity of thought or of ideological perspective.
This is dangerous. With its ability to shape both law and the scope for executive action, the Supreme Court is potentially the most powerful branch of government. It is held in check by the power of the president and Congress to shape its makeup, and even to expand or contract its size—the Constitution lets Congress choose the size of the Court—but it is bound primarily by its own sense of restraint.
The Court has chosen generally to craft its opinions on constitutionality in the narrowest possible terms. It has chosen to defer to the Executive Branch on matters of foreign policy and military action. It has chosen to consider constitutional issues in the cases it hears only if the case can’t be otherwise resolved, and it has generally chosen to avoid political disputes—that is, policy matters that can be resolved by legislative and executive authorities.
It has chosen. Asking the Court to serve as a legislature, though, invites it to choose otherwise. This repurposing of the Court may produce short-run gains for some political interests, but in the long run it is a loaded weapon left in a room full of teenagers. Laugh about it, shout about it when you’ve got to choose; every way you look at this you lose.