Editor’s Note: Laura Coates is a CNN legal analyst. She is a former assistant US attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice. She is the host of the daily “Laura Coates Show” on SiriusXM. Follow her @thelauracoates. The views expressed in this commentary are her own.
While liberals lament and conservatives rejoice over Donald Trump’s presidential privilege to nominate two Supreme Court justices – Neil Gorsuch and Brett Kavanaugh – in his first two years, Americans should bemoan not only the inevitability of the change in the court’s ideological composition, but also that it has become so easy to determine how the justices will decide any given case.
That the Supreme Court’s hands have become so patently obvious is a failure of our judicial system. The true tragedy of Justice Anthony Kennedy’s retirement is not the loss of the court’s most prolific swing vote – it is that every remaining justice is not a potential swing vote.
Each Supreme Court justice has the inherent obligation to objectively consider each case. Yet, each opinion rendered is accompanied (at least in the media) by an ideological breakdown. For years now, four liberal justices voted one way, four conservative justices another and one rogue justice managed to offend his or her tribe. Pearls were clutched, black robes unsnapped in delight or disgust.
This is not the way American jurisprudence is supposed to work. A Supreme Court justice should be entirely unpredictable, not a hardened ideologue.
Certainly, a justice’s past rulings will reveal his or her leanings. After all, judicial schizophrenia is hardly a desirable attribute. But to allow one’s past rulings to be so predictive of future ruling that a party coming before the court can win by simply tailoring their argument to a particular justice is to transform the judiciary into a mockery. There would be no need for written briefs, oral arguments, contemplation or written opinions if we already knew how each justice will decide. The parties could simply take a political roll call before providing the justices with a signature block and a pen.
The same should be true for a justice’s personal, political or religious beliefs. Admittedly, each of those beliefs will inform a person’s perspective, but none should instruct it. The spirit and legislative intent of the law, the US Constitution and the facts of a case should supplant one’s personal moral compass, not be ignored as a hindrance to a justice’s desire to codify his or her personal whims. Overturning precedent (whether favorable or not) should be regarded as removing Excalibur’s sword, not as an opportunity to grind a personal ax.
The donning of the black robe is a symbolic act that prioritizes the court over the individual. Yet, when it comes to the Supreme Court, it seems the emperors wear no clothes. Justices’ predictable tribalism has left them – and our nation’s belief in judicial objectivity – completely exposed. For the judicial process not to be an exercise in futility, each justice must realistically be regarded as an unpredictable swing vote, not a disengaged rubber stamp of the party of his or her nominating president.
If a justice allows himself or herself to be reduced to a facilitator of a campaign promise, then let that justice be adorned with marionette strings in lieu of the robe. A campaign lackey who disregards separation of powers and the virtues of judicial autonomy is not deserving of the title “Your Honor.”
At his confirmation hearing, Supreme Court nominee Brett Kavanaugh will attempt to convince the Senate that he is neither predictable nor feigning unpredictability. To quote his own words, he will try to convince the Senate that he “reveres the Constitution, … will keep an open mind in every case,” and that his background as White House counsel and staff secretary in the George W. Bush administration is not a precursor to the dissolution of the separation of powers.
With the Republican majority in the Senate and a filibuster not in the cards, he will need only convince a select group of moderates that he will be moderately objective, moderately receptive to liberal views and moderately loyal to precedent. That may satisfy the Senate, but it is the American people who will need to be convinced that it is a good thing for Lady Justice to be only moderately blind.