Justice without Justices

By McGinnis, John O. | Constitutional Commentary, Winter 1999 | Go to article overview

Justice without Justices


McGinnis, John O., Constitutional Commentary


My proposal for constitutional erasure is simply to eliminate the position of Supreme Court Justice. This notion is not as radical as it initially sounds. It would not stamp out judicial review, the supremacy of federal law, or even the Supreme Court itself. If the separate office of Supreme Court Justice had not been established, federal judges sitting on the inferior courts of the United States could have been randomly assigned to the Supreme Court for short periods,, such as six months or a year. In the early republic, Supreme Court Justices themselves sat on designated lower courts when they "rode circuit." Call my counterfactual universe "Supreme Court riding."

For now, assume that this universe would require an alteration of the Constitution, rather than a mere revision of jurisdictional statutes, though I will return briefly to that interesting issue below. Whatever means would be necessary to carry it out, my proposal would efface a key provision of our received constitutional order. Why do it? I believe that judges should treat all written law, including the Constitution, as a formal system of rules to be objectively interpreted according to their original meaning. Supreme Court Justices have too often proved incapable of engaging in this enterprise. The most disastrous decisions in the constitutional history of the United States--such as Dred Scott,(1) Plessy,(2) and Roe v. Wade(3)--have this in common: the Justices employed a style of decision making that had more in common with formulating a political platform or policy position paper than with interpreting a legal text understood as a system of rules.

The nature of the office itself has made such lapses almost inevitable. Vested for life with the awesome power to make final decisions with wide-ranging consequences for the nation, Supreme Court Justices generally cannot help but come to see themselves as statesmen rather than as humble arbitrators of legal disputes. Indeed, many of the mortals who have inhabited the marble temple across from the Capitol have come to believe that they have an even higher calling: to serve as priests of our collective conscience and to preserve the nation's "very ability to see itself though its constitutional ideals."(4)

In contrast, judges who "rode" to the Supreme Court only for a short time would have been more likely to treat constitutional issues and other momentous decisions more like the other quotidian matters that they were accustomed to resolving in their courts. Supreme Court riding would have lessened Justices' vested interest in the development of constitutional law according to some personal vision because they would have returned to their home courts to dine on a diet of mundane commercial and criminal matters, as well as constitutional issues for which they were not the final arbiters. The prospect of soon returning to a professional life occupied with discovery disputes and trials of accused drug dealers functions like the whisper of the slave in the back of the triumphal chariot, who reminded the Roman general of his mortal fallibility. Today's newspapers, like the throngs of cheering Romans, perform the opposite role by encouraging judges to overstep the law. The short term of Supreme Court riders would make it easier to resist the urgings of the Washington Post and New York Times to "grow in office." Thus, the structure of the office of Supreme Court riders would have been more likely to instill the habits of constrained judgment contemplated by Federalist 78.(5)

Supreme Court riding would also have had other good effects. It would have made the Court a less imperial (and imperious) presence in national life. Long ago, our own American Brutus correctly predicted that the Supreme Court would consolidate power in the central government because the Justices would have an interest in using interpretation to expand their own powers and those of the government to which they belonged. …

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