The Nine [188]
In public at least, Roberts himself purports to have a different view of the Court than his conservative sponsors. “Judges are like umpires,” he said at his confirmation hearing. “Umpires don’t make the rules; they apply them.” Elsewhere, Roberts has often said, “Judges are not politicians.” None of this is true. Supreme Court justices are nothing at all like baseball umpires. It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to performing the rote, almost mindless task of calling balls and strikes. When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor, has written, “It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.” Constitutional cases, Posner wrote, “can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”
For this reason, Breyer’s wan longing for stare decisis will stir few hearts. Breyer and his liberal colleagues (joined on this occasion by Kennedy) did not care about stare decisis when they voted in Lawrence v. Texas to overturn the Court’s barely seventeen-year-old decision in Bowers v. Hardwick. Rather, they believed that the time had come to recognize that it was an abomination to allow criminal punishment of consensual homosexual sex and voted accordingly. On that occasion, as so often, ideology trumped precedent. It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices’ freedom to interpret is vast but not absolute.
Still, when it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy—ideology—and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the Court and thus the nation.
So one factor—and one factor only—will determine the future of the Supreme Court: the outcomes of presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over; the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All of the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the presidents who appointed them. That will almost certainly be true, too, of the replacements for the three justices most likely to depart in the near future—Stevens, Souter, and Ginsburg.