Chief Justice John Roberts’ characterization of the leaking of the draft decision on abortion as a “singular and egregious breach” of trust puts a fine point on the tenor of our times. In March, Senate hearings that confirmed Ketanji Brown Jackson to the nation’s highest court in anticipation of shaping such decisions underscored the fact that, whatever the intentions of the Founding Fathers, today’s Supreme Court can make no claims to standing outside the political fray. Legal scholar, historian and author John Vile points to televised (or streamed) hearings and the failure of Congress to act decisively on difficult issues as contributing to our current state of affairs but insists that partisan drama is not new in our judicial history. Vile recently spoke with GoverningEditor-at-Large Clay Jenkinson. The following interview has been edited for length and clarity.
Governing: The recent Ketanji Brown Jackson hearings were a reminder that Article III of the Constitution is pretty vague. It sets up a Supreme Court, along with whatever inferior courts Congress deems fit to establish, and it provides for life tenure based on good behavior. That’s about it.
John Vile: It’s something that has to be flushed out in practice, and that practice has changed over the last 50 years. We’ve never been in that ideal state where you nominated people simply because of their credentials, and everybody said, “Yes, this is the wisest person we can find. We accept them.”
But we seem now to have driven further away from that than we used to be. I expect a typical Democratic president to nominate someone who’s more liberal, and I expect a typical Republican to do the same on their side. The question then becomes, “Do they have the requisite experience? Are they competent? Do they have a judicial temperament?”
If the test was just, “Do they have the same ideology?,” what would happen right now if the Senate were dominated by Republicans? Would we go another two or three years before we would get a nominee? You can’t rule that out.
There’s inconsistency on both sides. Many Republicans are still smarting from the Bork thing, and Democrats are still smarting that Garland (did not receive a confirmation vote). If you look at the last two nominations, Amy Coney Barrett was a completely partisan vote. But this time, you had three fairly reasonable moderate Republicans who said, “This is not necessarily my ideology, but she’s someone who has the requisite character and experience.”
“My impression of Congress is they often adopt a vague law with the hope that the courts will bail them out. Then, depending on what the courts do, they rip them for it.”
— John Vile
Governing: The illusion that the Supreme Court somehow stands outside partisan politics seems over now. What’s the cost to the American people and to our judicial system?
John Vile: One interesting thing is the possibility of another court packing, though there’s not a sufficient majority for either party right now to push that through. But since FDR’s failed attempt in 1937, the consensus has pretty much been that this battle is over. But there’s another movement, which I don’t favor, for giving justices either a nine-year or an 18-year term, so that instead of fate determining when justices come in and when they leave, every president would essentially get two nominations. It would require constitutional amendment, which is difficult, and even if you managed that, you couldn’t apply it to existing members, so it would take 18 years or so to come into effect. It does seem a little less capricious. What did Trump do to deserve three nominations in a four-year period? Jimmy Carter never got one.
Governing: The idea has always been that social change should percolate through the legislative branch, and yet we could have a decision within a few weeks on Roe v. Wade that would affect 300 million people. How did we get there?
John Vile: One could claim that Roe v. Wade really was a legislative decision to begin with. We saw a little bit of this in the Jackson hearings over the unrelated issue of sentencing. They were saying to her, “You let these people off too quickly.” And she said, “Look, I acted under the laws that you adopted.” My impression of Congress is they often adopt a vague law with the hope that the courts will bail them out. Then, depending on what the courts do, they rip them for it. I feel sorry for the justices at times. I like the notion of a stable Constitution, and I like that amendment is more difficult than ordinary legislation. But when it becomes too difficult, there’s real incentive for judges to step in and do something. When Congress and the states don’t act, the courts intervene, and then get blamed for intervening. It’s a vicious cycle.
Governing: The court now essentially votes along the lines of the party that put them there. Isn’t the public going to begin seeing it as just another branch of our politics?
John Vile: That critique is not new. Jefferson referred to the judges as “sappers and miners” who worked underground to undermine the rule of the people. We are probably at a greater partisan divide now than at any time since prior to the Civil War, but we’ve had similar ups and downs in the past in terms of respect for the court. We’re facing other perils. I don’t know of another past president who still claims that he was elected, even after 60 court cases have said that he wasn’t, but that’s another fish to fry. It’s not really judicial.
Governing: But it is important, because the courts — state, federal and Supreme — all looked at that, and in every case they said, “No.” Due process is due process. They were not going to overturn the election just because they were Trump appointees.
John Vile: It would be pretty hard to get through law school and adjudication without having some respect for due process, institutional procedures and fair play. That’s part of the legal education. I’m reminded of the letter that Mr. Jefferson wrote to John Taylor saying, “A little patience, and we shall see the reign of witches pass over.” We go through times where the public seems to be more drunk than sober, but give it a little even keel and you can basically trust in the instincts of the American people. Hopefully, it will work itself out. One thing that works against it is that people now see these hearings on television and think that it has always been this way. And it hasn’t. It was the late ’30s or the ’40s before you even had congressional hearings, much less televised hearings. You don’t get quoted on the evening news for asking questions about a candidate’s circuit court experience. You get on the news for asking things like, “Can you define who a woman is? Do you believe in God?” And questions like that have little to do with whether somebody should be on the Supreme Court. The shame of it is that these hearings could actually be quite educative. But people just want to capture the show by asking silly questions.
Governing: In watching the Jackson hearings, it was difficult to accept that this was the conversation we chose to determine the fitness of someone who will probably serve for 30 or 40 years.
John Vile: One of the things about Jackson that amazed me is that wonderful smile that seemed to acknowledge that, no matter what happens here, once that vote is taken, I’m on the Supreme Court, and I’m the first African American woman to ever do that. But you do wonder if some justices aren’t walking around wounded from the experience of the hearings. We want them to be humbled in the sense that they understand that they’re only one of three branches of government and their primary duty is to the Constitution, but I don’t know that we want them emotionally scarred. It’d be hard not to want to get back at somebody.
Governing: How would you change the process?
John Vile: The Constitution doesn’t require the public hearing. It certainly doesn’t require that people make jackasses of themselves. That’s more a reflection of the general divide within the culture. Thank goodness we’re not using the filibuster right now for Supreme Court justices, or we’d go at least to the next election before we’d get anybody confirmed. I’m not sure that the problem is amenable to a constitutional solution unless you want to just give the initiative to the president, with some kind of veto if he or she were to go too far in terms of a nominee.
Governing: If there were repercussions for Sen. Tom Cotton, for example, when he says something not only fundamentally wrong but deeply offensive about Justice Jackson, then things might improve. But it seems more likely that he will be celebrated by the person on the street and ultimately re-elected.
John Vile: Sen. Cotton knows better. He knows that the American legal system requires representation. Jackson has been a prosecutor and a defense attorney. We’re getting a little bit of diversity back on the court. I believe the last justice to have actually had criminal defendants was Thurgood Marshall. You can’t tell people that you’re going to pay them a little bit to be a public defender, that they’re doing a real service and then later say, “What in the world were you representing them for?” The Constitution presumes that we’re legally innocent until proven guilty. And we forget that the person that everybody’s pointing their finger at may be us. It may be our house that they’re breaking into without the search warrant. It might be our speech they want to squash. Our founders knew that it was possible to be falsely accused, and they made provisions to protect against it.
Governing: The Founding Fathers were racist almost to a man, and they were all men. They believed that women should be domestic creatures. They didn’t think that free Blacks should have any civic rights. They regarded Indians as foreign nations. It becomes pretty hard to be an originalist, unless you consider the 13th, 14th and 15th Amendments and declare yourself an originalist with respect to how it’s been amended.
John Vile: Thurgood Marshall spoiled the Bicentennial Party by bringing up some of this. Everyone was celebrating, and he said, “Hold on, some of the people you’re celebrating don’t quite deserve full celebration.” But I would hope that people 200 years from now, looking back on what I did, would try to think that it came from good intentions, even when it didn’t come to the right conclusions. In looking back, you always have to ask, “In relation to what?” It’s the same with the American framers. They were not the only country that had slaves. They certainly weren’t the only country that denied women the right to vote. And yet they articulated principles that worked out through time into a much more progressive, much better system than we would’ve had without them. So I tend to cut the founders a little slack. They were accustomed to factions. Madison’s approach was a good one: Do your best through separation of powers and a large republic to moderate these factions as much as you can.
You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the new Governing podcast, “Listening to America.” Clay’s new book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing firstname.lastname@example.org or tweeting @ClayJenkinson.