The national anxiety over Justice Anthony Kennedy’s retirement from the Supreme Court of the United States seems disproportionate to size of the footnote he will occupy in history.
Why does it matter that one federal judge will retire?
An Elite Judicial Body
Robert Jackson was Solicitor General of the United States, Chief Prosecutor at the Nuremburg trials, and Associate Justice of the Supreme Court. For his education, Jackson spent about a year at Albany Law School, reading the law, and passing the bar examination.
His story is an inconvenient truth in the era of big student loan debt. As debt soars, income stagnates, housing skyrockets, and 30-year olds bunk with roommates (or parents), a generation now awakens to a looming higher education crisis. Many are losing faith, looking to alternatives, or simply opting out.
Then again, when the Supreme Court issues its opinions each June, and 5 billion social media users morph into Robert Jackson, I am reminded that law is indeed a trained profession.
I know the government schools told us we are each entitled to our opinion. But there is a simple reason the Supreme Court does not poll the American public before stating its opinions. That is because it is, by definition, elite. It is nine lawyers rendering legal judgments about legal arguments, raised to them by other lawyers (all of whom studied law, and passed a bar examination).
The Court is also not merely nine typical practitioners of an elite profession. To be on the Court you need to be exceptional.
A Robert Jackson, for example.
The Egalitarian Myth
Yet, it happens every year. Social media erupts with opinion every June—opinions for, or against the Court’s decisions. When Obergefell v. Hodges recognized a constitutional right to same-sex marriage in 2015, the White House lit up with rainbow colors. Major corporations responded by altering their logos to include rainbow colors.
So, is the legitimacy of a Supreme Court decision now measured against its popularity? Must we wait for the Court to catch up to popular opinion, or must popular opinion catch up to the Court?
In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Division, Justice Kennedy wrote for the majority: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”
It may be that “society” has come to these conclusions. But is it not bizarre that nine elite lawyers, sitting on the most elite court in the world, seem to speak on behalf of society?
Is that how self-government works?
Because no matter how egalitarian the Court’s decision is, anyone who thinks individual rights come from nine elite lawyers is about the furthest thing from being egalitarian. That person surely recognizes that popular approval is irrelevant to some legal questions.
So which questions? Is there any limit to what the Supreme Court gets to decide?
If only, there was some written framework. Like a sacred scroll or some tealeaves we could read.
Plain English
Surely, we do not believe that non-lawyers are incapable of understanding their own civil rights. To the contrary, that is exactly the point of a Constitution, written in plain English.
The question is not whether the Supreme Court ought to conform its decisions to popular will; it is whether the Court has stepped outside its authority altogether.
We cannot expect every person to become trained lawyers, or to read every Supreme Court opinion before opening a bakery, falling in love, or getting pregnant. Yet in 2018, the Court spilled gallons of inks telling more than a quarter-billion people about the existential meaning of cake.
Cake.
Hellbound and Down 