“The Supreme Court is meant to be a legal institution, not a political one,” Sen. Charles Grassley, R-Iowa, said Monday during the bloviation phase of Sonia Sotomayor’s confirmation hearings — which reminded viewers that the worst part of being nominated to the Supreme Court is not the wide-ranging public and congressional scrutiny, but the having to sit through several hours of opening statements from every member of the Senate Judiciary Committee. As the Twitter wag known as pourmecoffee tweeted Monday: “Sotomayor off to bad start: ‘Mr. Chairman, senators I thought you would never shut your honorable pieholes.’ ”
Grassley is only partly right. Maybe the Supreme Court was never meant to be a political institution, but it is one. And it has been one ever since George Washington, who as the nation’s first president is the only chief executive to get to pick every member of the court, loaded it up with justices friendly to the Federalist view of the Constitution and the federal government. Washington’s appointments (there were six members of the Supreme Court during his presidency and he got to name 11 justices over the course of his two terms) contributed to the rise of partisan divisions that his successor, John Adams, deepened. As historian James MacGregor Burns writes in his new book, “Packing the Court,” Adams saw the Supreme Court “as a vehicle to crush opposition.” His leading opponents, Thomas Jefferson and James Madison, when they became president, likewise looked for justices supportive of their more limited view of the Constitution. So when someone like Sen. Tom Coburn, R-Okla., and a member of the Judiciary Committee, tells Sotomayor that justices should “have a judicial philosophy that reflects what our Founders intended,” which Founder or group of Founders does he have in mind?
It’s useful to remember that the Constitution represents the United States 2.0. Our first attempt at self-government, under the anemic Articles of Confederation, failed and that failure prompted the Founders to gather in Philadelphia in 1787 to craft a more centralized, more efficient federal government, though many Founders still had a strong affinity for the principles of confederation. At the Constitutional Convention, the Founders became the Framers, and what they framed was not immaculately conceived. The Constitution is often written in the squishy, vague language of compromise, which was necessary to its creation and ratification.
The Framers didn’t emerge all of one mind from the Constitutional Convention. There was a great deal of opposition to the Constitution, but in the end the arguments for it, and the addition of the Bill of Rights, led to its ratification. We rightfully revere the founding generation but its members weren’t infallible (see the Sedition Act of 1798 for one glaring example). They emphasized those parts of the Constitution that benefitted whatever argument they were making at the moment and ignored those parts that didn’t. They were against judicial activism and federal power, except when they weren’t. Who knows what any individual Framer would have thought about Sotomayor’s views on judicial supremacy or restraint, but they would have been familiar with the unsettled debate about them.