Don't Fear the Justice?: Power, Fear, and Lifetime Appointments

Curator's Note

From the Affordable Care Act decision through the 30th anniversary of Roe v. Wade to the recent hearings on the Voting Rights Act, the Supreme Court has become a centerpiece of political commentary this year, with an increasingly vocal discourse of ambivalence toward it.  Rachel Maddow called Justice Scalia a troll on The Daily Show and devoted a great deal of her show's coverage in that week to the Voting Rights Act hearings.  In those segments, as well as The Daily Show's coverage of the same, the idea that the Court could take away (a provision of) a right that even the senate affirmed unanimously. Underlying these liberal expressions of incredulity is an element of fear. With hardline conservatism seemingly more vocal and obstructionist than ever, these pundits implicitly question idea of lifetime terms for Supreme Court justices--extrapolating from the discourse, appointing a "troll" to one of the highest positions of power in our government, with only eight other potential "moderators" to balance.  

Although Scalia's recent incendiary remarks certainly heightened this discourse, in fictional television texts, the fear of justices embodying absolute power checked only by personal ethics or death's icy fingers has been dramatized and amplified in the recent scripted drama, Scandal.  In the clip for this post, from episode "Nobody Likes Babies," Supreme Court Justice Verna Thornton reveals her role in an election-rigging conspiracy to the president she chose but who was not legally elected. Using soap opera narrative and aesthetic elements, including the reiteration of extended plot arcs and close-ups to heighten the emotional heft of the scene, the mode of exaggeration provides room for the representation of the potential fear lacing through contemporary discourses about the Supreme Court.  If Maddow and Jon Stewart only imply unease with the state of the Court and the power of its lifetime appointments, Scandal places a worst-case scenario front and center.  Its melodramatic elements make a conspiratorial and murderous justice verisimilitudinous if not realistic. Verna is an extrapolation of the fears some parts of society may be feeling regarding the mostly mysterious and seemingly unchecked power of the Court. Scandal may be deeply pessimistic in its representations of government, but that pessimism is also part of the culture. Verna may represent an attempt to represent a fear of the Supreme Court and work through it in the cultural forum of popular television.


The truth is much closer to the Maddow-Stewart axis than to Scandal. SCOTUS power is not unchecked but is kept in balance with other branches of government and with society in general. The problem is that the period to reach equilibrium is often lengthy. Congress can alter the effect of SCOTUS pronouncements by changing statutes to address defects identified by the Court. The Executive Branch does the same with administrative regulations. Both take time. Even more importantly, the Court alters interpretation of the Constitution and statutes to reflect social and political developments. Again, the reformation process takes time, but in the case of the judiciary the period can be measured in multiple decades. If adjustment did not take place then we would still be burdened by decisions holding that government could not mandate a maximum work week (Lochner v. NY), or that state universities can require loyalty oaths (Adler v. Board of Education), or that the State of Georgia can regulate secual activity between consenting adults in private (Bowers v. Hardwick), or that states can enforce anti-miscegenation statutes (Pace v. Alabama), or that people of color cannot be citizens (Dred Scott v. Sandford), or that "separate but equal" was a good idea for more than just eyebrows (Plessy v. Ferguson). Ultimately the Constitution can be amended in response to a Supreme Court decision. SCOTUS held in Chisholm v. Georgia that a citizen cannot sue a state. The 11th Amendment - passed and ratified in record time - reversed the decision. SCOTUS also upheld Oregon's refusal to allow citizens to vote upon reaching age 18, contrary to a federal statute, in Oregon v. Mitchell. It took the 26th Amendment (adopted a year following the Oregon decision). Chisholm and Oregon notwithstanding, Constitutional standards change ever so slowly. The Maddow-Stewart frustration is not really based on SCOTUS being out of touch with reality as it is with the abandonment (apparently) of a basic principle of jurisprudence that a court should decide a case on the record before them. The decision in citizens United allowing corporations to participate in federal elections is based in part upon an assertion that the Internet allows for the policing of corporate activities since the source of funding can be discovered there - a fact not in the record and, as anyone half way awake during the last election knows, not even true. Questions by some of the justices during oral argument on the Voting Rights Act case revealed a willingness to disregard a carefully prepared Congressional record detailing continued abuses in states covered by preclearance provisions of the act. Thos eof use who actively litigate these cases cringed. The Court is under greater scrutiny than anytime in its history. It is reacting badly to it. Citizens can access the complete records, briefs, orders, minutes, and notes of any case online. Numerous blogs offer diverse commentary before and after every significant argument, order, or decision. Books are published both about the court and by its members. It is opening up. Several states, always the innovators, have started experimenting with webcasting arguments. (Thanks for all the fan mail, by the way. I was surprised that people watched Fast Signs v. American Home Services last year....) The federal courts have always moved slowly. It takes discourse like the one Charlotte prompted to move them along. And, yes, I am well aware that the Georgia Board of Regents still requires loyalty oaths. Apparently Keyishian v. Board of Regents of the University of the State of New York has not made its way to Atlanta.

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