Even a cursory review of the Court’s history vindicates Madison’s anxiety—for time and again it has not so much protected public liberty from aggressive politicians, but rather imposed its own, controversial notions of morality upon the people. In Dred Scott, the Taney Court invalidated the Missouri Compromise, hastening the Civil War. During the Gilded Age, the Court was devoted to the principle of laissez-faire and struck down a raft of state regulations of businesses. The modern Court has been eager to take sides in the ongoing culture war. Liberating the Court to do as it wishes provides a safeguard for our God-given rights, but it also endows a largely undemocratic branch with power to strike down democratic measures in a capricious manner.
Little wonder that we the people fight so intensely over every nomination. The average justice’s tenure approaches 20 years, meaning that only once a generation the public gets to weigh in on who occupies each seat. If the Court were modest in its ambitions and respectful of the people’s capacity to govern themselves, these openings would probably not precipitate such epic political conflicts. But over the years the Court has been prone to arrogance and highhandedness, enjoining often contentious views of right and wrong. That is not what should happen in a republic.
The political battles over judicial nominations make for messy television, but they are a proper response to the Court’s tendency to undervalue our nation’s republican tradition. A vacancy is that rare opportunity for the people to remind the Court that its job is to protect our liberties without interfering unduly with our right to rule ourselves. We should hope that our representatives work their hardest to get this message across. Does this “politicize” the nomination process? Sure. But politics is essential to republican government, and the Court needs politicizing, if only once in a while, to remind it who is really in charge.