What the Primary Job of the Supreme Court Justices Is Not About

Originally posted March 21, 2017.

1. Not upholding the will of the majority of the moment.
2. Not reflecting the popular opinions of the day.

Senator Ben Sasse (R., Neb.) at the Judiciary Committee’s confirmation hearings for Justice-designate Neil Gorsuch:

It’s a strange thing that judges wear robes. . . . Why do the robes—often unfashionable and unflattering—persist? The reasons were summed up better than I could put it by one sitting judge. He said:

“Donning a robe doesn’t make me any smarter. But the robe does mean something—and not just that I can hide coffee stains on my shirt. It serves as a reminder of what’s expected of us—what Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet. . . . Here, we’re told to buy our own plain black robes—and I can attest the standard choir outfit at the local uniform-supply store is a good deal. Ours is a judiciary of honest black polyester.”

The author of these insightful words was Judge Neil Gorsuch. . . .

The primary job of the Supreme Court justice is not to uphold the will of the majority of the moment. The primary job of the Supreme Court is not to reflect the popular opinions of the day. . . .

The Constitution is a decidedly anti-majoritarian document in wonderful and important ways that intentionally protect our rights and our liberties. And the role of the Supreme Court—in protecting those rights and liberties—is sometimes precisely to frustrate the will of a majority.

Let’s unpack this by looking at how the Constitution deals with religion.

The First Amendment prohibits the government from establishing any state religion, and guarantees that every citizen can worship—or not worship—however they want. If, somehow, polling showed a 51% popular desire to pass a law making church attendance mandatory, or to subsidize a particular religious denomination, the Supreme Court would rightfully strike down such laws.

This is because in the Constitution we decided to limit our own power. We the people decided at the founding of our nation to restrain our own majoritarian impulses. By enacting a Constitution, we intentionally tied our own hands so that there are certain things the majority may never do, like invade someone’s conscience. And if the majority—in its arrogance—should cross the line, the Supreme Court rightfully says no.

When Congress passes an unconstitutional law, it is, in fact, Congress that violates the longer-term will of the people. The judiciary is there to assert the will of the people (embodied in our shared constitution) over against that unconstitutional but temporarily popular law. . . .

When a Supreme Court justice puts on his or her black robe, we don’t want them confusing their job for those of the other branches. We want them policing the structure of our government to make sure each branch does its job, and only its job.

Read more here.

Ben Sasse on Fox: Gorsuch Should Be Confirmed