National Law Journal - The Supreme Court's Blind Spot: Understanding How Democracies Function

Op-Ed

By Sheldon Whitehouse

In Marbury v. Madison, the foundational case establishing judicial review and cementing the U.S. Supreme Court's role in our democracy, Chief Justice John Marshall asserted, "It is emphatically the province and duty of the judicial department to say what the law is." Unfortunately, today's group of Supreme Court justices in charge of deciding "what the law is" as to how our political system operates have no experience operating within that political system.

In the wake of Justice Antonin Scalia's death, politicians, pundits and court watchers all recognize that an ideological shift on the Supreme Court could be in the works. One consequential shift may come if the president nominates a person with a background in elected politics who has first-hand experience with campaign ads, fundraising and constituent accountability.

Justice Sandra Day O'Connor's departure from the bench in 2006 left the high court with no justice who had ever run for or held elected office for the first time in its more than 200-year history. It's a telling gap. Many of the most esteemed and influential justices cut their teeth in politics before ascending to the bench. Chief Justice Marshall spent more than 10 years as a congressman from Virginia before President John Adams nominated him. Justice John Marshall Harlan, who wrote the legendary dissent against segregation in Plessy v. Ferguson, previously ran for governor of his native Kentucky and served as the state's attorney general during the Civil War.

Chief Justice Earl Warren, at the time of his nomination, was serving as governor of California. In 1954, in his first year on the bench, Warren was faced with a case of monumental significance--Brown vs. the Board of Education of Topeka, Kansas. Warren understood the need to finally strike down segregation across the country. Yet, drawing from his experience in politics, Warren realized that such a historic and far-reaching decision required unanimity. The chief justice, working with his allies, painstakingly forged the consensus that was essential for such a landmark decision.

The current Supreme Court would do well to follow this example. The Roberts Court has failed to achieve unanimity on virtually any major dispute; often preferring 5-4 decisions to the work of compromise. Moreover, the high court exhibits a brash ignorance in cases involving elections and our political system of government.

One need look no further than the Supreme Court's disastrous decision in Citizens United v. Federal Election Commission and the constellation of cases that followed. These decisions have allowed the "tsunami of slime" of dark money, Orwellian "social welfare groups," and the endless cycle of negative campaign ads to wreak havoc on our political system.

This result would have been clearly predictable to anyone with experience of the political fray, and the death grip that money can have over elections. But the Citizens United court, made up primarily of justices whose professional life experience has mostly consisted of waiting to be on the Supreme Court, was oblivious.

Today we have a Supreme Court institutionally clueless on the realities of workaday democracy and politics. Experience might have constrained the rash and mistaken leaps taken by the Citizens United majority; with experience, the dissenters might have mounted a better defense.

In the coming months, much ink will be spilled over the ideology of the president's eventual nominee. It may be wise, however, to consider a wider problem. The Supreme Court has a mammoth collective blind spot in understanding the operation of our elected democracy. The feeder system to the Supreme Court has been narrowed to a tiny set of Ivy League career judges, whose understanding of politics is amateurish and whose temptation to meddle is undisciplined by reality.

The Supreme Court will better "say what the law is" if it understands what the reality is. The court would be well-served by a dose of reality.

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