The High Court's shattered mystique

Who finally decides what is “the law?” The Supreme Court.

Justice Robert Jackson once conceded, “We are not final because we are infallible, but we are infallible because we are final.”

Politicizing an impartial court weakens our democracy.

Imagine as many as 30,000 parts, precisely engineered, manufactured, and delivered. If properly installed and maintained, they can become what you call “my car.”

Our democracy is also a creation of many parts.

At its base are what Alexis de Tocqueville called “associations.” We are volunteers in over a million nonprofits and informal gatherings, from union locals and church congregations to clubs for gardening or playing bridge.

Next are the institutions I’ve called the Columns of Democracy, such as public schools and libraries to educate us; independent investigative journalism to inform us; networks from highways to broadband to promote our e pluribus unum; culminating in an expanding electorate and ever easier voting.

Of course, as Columbo might say, “There’s just one more thing.” The judiciary.

Most of our behavior is moderated not by laws but by norms, such as “Iowa nice.” There are norms for resolving most disputes. But occasionally, whether in business or in marriage, we just can’t “work it out.”

One approach used to be the challenge to a duel or some other form of homicide. Or maybe a war.

Another is like fighting siblings going to one or both parents to settle a dispute. We realize we need a resolution and agree to accept the decision of an arbitrator or judge.

And if 94 federal district and 13 appellate courts don’t agree about “the law?” We ask our “parents,” the Supreme Court, to hear our case.

Unlike the politicized executive and legislative branches, the Constitution gives justices life tenure, in part, to create a politically nonpartisan, impartial Court. In selecting which cases to hear, it may reject those turning on a “political question.”

With no access to military force, the Court needs more than finality and impartiality for public acceptance of its infallibility. It needs some mystique.

Like the building.

I served as Justice Hugo Black’s law clerk. My first day my wife needed the car and drove me to work. When she pulled up in front of the Supreme Court, our wide-eyed, disbelieving daughter, Julie, asked incredulously, “Daddy, you work in there?!” (Not incidentally, as I recall, there were no “partisan” conversations among clerks or justices during my year.)

It’s not just the building’s exterior. There’s also the marble, high ceilings, hallway gates, black robes, the curtain dramatizing justices entrance into an imposing courtroom, the bench well above lawyers and audience, the secret justices-only “conference.”

Now politicians, journalists, public — and even justices’ behavior — are treating the Court’s justices as a third political branch (“liberal,” “conservative”). It’s as if they were throwing rocks, shattering the mystique and grand vision of the Constitution’s drafters.

Who’s left to be infallible? Only authoritarians?

Nicholas Johnson clerked for Justice Hugo Black and is the author of “Columns of Democracy.” Contact mailbox@nicholasjohnson.org