The nomination hearing for Neil Gorsuch is the most recent reminder of the profound effect of each appointment to the Supreme Court and of some of the issues that most deeply divide liberals and conservatives. By making Supreme Court appointments life-long positions, our Founding Fathers avoided replacing some or all of the justices with each election cycle. However, when a seat on the Court comes open, the fight over who will fill it reaches monumental proportions. There are fewer political battles over appointing and confirming justices, but these battles are for some of the highest stakes in politics.
Ironically, the Supreme Court is where decisions should be most firmly divorced from politics. The Court’s role today is to apply the Constitution in cases that the Founding Fathers never could have envisioned. The writers of that document could not have foreseen battles over frozen embryos or surrogacy, battles over whether or not to keep a patient alive artificially, or battles over same-sex marriage. They did foresee problems caused by the existence of slavery in the new nation even as they carefully avoided all direct references to slaves or slavery. In a moving essay written on the occasion of the bicentennial of the Constitution in 1987, Thurgood Marshall, the first African-American Associate Justice of the Supreme Court, explained that the Constitution was, from the beginning, a flawed document because even the first three words, “We the People,” did not include slaves or women. As the nation prepared to celebrate the document, Marshall pointed out that the framers of the document were not as wise as is often claimed. He wrote, “To the contrary, the document they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today.”
It is our nation’s respect for individual freedoms and human rights that makes it so difficult to decide cases that will have a profound impact on the future. Cases are not appealed to the Supreme Court unless they are the most difficult of cases to decide. They are cases where one person or party’s interpretation of individual freedoms and human rights clash clashes with another’s. America was founded on the principle of religious freedom, but the perception that it is a Christian nation and thus that Supreme Court rulings should be based on Biblical concepts clashes with the concept of personal liberty. That is why abortion is one of the most hotly debated issues when it comes to choosing a new justice. Factual evidence cannot prove that either pro-life or pro-choice advocates are right. Opinions are based on individual values, but how does a court decide whose values should prevail? America is also a nation of immigrants, yet fear of terrorism has led to the desire on the part of some to block immigration from nations most likely to breed terrorists. Again, values clash.
We err when we make any single issue—abortion, immigration, same-sex marriage, the death penalty—the basis for choosing the next man or woman to interpret the Constitution at the highest level. In this particular instance, we have to place one overriding value over all others, even others that we feel we have a moral imperative to endorse. That overriding value is the value of the Constitution as the bedrock of our republic.