Do We Have the Supreme Court We Deserve?

When I left the daily Supreme Court beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2, 691 Decisions, ” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion: “The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve. ” A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve? ” she asked. Actually, sadly, my answer now is no. It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much. ” Nonetheless, Justices John Paul Stevens, Anthony Kennedy and David Souter were still on the bench in 2008, proving every day that to be a Republican-nominated Supreme Court justice was not necessarily to be a handpicked conservative spear-carrier in the country’s culture wars. (The three were chosen by Gerald Ford, Ronald Reagan and George H. W. Bush respectively. ) It had not occurred to anyone then that a hostile Senate in 2016 might keep a president’s Supreme Court nomination bottled up for 11 months without even a hearing, nor that a supine Senate would do a subsequent president’s bidding four years later and bludgeon a nomination through to confirmation while millions of Americans were already casting early ballots for president.