A Constitution for All Times

14. Empty Benches

There’s a story told about Joe McCarthy —not the right-wing senator from Wisconsin, but the manager of the great New York Yankees teams of the 1930s and ’40s. McCarthy dreamed that he had died and gone to heaven, where Saint Peter told him to assemble an all-star team. McCarthy was excited: he’d have Christy Mathewson and Walter Johnson, Honus Wagner, Lou Gehrig. Just then, the phone rang. It was Satan challenging McCarthy to a game. “You haven’t got a chance of winning,” McCarthy exclaimed. “I’ve got all the players.” “Oh, I know that,” Satan answered. “But I’ve got all the umpires.” The umpire can have a huge impact on how the game turns out, as the Supreme Court’s self14 . Empty Benches  a constitution for all times described umpire-in-chief, John Roberts, has shown. But the chief justice ignores this when he celebrates the fact that today’s Court is the first without even a single justice who has served in elective office, claiming that drawing on the lower courts for justices— as opposed to drawing on Congress, governors’ offices, and the Cabinet—has shifted the Court from “fluid” considerations of “policy” to the “more solid grounds of legal argument.” In the Affordable Care Act cases, where the Court narrowly upheld the individual mandate while imposing new and potentially significant limitations on Congress’s commerce and spending clause powers, he wrote that the Justices possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. pamela s. karlan  But given how much judges influence policymaking , one of the most important consequences of the people’s political choices is the composition of the courts themselves—and not just the Supreme Court. In the 2011 term, the Supreme Court issued opinions in 65 cases after oral argument, the fewest since 1953, when it heard arguments in Brown v. Board of Education. Over the past fifteen years, the Court has fairly consistently decided between 75 and 80 cases, roughly half the number it was deciding as recently as the final years of the Burger Court. At the same time, the federal courts of appeals disposed of more than 57,000 cases in the year ending last September, and the federal district courts of more than 300,000.The judges serving on these lower courts have tremendous leeway on a range of matters , from sentencing individuals in federal criminal cases to determining whether a plaintiff’s claim of discrimination is plausible enough to proceed to discovery and trial. Federal laws and policies concerning everything from consumers’ rights to privacy to labor  a constitution for all times protections are enacted by our nation’s elected leaders , yet they often are only as effective as the judges who apply them, case by case. Thus one of the most important legacies a president leaves behind concerns judges who continue to shape the law for decades. Federal judges serve for life, and Justice Stevens’s distinguished career—he was nominated by President Gerald Ford and served from 1975 until shortly after his 90th birthday in 2010—is a reminder that judges can live a very long time. In 2012 Judge Wesley Brown, nominated to the federal district court in Wichita, Kansas by President John F. Kennedy in 1962, died while still serving at the age of 104. The nomination and confirmation process that put Brown on the bench 50 years ago has become increasingly politicized and dysfunctional in the quarter -century since the failed Supreme Court nomination of Robert Bork turned filling the federal bench into a blood sport.Though public attention naturally focuses on Supreme Court seats, much of the real ac- pamela s. karlan  tion concerns seats on the thirteen federal courts of appeals and the 94 district courts. Over the last 30 years, as American politics has become polarized to a degree not seen since the nineteenth century, a conservative legal movement has self-consciously sought to move the federal courts to the right as part of a campaign to roll back key pieces of existing legal doctrine, such as federal power to regulate...