• In Sable and Black Robes


    One of the most striking features of the modern public ritual initiated when a candidate is named by the President to the Supreme Court is the celerity with which all of the relevant actors snap into place. A general spirit of merriment and free-wheeling parlor speculation mutes one day, quite suddenly, into an aperient tremor across the Beltway papers that that the vetting is now “closed,” that a decision “has been made,” that a nomination is “imminent,” culminating finally in a colorless statement issued by the White House establishing a date and time for the coming-out ceremony: fumata bianca. As the clock strikes the hour of coronation, through Cross Hall and into the East Room will walk the President and the triangulated product of what has for weeks been referred to inevitably by the national press as a “tricky political calculus,” often alongside a beaming wife or husband or mother. And so begins the nominee’s elevation out of obscurity—at least briefly—into the highest reaches of celebrity our political media has to offer. We call this showering of attention the “Supreme Court nomination process,” and it is perhaps, with the exception of our presidential elections, our democracy’s single most elaborate exercise in self-deception.

    The modern Supreme Court has as its given an institutional composition (a certain number of justices appointed by the President with the “advice and consent” of the Senate, as specified by the Constitution) and an ideological one. It is the fantastic residue of our democracy’s boundless capacity for magical thinking that we are to speak in certain settings as if this second composition did not exist. It is magical thinking that leads us to believe, for instance, that the application of reasonable and yet mutually incompatible interpretations of the law with respect to divisive public policies takes place inside some cleanroom of the mind, immaculate of the preferences for certain policies over others that even citizens who have not spent their entire lives preparing for careers as agents of public policy tend to have. It is magical thinking that leads us to believe, for instance, that the sort of maturation of intellectual instincts that inevitably accompanies a young thinker’s rise from “law student” to “Supreme Court appointee” culminates in a sort of tabula rasa, a disinterest in or even ignorance of the relevant ideological alternatives—and their respective virtues and foibles—that have directed various members of Supreme Courts past toward opposing commitments, and opposing conclusions.

    But this is the United States Congress we are talking about, and the entertainment of magical thinking is their business here. To observe the hearings that culminated in the recent elevation to the Supreme Court of Neil Gorsuch, the conservative jurist nominated by Donald J. Trump to replace Antonin Scalia, is to remember the extent to which nominees from both parties have gone to uphold that particularly American delusion: that the border separating the values one must rely on to adjudicate jurisprudential controversies and the values one must rely on to adjudicate all other controversies—including the controversies at the heart of our nation’s contentious political fabric—is somehow clear enough to erect on top of which an impermeable wall.

    “I do not permit personal views, sympathies, or prejudices to influence the outcome of cases,” said Sonia Sotomayor during her confirmation hearings in 2009, suggesting presumably that a preference for one of several viable interpretations of the law, the existence of which would provide the sole basis for which a case in controversy would rise to the attention of the Supreme Court, is not in fact a “personal view.” But each interpretation we settle on derives from the same wellspring of values that gives rise also to our sympathies and prejudices: interpretations are necessarily subjective, are necessarily constructed by our preferences and biases and the life stories that inform them, are necessarily constricted by what we intuitively do and do not see. In the cracks of the ambiguities of text—whether the text in question is the Constitution, a judicial precedent, or Finnegans Wake—exists space for multiple interpretations to flourish, and the degree to which any plausible interpretation of an ambiguity is more or less viable than any other depends entirely on where the interpreter initially stands—depends entirely, that is, on the interpreter’s “personal views.”

    And yet to comb through the transcripts of the past three decades of nomination hearings is to encounter again and again a studied recital of this sentiment, articulated here with a touch of pathos by John Roberts in 2005: “The ideal in the American justice system is epitomized by the fact that judges, justices, do wear the black robes—and that is meant to symbolize the fact that they’re not individuals promoting their own particular views.” In other words we require these black robes to sustain a more fundamental fiction: that the pronouncements of the Supreme Court emanate from a wisdom uncontaminated by mere “opinion,” proceed from a provenance that is in some way “enlightened,” that is in some enigmatic sense “pure,” that can hold the burden of being the final word on subjects of disputed legality and constitutionality, on issues of life and death, on matters that will change the course of this country and the private fates of its three hundred million citizens enduringly if not irreversibly—and so what a wonderful providence it has been to find again and again a group of impartial observers so ruthlessly disinterested in the attainment of any particular outcome.


    “There is no such thing as a Republican judge or a Democratic judge. We just have judges in this country.” With this extraordinary pronouncement Neil Gorsuch opened his first day of public testimony before the Senate Judiciary Committee, part of the four-day hearings that would determine whether he would replace Antonin Scalia, who had died thirteen months earlier, on the Supreme Court. It is an extraordinary pronouncement for several reasons. For one, it appeared to signal on the part of Gorsuch a flair for affectation that must have put to rest any fears the White House might have had that their new nominee was simply too earnest or forthcoming to perform the theatrical functions necessary to advance to the nation’s highest court. After all a theater had been built around him, draped in the costume of court proceedings—aside from Gorsuch himself, an astonishing twenty-eight witnesses would be called to testify either in support of or against the nominee—as if the week had begun with a discussion of the nominee in attendance and not a bizarre volley of accusations and recriminations about the fate of the last nominee appointed by the previous President to replace Antonin Scalia on the Supreme Court; as if the hearings themselves were not an event with an outcome computable via a cursory assessment of the partisan composition of the United States Senate.

    The story is worth replaying. On March 16, 2016, a month and three days after Justice Antonin Scalia’s death, President Obama nominated Merrick Garland to the Supreme Court. Garland, a “well-known, well-respected, and tremendously well-liked” federal appellate judge whose celestial reputation had put him near—but never at—the top of the media’s shortlist of potential Supreme Court nominees in both 2009 and 2010, had almost all of the qualities of a twenty-first-century legal superstar: a law degree from Harvard; a Supreme Court clerkship; a prolific career as an Assistant U.S. Attorney, during which he supervised several high-profile domestic terrorism cases; and most significantly, a judicial record on the D.C. Circuit Court that had been consistently described by political observers as “centrist,” “moderate,” and “consensus-building.” In a country that needs to see itself as having an “apolitical judiciary,” whether it in fact has one or not, restraint and affability tend not so much to be private virtues as public totems that can be affixed to a judicial record by the political media like a decorative seal, typically in the form of descriptors such as “centrist,” “moderate,” or “consensus-building.” A seat at the crown of America’s “apolitical judiciary” seemed—were the right justice to retire, and were the country to have a center-left or center-right President at the helm—Garland’s professional destiny.

    Garland’s nomination began, as usual, with a coming-out ceremony. President Obama emerged at 11 a.m. from the West Wing Colonnade, flanked by Vice President Joe Biden to his right and his new nominee to his left. When it was Garland’s turn to speak, a quick cut to the front row by ABC News revealed a row of familiar faces: Democrats, every last one of them. That the party that was not there was also the party in power in the Senate, the party that could choose to convene or to not convene hearings for the President’s nominee at its sole discretion, appeared lost on no one. Within minutes of Garland’s introduction, Mitch McConnell issued the following remarks from the Senate floor:

    Mr. President, the next justice could fundamentally alter the direction of the Supreme Court, and have a profound impact on our country—so of course, of course, the American people should have a say in the Court’s direction. . . . Let me remind colleagues of what Vice President Biden said when he was chairman of the Judiciary Committee here in the Senate: ‘It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.

    A bit of context here: by 1992, the Republicans had controlled the White House for well over a decade, the longest rule by a single party since Roosevelt and Truman’s two-decade run ended in 1953. Ronald Reagan (and to a lesser extent, George H.W. Bush) would leave an imprint on the ideological composition of the federal judiciary felt throughout the 1990s and 2000s: together the two Presidents added five people to the Supreme Court, two of whom had replaced conservatives, two of whom had replaced liberals, and one of whom had replaced a moderate. Frustration, in other words, was the operative principle underlying Biden’s 1992 remarks to the Senate: frustration, undoubtedly, with his party’s inability to take back control of the White House and therefore seize control of the federal judiciary.

    That the United States Constitution provided only bare-bone instructions for the nomination and appointment of the federal judiciary proved, depending on which party controlled the White House and which party controlled the Senate, to be an ever-shifting blessing. (Indeed, although Biden’s party did win back the White House in 1992, the President who came into office only managed to add two people to the Supreme Court during his eight years in office.) Frustration seemed to be the operative principle underlying McConnell’s 2016 remarks to the Senate as well, albeit a frustration that could not be expressed without diluting the notion of an “apolitical judiciary”: frustration with the fact that a seat that had belonged to a conservative—and not just any conservative but Antonin Scalia, that legendary firebrand of the high court—was now in danger of being filled by a Democrat.

    McConnell’s frustration, of course—as do all frustrations about our political process when articulated by our political actors—had mutated into a justifying principle that, by the time this principle was articulated on the Senate floor, had been sublimated beyond all recognition: first into the principle that in naming someone to the Supreme Court during an election year, the President had deprived the American people of their “voice”; and then into the principle that in order to give the American people back their “voice,” the Senate should wait until after the election before confirming anyone to the high court. (That the President had nominated a moderate, a possibility that Joe Biden not only addressed in his 1992 remarks to the Senate but spoke approvingly of—“if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter”—seemed to have no effect on McConnell’s frustration, and therefore no effect on his justifying principle.)

    The degree to which McConnell’s principle resonated with his colleagues in the Senate seemed to depend entirely on the colleague’s party affiliation. (“I happened to be running for office during that, and in the United States Senate, and so I did support the position that—I met with Judge Garland—I did support the position that with a presidential year the people should weigh in by electing the next President,” Kelly Ayotte, a former Republican senator from New Hampshire, told the Harvard Gazette in 2017.) Ted Cruz, the Republican senator from Texas, no doubt sharing not only McConnell’s frustration but the additional frustration of having recently lost a campaign to be his party’s nominee for President, went even further when he suggested later that year, as Donald Trump’s polling numbers against Hillary Clinton hit an all-time low, that Senate Republicans should block all Supreme Court nominees indefinitely should the Democrats retain control of the White House. (The justifying principle into which his frustrations had been sublimated was that one of the Supreme Court justices had “recently observed,” Cruz noted, “that the vacancy [was] not impacting the ability of the court to do its job.”)

    In the torrent of what passed for self-examination by the media in the aftermath of Donald Trump’s stunning electoral victory on November 8, 2016, two factors quickly gained ascendancy in the media’s scramble to explain how a 71-year-old reality-T.V.-show vulgarian had won the White House: a higher-than-expected turnout by white working-class voters, and James Comey’s announcement ten days before the election that the FBI had reopened its investigation into Hillary Clinton’s private email server. What did not capture the media’s attention was the Supreme Court seat that had by then sat vacant for 237 days.

    Yet in the weeks and months before Election Day, the Supreme Court vacancy had become an issue invoked by both candidates at nearly every campaign stop (Trump: “Even if you dislike Donald Trump, I’m going to put great conservative justices on”; Clinton: “I want a Supreme Court that will not reverse marriage equality, that will not reverse Roe v. Wade, that will stand up against Citizens United”), and the sentiment that “perhaps no single presidential decision is as consequential as choosing Supreme Court justices” had appeared in multiple media outlets. When I think back to my own experience speaking with friends in the days and weeks leading up to the 2016 election, days and weeks in which the diminishment of self-respect seemed to be the only stable attribute of our democratic process, I remember hearing a lot about Trump’s boorishness and nativism and misogyny, about Clinton’s foreign policy record and her ties to big banking, but the phrase I kept hearing again and again was “the Supreme Court.”

    That open seat.
    That waiting justice.

    On the night of November 7, 2016, three separate exit polls by ABC, CNN, and Fox News each found that Supreme Court appointments were “the most important factor” for 21 percent of voters. Those voters broke for Trump over Clinton by an average of 16 percent. I can still remember watching T.V. as the results came in; Trump had just won Florida and he was poised to win Wisconsin and Pennsylvania, and a shell-shocked Chris Matthews was telling Rachel Maddow on MSNBC: “I heard another source today that the people out there on the Republican side have a real problem, they hold their nose on Trump, but they do care about the Supreme Court.” “I heard that from John Boehner a week ago,” Nicolle Wallace chimed in. “I said what’s your message, he’s out there obviously as a private citizen now giving speeches, and he said my message is exactly as you articulated, in the same words: hold your nose and vote for him for the sake of the Supreme Court. It obviously resonated.” I can still remember the moment it dawned on me that not only Trump’s candidacy but the Senate Republican majority would prevail, that some admixture of nativism and nausea with the status quo had brought in a conservative deluge, looking at the boyfriend who I might or might not marry in the spring but at any rate enjoyed having the right to do so, and thinking, thinking and perhaps even saying out loud: And there it goes.

    There what goes?
    There goes the Supreme Court.

    On January 3, 2017, fifty-six days after Donald Trump was elected President of the United States and 294 days after President Obama had emerged into the White House Rose Garden with his new nominee, and a warning to Senate Republicans that a failure to convene hearings for his nominee would suggest “a process for nominating and confirming judges that is beyond repair,” Merrick Garland’s nomination to the Supreme Court officially expired.


    It is either a surplus of romanticism or an affected imitation of that surplus that would compel a man to suggest that partisanship had yet to contaminate the federal judiciary, a branch of government whose entire composition is handpicked by a President and confirmed by a theater of senators. On January 31, 2017, the newly-elected President nominated Neil Gorsuch to Antonin Scalia’s seat on the Supreme Court. Gorsuch, like Garland, had graduated Phi Beta Kappa from an Ivy League school, had gone on to Harvard and then clerked for the Supreme Court, had done a stint at the Department of Justice before being named by George W. Bush in 2006 to serve as a judge for the Tenth Circuit Court of Appeals. He in other words had collected in his passage through life achievement after achievement, trophy after trophy; had—as an employer of Garland’s once put it to the New York Times—a “résumé that makes you want to cry.”

    It is worth pausing to consider here the degree of restraint and affability that the sort of person with a “résumé that makes you want to cry” must inevitably harbor: the sort of person who could inspire in his friends notices like, “If anybody was going to be the President, it was going to be Neil Gorsuch”; the sort of person who could, after being handpicked by the Republican President from a list of twenty-one names supplied to him by the Heritage Foundation and the Federalist Society—it is worth pausing to consider here the degree of restraint and affability that such a person must inevitably harbor to look the Senate Judiciary Committee in the eyes, and say with a straight face: “There is no such thing as a Republican judge or a Democratic judge. We just have judges in this country.” And it is worth pausing to consider here the applicability of this restraint and affability to the modern Supreme Court nomination hearing, a hearing that convenes in each instance with remarks by a dais of senators who express at least a nominal interest in how the nominee will “reveal” himself, can be most usefully understood as an exercise not in self-revelation at all—but in self-mastery.

    Restraint and self-mastery, polished with a coat of affability, saturated every aspect of Gorsuch’s Senate testimony on March 21 and 22, 2017, revealing a man whose commitment to evasion and equivocation extended all the way to his inability to name his “favorite fishing stream” in Colorado, a throwaway tossed by the Republican senator from Idaho. Here was a man affable enough to correct himself when the phrase “undocumented alien” spontaneously tumbled out of his mouth (“—immigrant, sorry”); a man who would cite several times at the hearings a case in which he had found in favor of a petitioner who happened to be an undocumented immigrant, a case whose ruling in fact demonstrated an interest in curtailing the power of federal executive agencies, as somehow dispositive of his concern for “the ordinary American, and sometimes the non-American”; a man who would suggest that sitting on a panel that replaced a judge for “perhaps using language that might bear on a man’s ethnicity, arguably,” without explaining what position he had taken on the panel, could somehow function as a character-revealing detail.

    Not the intransigence of his refusal to offer any signals about his personal views, which every Supreme Court nominee has “had to do” since the collapse of Robert Bork’s nomination in 1987, but the fact that his refusal was predictable, expected, “baked into the system” is the remarkable feature here. Gorsuch’s performance—and it was, like the State of the Union or anything else a politician involves himself with that unfolds in front of a camera, a performance in every way—had been baked into the script of the “Supreme Court nomination process,” and all Neil Gorsuch had to do was play his part correctly. To wonder if some ejaculatory fireworks by a senator on the other side, himself angling for a ten-second cut on the evening news, might distract the nominee from reading the script correctly is to wonder if a Frisbee might alter the path of a comet.

    This is why it is important to understand the sort of person we are talking about here. We are talking here about the sort of person whose preternatural instincts for restraint and self-mastery (and brilliance and affability and so forth) have gotten him to not so much a nomination hearing but a finish line. We are talking here about the sort of person whose elevation past the finish line hinges on his ability to indulge our public fables one last time, to play in front of the T.V. cameras one more role—the role of a judicial technocrat who is neither a Republican or a Democrat, an exasperated sitcom father who floats freely above the riffraff of politics, a cipher in black robes whose capacity for speaking about the principles and doctrines underlying various legal controversies is matched only by his facility for speaking in platitudes and generalities when confronted with a question that comes anywhere close to grazing his mind for an opinion of his own.

    We are talking here about the sort of person who has been preparing for his confirmation hearings all his life.

    What happens on the Supreme Court has policy ramifications for not only a set of petitioners and respondents but for every citizen in the United States (and sometimes “non-Americans” as well), and not the text of the Constitution but an 1803 decision by the Supreme Court to grant itself the power to invalidate Congress’s laws and the President’s actions made it so. When we think of how our country has transformed in the past two and a half centuries, we tend to think of individual strongwomen and strongmen, events that “changed everything,” marches and explosions and assassinations, cultural transformations that had as its source no single wellspring, certain Presidents and certain icons; and we tend to think of the Supreme Court.

    Our Miranda rights.
    Interracial marriage.
    A woman’s right to choose.
    The desegregation of public schools.

    I remember reading Plato as a child and falling in love with the idea of philosopher-kings. “This is the way society should be ordered,” I remember telling my English teacher in the seventh grade, “by benevolent rule.” I stopped believing in benevolent rule the moment I understood that our truest motivations, our deepest reasons for doing anything at all, are either forever self-interested or else forever unknowable. I remember watching Neil Gorsuch’s swearing-in ceremony in the White House Rose Garden live on T.V., watching Anthony Kennedy as he administered to Gorsuch the oath of office as Donald Trump looked on, watching Ruth Bader Ginsburg in her cream blazer and dark glasses sitting in between Clarence Thomas and Stephen Breyer in the front row, and wondering which of these eight justices the Heritage Foundation and the Federalist Society will get to replace next.

    Gorsuch, who until his nomination to the federal judiciary in 2006 by a Republican President had been a card-carrying member of the Republican National Lawyers Association, continued to maintain throughout his twenty-hour hearing that a “canon of ethics” precluded him “from getting involved in any way, shape, or form in politics.” There is a reason why, he said, “judges don’t clap at the State of the Union, and why I can’t even attend a political caucus in my home state to register a vote in the equivalent of a primary.” (It is worth pausing to consider here what sort of impression a man must have of his role as a federal appellate judge on the brink of rising to the Supreme Court that he would construe an inability to clap at the State of the Union or attend a political caucus in his home state as a net loss in his political efficacy.) It is one thing to admit that the vast majority of our federal judges, as a product of a hyper-partisan judicial appointment process fashioned out of fourteen words in the Constitution, have ideological orientations that are if not “political” in essence then at least predictable in practice; and then to dispute the value or significance or actionable implications of this observation. It is another thing to reject this observation altogether.

    And yet there it is.

    “There is no such thing as a Republican judge or a Democratic judge. We just have judges in this country.”

    This statement would stay with me well after I had finished watching Neil Gorsuch’s confirmation hearings, during which he repeatedly responded to any question about his forty-one-year involvement in conservative politics with the statement, “Senator, judges have to stay out of politics”; would stay with me well after I had realized that the face he gave at the Senate hearings would be generally commended by the media as “affable” and “congenial” and “clean-cut,” the face of a good ol’ boy from Colorado who had gone on to Columbia and Oxford and Harvard Law, and that any recognition of his testimony as a sustained two-day-long exercise in obfuscation broke down along party lines; would stay with me well after I had learned that Justice Gorsuch in his first two months on the Supreme Court had sided with Justice Sotomayor 40 percent of the time, with Justices Ginsburg and Breyer and Kagan 53 percent of the time, with Justice Kennedy 73 percent, with Justice Roberts 80 percent, with Justice Alito 93 percent, and with Justice Thomas, widely regarded as the most conservative member of the present Court, 100 percent of the time.

    A popular emphasis on a nominee’s congeniality and affability and the presence of certain “professional qualifications” functions only to give the nominee’s political affiliations and ideological leanings a place to hide, helps only to conceal from the American public that these leanings and affiliations were all that mattered for the nominee’s selection by the White House in the first place. This element of the “Supreme Court nomination process,” unlike what unfolds publicly at the Central Hearing Facility of the Hart Senate Office Building, is abstruse, clandestine, and rampantly partisan—we do not know precisely how the nominees’ names will be culled or on what basis or by whom. “They,” and not the public, will know all they need to know about the finalists’ political affiliations and ideological leanings. “They,” and not the public, will counsel the finalist on how to obfuscate those leanings and affiliations efficiently.

    There is no such thing as a Republican judge or a Democratic judge. We just have judges in this country. It is one of the fables about our political process that we have not only inculcated our bright young things into believing, but punished them for not repeating: those bright young things who walk the procession every year from Harvard Yard or University Chapel or Stanford Quad to an internship on Capitol Hill, and then to Yale Law, to a clerkship on a Court of Appeals and then the Supreme Court, to a year or two at Latham & Watkins and then five or six at the Department of Justice and then, if all goes well, if the bright young thing is affable and congenial and has said the right things and shaken hands with the right people, to the attention of an organization like the Federalist Society or one of its many liberal equivalents, to a seat on the federal judiciary; and then maybe, just maybe, if the right person were to become President and the right person were to resign or die, to a seat on the Supreme Court.

    To a greater degree than Congress or even the President, we have been conditioned to look to the Supreme Court to perfect the soul of our union. We look to the Supreme Court to interpret not only our laws, which may or may not be riddled with ambiguities, but our Constitution, which demonstrably is. We have discovered inside of those ambiguities the constitutionality and unconstitutionality of slavery, the constitutionality and unconstitutionality of segregation, the constitutionality and unconstitutionality of sodomy laws, the constitutionality and unconstitutionality of laws banning same-sex marriage, the constitutionality of forced sterilization and ethnic internment, the unconstitutionality of bans on corporate political speech. We are told that any one of these precedents can change at any time, be overturned by the will of some future Court. We are told to trust the justices who created these precedents, and to trust the justices who overturn these precedents, because in each and every instance they were not acting on their “personal views.” We are told that in order to execute his or her functions correctly, we must learn as little as possible during the nomination process about a judge or justice’s “personal views.” We are told that the nomination process is a functional check on the judge or justice’s power, a check that guarantees the judge or justice’s “independence,” and that this independence justifies the judge or justice’s lifetime seat on the high court.

    In short, we are told to trust those black robes.

    The Supreme Court is the closest thing our country has to a benevolent despot, to unchecked elite rule, to a permanent class of philosopher-kings. I think of all those smart, affable, clean-cut boys and girls I walk past in the corridors of Yale, all the big words they use and all the wonderful fates they must be settling into in their minds. I think of all the stories they’ll be able to tell from their time at the bottom of the pyramid, all the backs they’ll scratch and all the fables that they’ve yet to learn. What would I want to know that they know before they put on those robes, and become our philosopher-kings? It is a question I suddenly realize arrests me completely. It occurs to me suddenly that there will not be much for the rest of us to do, the great many of us who will not make in our lifetimes that walk from Harvard Yard to Latham & Watkins to the Robert F. Kennedy Building and then to the Supreme Court, as our attention spans dwindle and our democratically-elected institutions congeal with each passing year into partisan paralysis, there will not be much for the great many of us in this country to do but to turn off the T.V. and wait, to divert ourselves with idle amusements, to distract ourselves with petty bickering and even pettier controversies, to pretend we are doing something by “speaking up” about the bickering and “keeping up” with the controversies, to get out the “vote,” to make ourselves “heard,” to take action “today,” to turn on the T.V.—and wait.