But Schumer didn't just show his inability to read the vital signs of the American electorate, he also showed how little he knows about what the Senate should look for in a Supreme Court Justice. "Mainstream" is not something that any good judge aspires to be. They strive to write opinions that are fair, impartial, objective, unprejudiced, and true to the law, even when those opinions fall out of the mainstream. They come from a profession with heroes whose greatest moments were decidedly anti-mainstream: Atticus Finch defending Tom Robinson and John Adams defending British soldiers.
Supreme Court Justices don't have a need to be "mainstream," either. Unlike legislators, who keep their jobs only so long as they can stay in the good graces of their constituents, Supreme Court Justices have no constituents; they are appointed, not elected. Their job is to say what the law is, however inconvenient or unpopular that might be. And if the people don't like it, then too bad, because there isn't a darn thing that they can do about it.
Justices who don't answer to the mainstream popular opinion seems so undemocratic.
It is. That's the whole point.
As Alexander Hamilton explained in the Federalist Papers, Supreme Court Justices were not meant to respond to the "ill humors of society," they were to stand apart from them and keep the people from trouncing over the separations and safeguards that were so carefully arranged in the Constitution. Good justices are bound to be unpopular. After all, they stand in the peoples' way when they have an impulse to create a law or elect a president that would violate an unpopular minority's constitutional rights. They are like sober friends at a raucous party: everyone might roll their eyes, but the next morning they will be grateful that someone stopped them from starting a bonfire in the living room.
To that end, the constitution almost totally insulates the Supreme Court from the political pressures that would otherwise push them into an unconstitutional mainstream. While legislators campaign, justices fulfill their constitutional duties in the quiet of libraries.
If the true test of a good justice is his ability to fairly and impartially interpret the law as written, then Neil Gorsuch is a fine choice. Conservatives are not the only ones praising the strength of his judicial character. Neal Katyal, an acting solicitor general in the Obama administration, praised Gorsuch as "someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws." If a justice with that kind of universally-recognized integrity is not in the legal mainstream then there is something wrong with the legal mainstream, not Neil Gorsuch.
Democrats should join in approving Gorsuch's appointment. They will only hurt themselves if they don't. Unless they find better ammunition than Schumer could muster, opposing such a nominee will expose their own disaffection for a Constitution that doesn't say what they want it to say.
In the long run, Democrats will be better off if they put their support for judicial activism behind them. This will mean, of course, that the Supreme Court will no longer serve as their back channel for advancing (without enacting) socially progressive laws. Remedying every perceived social injustice or inequality won't be quite as easy (it is, after all, easier to get five votes on the Supreme Court than thousands of votes across fifty state legislatures), but their hard work will be rewarded. Their victories will be duly-enacted laws that bear a surer stamp of legitimacy than the Supreme Court could ever bestow.
Democracy will be the better for it as well. The undemocratic character of the Supreme Court only fits within a republic so long as the Court confines itself to the narrow task of legal interpretation. Alexander Hamilton wrote that the judiciary should be "beyond comparison the weakest" of the three branches of government. The Court cannot get into the business of lawmaking without also intruding on the voters' ability to decide controversies by more democratic means.
Since the mid-twentieth century, the Supreme Court has been committing the cardinal sin of legislating from the bench. Decisions on abortion and so-called "fundamental rights," while praised by progressives, actually restrained Americans from bringing their arguments to democratic forums. As Justice Scalia dissented in Obergefell (the decision that forced states to recognize same-sex marriages):
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.The Supreme Court has allowed progressives to get away with changing laws without doing the hard work of changing minds. Social conservatives would be far more willing to accept defeat if defeat came in the arena of state legislatures and state-wide referendums. When defeat comes at the hands of five "mainstream" Ivy League law graduates, there is bound to be a backlash.
The 2016 presidential election may have been that backlash. In some ways, the generalized anger that voters felt for being the victims of elitism was imagined. In others it was not. Judicial activism is the most egregious form of elitism that Americans are forced to tolerate. Former Justice Brennan probably best encapsulated the arrogance that had crept into the Supreme Court when he used to tell his clerks that "with five votes, you can do anything around here."
He was right, in a way, wrong in another. With five votes, "mainstream" justices can impose upon Americans an edict that is wholly undemocratic and only "mainstream" in the opinion of five robed intellectuals. But they can't make Americans accept such an edict as their own. Americans are right to revolt against the presumptuousness of Justice Brennan when it has deprived them of their right and ability to vote on issues that they passionately care about.
The Supreme Court has a long way to go to toward rectifying the damage done by judicial activism. Neil Gorsuch's appointment will be a good step in the right direction.
