The Disinterested Court We Seek

By Kevin D. Williamson

Thursday, October 15, 2020

 

Sometimes, the gods hand you a gift.

 

“We need far more diversity on the bench, in the Senate and in political reporting,” writes Jennifer Rubin of the Washington Post. “None of them seem to grasp how bizarre it is to have someone so out of touch with contemporary American life and so disinterested [sic] in educating herself.”

 

That Jennifer Rubin apparently does not know what the word “disinterested” means is if not surprising then at least poetic. Disinterestedness is really what our current fight over Supreme Court justices is all about.

 

(But, oh, to be so blessed as to be “out of touch with contemporary American life”!)

 

Disinterest is not a lack of interest or of curiosity — disinterest is impartiality. More precisely, a disinterested party is one acting without regard to personal advantage or benefit, without any personal feeling or investment in the outcome of a dispute. We read about “disinterested justice” in sources as different from each other as Schopenhauer and Ruth Bader Ginsburg. Felix Frankfurter wrote of the “capacity of disinterested judgment” and its necessity for a judge. Somehow, this seems to have escaped the notice of Jennifer Rubin, who holds a law degree and had a Hollywood legal practice for 20 years. No business like show business, I suppose.

 

Rubin and those who see the world in the same way reject the notion of disinterested judges, disinterested law, and disinterested justice. Partly that is old-fashioned ochlocracy, partly that is the influence of academics ensorcelled by “critical legal theory.” In place of disinterestedness, the Left would have interestedness and interest-group politics — racial, sexual, economic, partisan. In place of a justice of legal procedure and the ideal, imperfectly realized, of universal equality under the law, the Left would have a jurisprudence of politically mandated outcomes. This is, of course, finally incompatible with the rule of law, under which the law itself must prevail irrespective of extralegal concerns.

 

Political account-keeping is precisely what President Barack Obama meant when he spoke about the role of “empathy” in his selection of judges. In a famous 2007 speech to the butchers’ guild, Barack Obama called for installing judges with “the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” Those are precisely the things the law — “no respecter of persons” — is expected to take no note of. If you are driving 67 MPH in a 55-MPH zone, it does not matter as a legal question whether you are black, poor, a single mother, elderly, or disabled. President Obama rejected that disinterestedness and instead chose justices such as Sonia Sotomayor, who conceptualized her role in explicitly ethnic terms — “a wise Latina,” who has conducted her career on the Supreme Court exactly as one would have expected. We need not question President Obama’s sincerity to question his wisdom.

 

Much of the Democratic case against Amy Coney Barrett has consisted in reciting litanies of sympathetic victims who might be hurt or disadvantaged by a decision that Barrett might make. “Here’s Nancy, and she has earlobe cancer, and if Obamacare goes down, she’ll have to pay $80,000 a month for earlobe pills, and she won’t have any money left over to buy gumdrops for her grandchildren. Why do you hate Nancy’s grandchildren?”

 

(Not a direct quotation.)

 

But the question of whether the so-called Affordable Care Act is constitutional or unconstitutional is a legal question in which the plight of sympathetic victims properly plays no role. Because Judge Barrett is a disciplined woman, she did not stand up in her chair and yell, “Well, maybe you bunch should clear the goddamned rocks out of your thick skulls and write a health-insurance law that makes some sense and doesn’t have 47 different constitutional problems, you pathetic cretins!” But the fact that Congress wrote a bad law badly is not the Supreme Court’s fault, and the anxiety, hurt, and chaos caused by that law’s unraveling is not the Supreme Court’s fault, either. Nor should the Supreme Court consider itself constrained by such considerations — its sole criterion must be the legal one. Democrats had control of the White House and both houses of Congress when the ACA was written, so they could have written any law they wanted to. This is the one they wrote, and the mess they made is on them.

 

(Incidentally and for what it is worth, I know of very few conservative legal analysts who expect the entire ACA to be thrown out in the upcoming challenge or who think that the law should be nullified along those lines.)

 

Judge Barrett will be, one hopes, even more disinterested than Jennifer Rubin would fear, if she knew what the word disinterested means. I do wonder whether the woman raising seven children while teaching in South Bend really is the one who is “out of touch with contemporary American life.” Correct me if I am wrong here, but I believe Indiana remains within the Union.