John Roberts could probably walk through any Home Depot in the nation unnoticed. Barack Obama or Hillary Clinton—chaos in the bathroom-vanity aisle. John McCain—autographs in power tools. But the chief justice of the U.S. Supreme Court could likely shop for a Phillips screwdriver and most people wouldn't look twice, even though he may be one of the most powerful people in America. Or at least one of nine.
Congress chips away at legislation, then sends some lowest-common-denominator version to the White House, to be signed or vetoed or later redesigned by the next president to take up temporary residence in Washington. But the work of the high court has had vast systemic influence over the lives of all Americans, an effect that lasts through generations. In the tripartite tussle, it's no contest: SCOTUS rules.
The display of the Ten Commandments in public buildings. The scope of eminent domain. The reading of rights to defendants. The ability of taxpayers to litigate against faith-based government-funded programs. School prayer. Medical marijuana. Campaign ads. And that's before you get to desegregation, abortion, affirmative action and capital punishment. If you try to register to vote in Indiana and are turned away because you don't have a government-issued photo ID, that's because the Supremes just ruled, 6-3, that that's OK.
So why are many Americans insensible to a body that has so much power over their lives? (Quick: can you name the nine? Yeah, that's what I thought.) Well, in our three-pronged system the justices are the only people we don't elect. But they are chosen by the person we do. So it makes sense that the presidential candidates be repeatedly asked specific and searching questions about what sort of justices they favor, especially since on Inauguration Day two thirds of the court will be 70 or older.
During the last general election, there were roughly four and a half hours of televised debate, and about five minutes of that were taken up with the Supreme Court. The usual code words and phrases applied. Strict constructionist = conservative; personal privacy = liberal. To listen to the questions, you would have thought the only issue before the court was abortion. This draws battle lines, but doesn't enlarge public understanding.
History tells us that virtually all presidents get blindsided by their court choices, that Richard Nixon thought Harry Blackmun would be a reliable conservative, not the guy who wrote Roe v. Wade, that Ike rued the expansionist Warren Court until the day he died. But, more important, history tells us that the decisions that made people angriest at the time are often the ones that seem most obviously just. Brown v. Board of Education, the landmark desegregation case, was excoriated. Limits on unreasonable searches, protection from self-incrimination—they were trashed until they became accepted as bedrock American principles. On every cop show a character shouts, "You can't come in here without a warrant!" and viewers nod as though it were Jeffersonian edict.
Today it's impossible to tell where prospective justices stand on some of these issues. The modern confirmation hearing has become kabuki theater, in which members of the Senate ask questions to which they already know they will not get answers. The nadir of this advise-and-consent travesty came when Clarence Thomas insisted he had never given any thought to whether Roe, the most contentious decision of the 20th century and the one which has been the litmus test for the far right for 35 years, had been correctly decided.
Republican presidents have made all but two of the appointments to the Supreme Court in the last 40 years. But the result has not yet been the ultraconservative body dreamed of by the right wing, although there is no doubt that since Justice Sandra Day O'Connor was replaced by Samuel Alito, and Justice Roberts took over as chief, there has been a move in that direction. Men and women change in the job. Their view of the Constitution, a document whose interpretation is more art than science, often expands. Perhaps they can see the bigger picture from that neoclassical temple in Washington.
Maybe that's why we don't pay enough attention to the court: because it exemplifies the long view, and Americans are of the moment. So, too, are politicians. Their court appointments are too often an attempt to mollify supporters. But all people live with the results, whether the results are the expansion of rights and liberties or their diminution.
The next president will probably have the opportunity to appoint several justices, and therefore voters have the right to know precisely how the candidates will think about that monumental task. But no more pandering shorthand: cross-examination is in order. Which decisions in recent history have they admired, and why? If they favor strict constructionists, how can they support Brown, which was seen as judicial overreaching? Leaving the question of legal abortion aside, should Americans expect a constitutional right to privacy? Are there any circumstances under which execution is not cruel and unusual? The time for questions is not when the president is standing at the podium with a justice whose term may last for decades. It's when we're trying to decide who gets to stand at the podium and therefore who gets to sit on the court.