Aside from the misnomer of the title, which is implied by the thrust of a piece in Sunday’s Wall Street Journal centered on Brett Kavanaugh’s confirmation and the hoo-raw surrounding that, Chief Justice John Roberts has a problem with the perception of the Supreme Court—according to Brent Kendall and Jess Bravin, the authors of the piece.
“We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process,” CJ Roberts…2016.
The Court can’t worry about perceptions, though. It can—should—only rule on what the Constitution or law actually says.
“Every single one of us has an obligation to think about what it is that provides the court with its legitimacy, to think about how we can be not so politically divided as some of the other political institutions in the nation,” Justice Elena Kagan said[.]
No. What provides the court with its legitimacy is its rulings based on the text of the Constitution or the law. A Justice’s empathy, or the particular wisdom of Latinas, or the concept that a judge should take account of…the climate of an era, have no place on the bench. Nor does an automatic reach for the middle.
The handling of any of those things—and they are important (as are the social climate generally; the wisdom of non-Latinas, also; empathy)—can only be done politically, not judicially.