Represent!

Representation, rule of law, constraint of power, popular sovereignty. Of these (and other) values that underlie a democracy, representation was possibly the lowest priority at the American founding. Representation of people as Southerners, Protestants, people of German descent, etc. bore a nasty resemblance to the factionalism that the founders, witnesses to the fresh wounds of 18th century England, preferred to avoid. Representation of the states as states (i.e. the Senate and the Electoral College) came essentially as concessions to induce Southern and smaller states to sign on. Congress was designed to represent people geographically, but checks on the legislature were built into the design of the presidency, an office never intended to be representative in any way. As the legal culture of the United States developed, the power of Congress also came to be checked by the Supreme Court.

Despite the scorn shown to representation by the design of our institutions, the idea of representing people - particularly as members of groups with distinct experiences - gained in popularity in American politics, and in recent decades emphasis on diversity in governmental appointments has become a commonplace expectation.

Can it be fair, given the role of the Supreme Court to interpret law and resolve disputes about the meaning and application of the Constitution, for Pres. Obama to emphasize demographic characteristics in his selection of a nominee? Can I really have just written a sentence that long?

Yes, and yes.

There will no doubt be a great deal of attention to the question of judicial philosophy in the coming months. The crucial matter for determination is whether any nominee to the Court considers Constitutional questions in terms of original intent and meaning (per Justice Scalia) of the Constitution, or with contemporary consequences of a particular interpretation. This is an important question, an interesting question, and, perhaps regrettably, a politically loaded question. However, because one approach emphasizes policy effects in the decision-making and the other approach does not, this debate obscures the fact that however justices arrive at their decisions, the product of their philosophical ruminations will always have policy consequences. Whether justices consider politics, whether they consider policy, whether they contemplate consequences, their decisions have political impact. The Court is a political actor no matter what kinds of ideas its occupants have about the relationship between law and politics.

This is what gets us back to representation. It is more important that the Court show some kind of descriptive representation because it will interact with the elected branches and be involved in the kinds of policies that affect citizens lives. But unlike Congress or even the president, the lifetime appointment of justices means that there is no other mechanism of representation. The Court can strike down the actions of the elected branches, and (because of that) indirectly influence them. But justices are subjected to no election and no later accountability processes. This allows for balance between democracy and rule of law, which sometimes coincide, but occasionally conflict. The assurance of female, Latino, African-American, LGBT, etc. voices on the Court may constitute the main connection with the citizens affected by its decisions. All mechanisms of representation are imperfect, descriptive representation particularly so. It reduces people to groups and relies on arbitrary decisions about which groups are relevant. But we accept a mixture of imperfect approaches in order to enjoy a government that balances among different and conflicting values essential to democracy.