Why Supreme Court Nominations Matter

Scholars of the world's judiciary know the U.S. Supreme Court has more power than any other court in the world. The reason is that the U.S. Constitution, a very old and short document, is replete with generalities that must constantly be interpreted. The nation decided at the beginning of the 19th century that the Court should do the interpreting. In doing so, the Court sets many of the nation's policies.

Perhaps the best-known example stems from the provision that no one shall be deprived of "equal protection of the laws." At various times in our history, the Court has interpreted it to mean that separate schools for whites and African Americans were constitutional (Plessy v. Ferguson, 1896), that segregated schools are unconstitutional (Brown v. Board of Education, 1954), that most affirmative action is unconstitutional (Richmond v. Croson, 1989), that some affirmative action is constitutional (Grutter v. Bollinger, 2004), that it was legal to deprive women of the right to vote (Minor v. Happersett, 1874), that it is illegal to keep women out of publicly funded colleges (U.S. v. Virginia, 1996), that there is no federal right to education (San Antonio v. Rodriguez, 1973), and that immigrant children have a right to a public education (Plyler v. Doe, 1982).

None of these policy decisions were made by Congress or the President. All were made by the Supreme Court. That's real political power, and that's why the appointment and confirmation process for Supreme Court justices has become so contentious. There are only nine justices, and many of the Court's decisions come down to a 5-4 or 6-3 vote. Change one or two justices, and you might change the policies of the United States.

The First Amendment says the government must not abridge our speech or our right to practice our religions. Does that mean whistle-blowers in public agencies have a right to speak out without fear of retribution, or that a religious group has a right to import forbidden drugs for ceremonial use? Ask the justices. The word "privacy" does not appear in the Constitution, but the justices have said it is implied. Does that mean late-term abortions cannot be prohibited or that a minor ever has a right to an abortion without notifying her parents? Ask the justices.

These examples come from cases the justices have on their docket this year. When the Court renders its decisions, it will be reading, and also making, the law. The glory of the Constitution may be that its vagueness enables its shape to change as societal needs change, without having to go through the arduous constitutional amendment process. We should be aware, however, that the vagueness also makes the Supreme Court the top policymaker in many areas of life that matter most to Americans.