Quote of the Day (Judge Learned Hand, on Courts, Partisanship, and the ‘Spirit of Moderation’)

“This much I think I do know: that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens—real and not the factitious product of propaganda—which recognizes their common fate and their common aspirations—in a word, which has faith in the sacredness of the individual."—American Judge Learned Hand (1872-1961), “The Contribution of an Independent Judiciary to Civilization” (1942), reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (1952)

Judge Learned Hand, a federal district and appellate judge for more than fifty years, wrote this from a lifetime of experience, but especially with the 1930s in mind, when the Supreme Court’s conservative majority ruled against one New Deal piece of legislation after another, provoking Franklin Roosevelt’s furious “court-packing” attempt in 1937.

It is certainly true, as both Republicans and Democrats have said at one time or another, that “elections have consequences.” But we now face the greatest threat to the politicization of the courts—and a threat to their independence—since the New Deal.

Of the three branches of the federal government, the Founding Fathers devoted the least attention to the judiciary in the Constitution. It has evolved in ways the framers could never have conceived—notably, in the amount of time that justices, enjoying longer life spans and (as Stuart Taylor Jr. and Benjamin Wittes argued in a 2006 Atlantic Monthly article) law clerks who save them the grind of drafting opinions, now serve on the Supreme Court.

For at least three decades, Senate confirmation hearings have been partisan battles. Until the last couple of years, however, the slenderest sense of restraint—the mutual courtesy among Senators, Presidents’ political antenna for recording and responding appropriately to disturbances in both Capitol Hill and the electorate—has existed.

In a media and political environment riven by the propaganda feared by Hand, that fig leaf has now been swept away. Democrats left themselves open to charges of smearing a nominee by not raising accusations of sexual assault against Brett Kavanaugh until late in the confirmation process.

Worse, Mitch McConnell has successfully rushed the nomination of Amy Coney Barrett to the Supreme Court, in brazen violation of his own rationale four years before for blocking the nomination of Merrick Garland: i.e., that the Senate should not fill a court vacancy in an election year before a new President is inaugurated.

With his smashmouth maneuvering and bizarre sense of priorities (lightning speed on the confirmation, dawdling on COVID-19 relief), the Senate Majority Leader has shown a mastery of parliamentary procedure but a disregard for organizational civility—making him an ideal legislative henchman for a President similarly disinclined towards respecting norms.

McConnell may have placated a party base desiring a dominant right-wing majority on the Supreme Court for decades, but it may be a Pyrrhic victory. Even as Barrett starts her service, he has laid on the back of this respected jurist misgivings about her allegiance to Trump that will cling to her as long as the President stays in office, and apprehension about her background and partisanship that will remain for as long as she remains a justice.

More important, the hypocrisy of McConnell and President Trump has been rank enough to precipitate a grave upping of the ante. Joe Biden now faces enormous pressure from his party base to undo the damage caused by McConnell’s shameless maneuvering by resorting to FDR’s proposal of increasing the court’s size. Even if the Democratic Presidential nominee decides not to seize this expedient, he will have to figure how to proceed if elected in dealing with a court heavily tilted against any of his initiatives.

With both the legislative and executive branches determined to, as Judge Hand put it, “press a partisan advantage to its bitter end,” it may be left to the judiciary to behave responsibly.

In the past, Chief Justices such as John Marshall and Charles Evans Hughes realized exactly how far they could go without endangering the Supreme Court’s reputation for impartiality. There are occasional, flickering signs that John Roberts wishes to operate in the same way.

But these are thin reeds for current observers of the court to grasp. Despite the longtime belief that the Constitution exhibited a farsighted skepticism about imperfect legislators, Presidents and judges in the new nation, the Barrett imbroglio shows that the Founding Fathers may in fact have been too trusting in this group’s ability to rise above petty partisan advantage. What hope for the genius of the system to prevail when its main actors lack wisdom, courage, and these days, even Hand’s understanding and respect for the other side?