Indiana’s United States Senate delegation is poised to provide unanimous support to United States Supreme Court nominee Neil Gorsuch, as Democrat Joe Donnelly has announced his support for the nominee. Non-political junkies may view this as a minor matter, but the confirmation of Gorsuch to the United States Supreme Court may be the most lasting act of President Donald Trump’s administration. Long after presidents recede into history, their Supreme Court appointments continue to shape the present and future of the nation. Justice Clarence Thomas was appointed by President George H.W. Bush in 1991, and he continues to influence the Court and the direction of the nation 26 years later and is likely to continue for years to come. Because of their long service and the significance of the decisions they make, United States Supreme Court justices are among the most powerful and significant public servants in the nation. For that reason, Gorsuch’s appointment is of the highest importance. If confirmed, he is likely to influence the nation and its direction for decades.
Some oppose the judge’s confirmation because his opinions tend to support corporations over common people, and others because they dislike his judicial philosophy. Supporters, on the other hand, claim he is qualified, focuses on the law rather than results, and protects religious freedoms. Who is right? Under a traditional approach, both camps are correct. The problem is with the traditional approach. In a just society where individual effort determined people’s accomplishments — rather than who their parents were or their ZIP code or their gender or their racial identity — we could choose Supreme Court justices as if what mattered was whether they went to an elite university and law school and worked for prominent judges and law firms. We do not live in that society. Laws do not affect everyone equally, and they never have. United States Supreme Court justices who deny this historical and present reality are far from neutral; they represent the legacy of centuries of legalized theft of land, enslavement of lives and slaughter of innocents sanctioned and approved by “qualified” Supreme Court justices. Their commitment to “law” means a commitment to group-based dominance and privilege.
As a branch of government, the United States Supreme Court is immensely powerful. The use of that power, historically and today, has been to further social dominance in our society. Social dominance is the disproportionate share of power, resources and opportunities that some groups in our society benefit from while others endure a disproportionate share of the unemployment, poverty and incarceration. From the founding of the nation, this has been the reality. Black women and men, Native Tribes and Latinos were routinely denied life, liberty and property rights considered so central to the individual rights regime upon which the nation was founded. The Supreme Court presided over and protected white racial dominance, male dominance across all races and the dominance of European-descended conquerors over Native Tribes and Latinos for centuries. Today, the Court has never acknowledged or disavowed the countless “neutral” legal opinions that masked the protection of white supremacy and male dominance. These unjust decisions to keep women and men enslaved, deny Blacks the right to testify, allow discrimination in employment, housing, education and voting were written and supported by “qualified” judges. But qualified for what? Qualified to maintain the status quo.
The critical characteristic of a United States Supreme Court justice should be the ability to render justice. That means something more than applying laws that may, themselves, be intended to deny justice. It means understanding the principles of freedom, justice and equality and seeing their historical and contemporary impediments. These guiding principles enable a judge to show good judgment, protect the powerless and foster the good. They enable a judge to balance competing interests and to show wisdom. Men and women who do not understand or appreciate racism, sexism, classism, ableism, religious discrimination and discrimination based on gender expression and sexual identity lack the qualifications to be United States Supreme Court justices, because their ignorance or obstinance hides justice from them. Is Judge Gorsuch any different? It is not likely. Unfortunately, that is the question that too few have asked, including Senator Donnelly, I suspect.
Carlton Waterhouse is a professor of law and dean’s fellow at the Indiana University Robert H. McKinney School of Law.
