05/10/2010 05:26 pm ET Updated May 25, 2011

The Royal Court: Elena Kagan in Perspective

As public debate begins over Solicitor General Elena Kagan's nomination to the Supreme Court, pundits have emerged full-force for the fifth time in a decade to exploit a general feeling of helplessness in the face of an impending lifetime appointment. Yet whether or not Kagan takes the seat of Justice Stevens is much less concerning than the prevailing media sentiment that frames the lengthy terms of Justices as an all-or-nothing issue.

This profitable, well-timed hysteria dangerously empowers the Court beyond its traditional boundaries as one of three branches of government and convinces citizens that the appointment of Justices is a terminal situation. It suggests that the confirmation of a Justice signals the cessation of our ability to enforce the Court's adherence to basic Constitutional principles as we, the people, define them. The result is a vision of the Court as a source of tyranny, rather than a pliable group of nine citizens, who can be swayed by public opinion and even removed for abuses of power.

There are countless examples of the horrors the Court can wreak upon the American public. Just as much as the other branches of government, the Court has at times upheld segregation, abdicated basic moral precepts, and speciously brokered the transfer of powers. But under pressure, they have at times changed course with grace, occasionally making bold leaps forward.

A growing chorus of forces aligned against segregation in the years following the end of World War II led the Court to overturn segregation in Brown v. The Board of Education. Increasing public praise for Eugene V. Debs and his Socialist Party following his arrest for sedition in 1918 ultimately led politicians to commute his sentence, which in turn led a handful of the same judges who initially upheld his conviction to hand down some of the finest rulings on free speech in American history.

The tumultuous past of the Supreme Court should suggest that its decisions and members are subject to the same pressures as the rest of our nation. The bench has been seated, by and large, by mediocre legal minds, cronies of corporate firms, and in some cases, Justices with such questionable regard for our Constitution that their rulings seem akin to the proclamations of P.T. Barnum. But criticisms of the Court and the process of nominating new Justices cannot be used as an excuse for walking away from our responsibility to engage in the kinds of civil discourse that change the legal landscape of our nation for the better.

Present representations of the Court suggest that unless there is a vacancy we should resign ourselves to being an anonymous mob, disregarded in perpetuity by a cloistered flock of black-robed Constitutional priests. In the face of this chatter we must continually affirm the Court's likeness to us, for ourselves, for them, and for the safety of our basic rights and liberties. The punditry of helplessness and the false panic that nominations like Kagan's encourage need to be cast aside, replaced by the notion that we can shape the decisions of the Court more than we are made to believe. Justices are not royalty and the actions of citizens can make a lifetime appointment as rigorous for a judge as turning a blind eye can make it easy.