Will the Supreme Court Just Disappear?

By
The Justices of the US Supreme Court sit
The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Photo: TIM SLOAN/2010 AFP

At about 4:30 p.m. on Saturday, February 13, the San Antonio Express-News reported that Supreme Court Justice Antonin Scalia had died. Within minutes — before the rest of the country even knew for certain whether the report was correct — the gears of conservative activism had begun to turn. “If Scalia has actually passed away,” tweeted Sean Davis, a former Republican staffer and co-founder of the conservative publication The Federalist, at 5:52, “the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president.” At 5:53, conservative activist Phil Kerpen tweeted, “Senate must keep vacant past election.” At 5:56, Conn Carroll, the communications director for Republican senator Mike Lee, was already certain this position would prevail, writing, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” By 6:20, less than two hours after the first reports of Scalia’s death, Senate Majority Leader Mitch McConnell had issued an official statement declaring, “This vacancy should not be filled until we have a new president.”

The world changes fast these days, but it doesn’t change that fast. In reality, the old order — the only one we’ve known, in which custom dictates that presidents have a right to fill Supreme Court vacancies with a justice who has at least somewhat friendly views — had already disappeared. Scalia’s death revealed the tectonic shifts that have taken place beneath our feet. It was the demise not only of a towering justice, or even of his slender majority, but of the institution’s ancient and inviolable standing in political life.

Though the Republican presidential candidates who gathered to debate that evening defended the McConnell position with impressive-sounding specifics, those specifics, characteristically, turned out to be wrong. Obama is not a “lame-duck president,” as Marco Rubio had it. (The country hasn’t yet chosen a successor.) There haven’t been “80 years of precedent of not confirming Supreme Court justices in an election year,” as Ted Cruz claimed. (The Senate confirmed Anthony Kennedy in 1988.) Donald Trump, also characteristically, did not even bother with the pretense of moral justification for denying any Obama pick: “It’s called delay, delay, delay,” he said, once again discomfiting professional Republicans by saying what their voters are actually thinking.

The Constitution’s instructions that the Senate “advise and consent” on nominees to the courts and the executive branch has meant different things at different times. Sometimes, the Senate has given the president wide latitude to appoint justices of a similar bent. As McConnell wrote in a 1970 law-review article, “The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform.” Other times, the Senate has withheld its consent from nominees deemed too extreme — though no party had yet proposed or adopted blanket opposition to any nominee from the opposing party, until now.

But while the Republican blockade may lack any ­precedent, it, too, is probably well within the law. This is the problem. Americans like to imagine our form of government as a perfectly designed system of checks and balances that prevents any one branch from abusing its power. In fact, as the late Spanish political scientist Juan Linz pointed out a quarter-century ago, presidential systems nearly always collapse. Linz attributed America’s unusual ability to make its presidential system operate without violent coups to its weak, ideologically overlapping parties. But that signal observation, which was true when Linz made it, has grown less true over time, as the Democrats have moved somewhat leftward and the Republican Party has lurched far to the right.

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.

Though Obama’s public (and perhaps private) position is that he will persuade the Senate to confirm someone with an “outstanding legal mind,” this is highly unlikely. A handful of purple-state Republican senators have made conciliatory noises, but it would require 14 Republicans to join with all 46 Democrats to overcome a filibuster of an Obama Court nominee. Far more revealing was a statement from Paul Ryan, who, as Speaker of the House, lacks any formal role in confirming judicial nominations but remains his party’s most influential strategist and theoretician. The Court, he wrote, “is not an extension of the White House. Congress, as an equal branch, has every right not to confirm someone.” Here, Ryan is treating a Supreme Court nomination as tantamount to a piece of legislation: The president is entitled no deference at all. Mere respect for the presidency isn’t going to make a Senate controlled by the opposing party confirm a Supreme Court justice any more than it’s going to make it pass a health-care bill. The era of parties letting the other side win — on anything — is over. The Ryan Rule is going to prevail.

If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations. On some of the most contentious issues, there would be, effectively, no Supreme Court at all.

If Republicans win the White House and retain the Senate, Democrats would regard Scalia’s vacated seat as rightfully theirs and oppose any nomination. This will cause Republicans to abolish the filibuster altogether; then they will fill the seat, solidifying their control over all three branches of government.

A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly? And given that the Court can affect the outcome of elections directly (like it did in Bush v. Gore) or indirectly (by ruling on the legality of partisan redistricting schemes, laws designed to inhibit voting by marginal constituencies, campaign-finance regulations, or labor’s ability to organize politically), with every election, the stakes will rise and rise.

The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.

*This article appears in the February 22, 2016 issue of New York Magazine.