The Supreme Court meltdown
We should be fighting for the health of our institutions, rather than control over them.
The conduct of civilization is not a game of football. It’s not a talk show shouting match. Or, at least, we shouldn’t let it become like those things. We should prioritize protecting the sanctity of processes and institutions over achieving particular political outcomes. When our feelings about political disputes become heated, sometimes we lose sight of the big picture. We can forget that winning isn’t everything. We sacrifice goodwill and trust when we overexert ourselves in the struggle for political supremacy. As our spirit of cooperation declines, we’re losing faith in our government, and our fellow citizens. We’re becoming unable to compromise and enact useful legislation. People are becoming impatient with the strictures of democratic government. But uncivil and unruly tactics impede progress. The harder we push, the more mired we become.
The appointment of a successor to Supreme Court justice Ruth Bader Ginsburg has become our latest boxing match. The Democrats have argued that the Republican Senate majority and President should not exercise their power to replace Justice Ginsburg until after the presidential election.
It was Justice Ginsburg’s dying wish, her granddaughter has said, that she wouldn’t be replaced until the next president was installed. Her wish notwithstanding, Senate majority leader McConnell promised that a vote would be called if President Trump named an appointee. The President did, this past weekend, nominate Amy Barrett. It’s still possible that the Senate might fail to confirm. Some Republican senators have expressed misgivings. Senator Lisa Murkowski of Alaska, for instance, has plainly stated that she “would not vote to confirm a Supreme Court nominee.”
The Democrats are still deeply unhappy about what happened to their last appointment to the Court. In 2016, when President Obama appointed Merrick Garland to replace Justice Scalia, the Republican controlled Senate refused to call a vote. Democrats described the move as theft. Journalists have accused McConnell and the Republicans of rank hypocrisy for “giving the American people a voice” in that case, while moving forward with the Ginsburg replacement now, much closer to an election. How extreme are the tactics the Republican’s have employed?
In the Garland affair, McConnell argued “the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.” The proviso “was divided” plays an important role in the current situation. In 2016, control of the Senate and the executive branch were divided between the Republicans and the Democrats. Being divided, McConnell’s conditions applied. Today, they’re in the hands of a single party. So, McConnell’s conditions allow the Republicans to fill the vacancy. It’s clear that, if the Democrats had controlled the senate in 2016, Garland would have been confirmed. So, both parties appear to find it acceptable to confirm a candidate during an election year. But what then of the hypocrisy of the Republicans stopping the Garland confirmation?
McConnell’s principle seems to justify the Republicans’ action in both scenarios. But is that principle itself offensive to accepted procedure and Senate decorum? A scholar at the Brookings Institute has described McConnell’s view as “fabricated history”. His counterexample to McConnell’s doctrine is the confirmation by a Democratic Senate of Reagan appointee Anthony Kennedy during the 1988 presidential election. While Kennedy was confirmed during an election year, he was appointed in September of the previous year. The vacancy had arisen even earlier. The Kennedy appointment followed a Senate rejection of Robert Bork who was first appointed to fill the seat vacated by Justice Lewis Powell when he retired in June of 1987, well before the election year. Since McConnell specified vacancies “arising during an election year”, Kennedy’s appointment isn’t a valid counterexample.
McConnell claims that the Republicans’ actions with regard to the Garland appointment accord with a speech made in the senate in 1992 by, then Senator, Joe Biden. McConnell refers to the position that the Republicans have staked out as “the Biden rule”. It’s true that Biden did indicate that presidents should not nominate candidates during election years, and that, if they did, the Senate should probably refuse to consider them. I quote at length because the whole discussion is interesting and pertinent.
[I]t is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest, Presidential campaigns we will have seen in modern times.
I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
Neither in this passage, nor anywhere else in this speech that I could see, does Biden specifically state the proviso that this logic only applies under a divided government. He does cite historical precedent in a similar way to McConnell. Biden observes that, on six occasions in which a vacancy on the Court arose in an election year “never—not once—has the Senate confirmed a nominee for these vacancies before the November election.”
By my reading then, the actual Biden rule seems to be: vacancies on the Supreme Court arising during an election year should not be filled until after the election. This differs from McConnell’s rule in that it does not require a divided government in order to apply.
McConnell is right to say that Biden’s speech lends support to the Republican inaction on the Garland appointment. Per Biden’s words above, President Obama should not have appointed a replacement justice in 2016. And, when he did do so, it was appropriate for the Republican led judiciary committee to not call a vote.
There is an element of hypocrisy in Biden’s failure, at that time, to reassert his position from 1992. It calls into question the genuineness of his claim that the earlier position was not intended to “save the seat” for a possible Democratic President. Pragmatically however, it seems clear that Biden trying to stop the show in 2016—“woah, woah, hold on, there’s this thing I said in a speech twenty-five years ago that suggests we shouldn’t do this. Don’t make me look like a hypocrite here”—would have been a non-starter.
The outrage that Democrats have expressed over the Garland affair is probably overblown, given that, had a similar situation arisen in 1992, Biden, who was then the chair of the Senate judiciary committee, had as much as declared his intention to do exactly what the Republicans did in 2016.
Of course, fidelity to Biden’s speech, which did not make an explicit distinction between divided and consolidated governments, would oblige the Republicans to defer the vote on the current appointee Judge Barrett. By McConnell’s somewhat different rule, however, they’re free to proceed. In this sense, strictly speaking, McConnell’s position has been consistent and not hypocritical. Though it’s not true that Biden’s speech entirely accords with that position.
I think the Biden rule would be a fine default. The exercise of voluntary restraint on the part of our elected leaders, in the interest of civility, is admirable and desirable. Biden’s 1992 speech begins with a lengthy discourse on the increasing divisiveness of American politics. He talks about how Supreme Court confirmations had already become extremely polarized.
[T]he confirmation process has thus become a convenient scapegoat for ideological advocates of competing social visions—advocates who have not been able to persuade the generally moderate American public of the wisdom of either of their views when framed in the extreme. In effect, then, Mr. President, these advocates have joined in an ad hoc alliance, the extreme right and the extreme left, to undermine public confidence in a process aimed at moderation—hoping, perhaps, to foment a great social and cultural war in which one or the other will prevail.
And it’s for that reason that he ultimately argues we need to expect and tolerate more extensive use of partisan tools, like senatorial inaction around judicial nominations during an election year.
Biden speaks of “divided Government”, though not, as McConnell, about branches of government being divided, but about the perspectives of two groups of representatives, and of the American people, being divided. He laments the tenor of the discourse around all of the Reagan and Bush era confirmations, and expresses hope that avoiding confirmations during election years might help prevent further animosity. His speech is a patient lesson in the history of Supreme Court confirmations and an intriguing glimpse into a moment in the evolution of America’s political tensions. It’s unfortunate that many politicians and members of the press today mine documents like this for useful soundbites rather than deep insights and historical wisdom.
The Biden rule would be a fine default. Though I’m confident that the McConnell rule is what, in fact, presently holds. It holds because it’s the more pragmatic of the two positions. It assumes that both parties will use the tools available to them in the struggle to define the composition of the Supreme Court. That’s a sound assumption. As the American people become more divided and less trusting of one another, they demand similar stances from their political representatives. It’s not easy for me to imagine a President, or a Senate, of either party not doing what is in their power to confirm, or obstruct the confirmation of, a justice during an election year. We know that Biden was prepared to stop a confirmation in 1992, under a divided government. And we know that the Democrats in 2016 would have confirmed a candidate during an election year if they had controlled a united government. Those two facts seem to indicate that the McConnell rule accurately describes how the Democrats would behave if they were able. And, of course, we know the Republicans are onboard with it.
It’s conceivable that, in practice, the Democrats would have behaved differently. But I’m skeptical that, if we had a Democratic President and Senate, they would have awaited the outcome of the Biden Trump election before appointing and confirming a replacement for Justice Ginsburg’s seat. I can say with certainty that there would be a very vocal wing within the party who would demand that they make the replacement. They would bring to bear the exact arguments that we’re currently hearing about the fundamental importance of liberals on the Court to defend our civil rights and social protections. They would say that a President who refused to do everything in their power to put liberals on the bench was a traitor to the party and its values. I think that the particular Democrats who would advance those arguments most strenuously are the same ones who are quickest to decry the Republicans as hypocrites, liars, and cheats today. There would be a large enough number of people on the left who felt strongly enough about the importance of filling the vacancy, that a lot of Democrats in congress would feel compelled to push for it.
So I think it’s possible that the Democrats are overstating the overall badness of the Republican’s behavior. That behavior seems representative of the established policies of both parties. The indignation and contempt Democrats direct at the Republicans, if unjustified, unnecessarily stokes even greater discord and ill will. Exaggerating the iniquity of the Republicans’ conduct is a problem because that inflated iniquity becomes the standard for future moves. Radical Democratic elements have mobilized to call for court packing schemes, or the admission of additional states with the hope of adding Democratic senators.
I wouldn’t oppose modifications to the structure of the courts, or the addition of states to the union on principle. There might be perfectly upright reasons to do those things. But altering the number of justices for the first time in a hundred and fifty years is not to be taken lightly. To do so for the express purpose of tilting the political scales would set a dangerous precedent.
Overstating the inappropriateness of the Republican’s actions makes it seem like such moves would be nothing more than justifiable incremental escalations. But to judge the situation in that way would be a grave mistake. I see a vast distance between the two in terms of historical precedent, and downstream consequences. Once we begin using the legislature unabashedly to seize control of the judiciary, or future congresses, what plausible limits exist in this battle for power? Better to acknowledge that fate has handed a temporary judicial advantage to Court conservatives. But for the role of the dice, the situation might be reversed. Even supposing that the Democrats would, in practice, have behaved more magnanimously than the Republicans did, the degree of any Republican transgression does not justify the intensity of the response, nor the severity of the proposed countermeasures. I can’t ask you not to resent the Republicans for using their power in the ways that they have. But resent them within reason.
A 6-3 conservative majority on the Court is a bitter pill for many to swallow. If you’re one of them, I doubt anything I say will do much to mitigate your displeasure. And, regardless of our personal political preferences, we all have reason to be wary of a strong majority on the Supreme Court. If they wield their power with a lack of reserve and impartiality, it would further divide and destabilize the country. I’ll try to offer some hopeful remarks.
First, let me say that it makes me uncomfortable to refer, as I already have, to Supreme Court Justices as conservatives and liberals. In principle, the Justices should be interpreting law, not conducting politics. Their political views may influence their decisions on occasion, but all of them would agree that the Court serves a technical legal function and should strive to be apolitical. Journalists and presidential candidates often discuss the court as if the Justices were there to represent particular political ideals. This way of looking at the Court actively undermines its legitimacy as an arbitrator. It’s not a tiny, undemocratic, third house of the legislature. I don’t mean to give that impression by talking about liberals and conservatives on the Court. But, for convenience in describing Justices appointed by Presidents of different parties who may have systematic differences in judicial philosophy, I’ll continue doing it.
We have reason to hope that a conservative majority will behave with restraint. Court conservatives have long stood for a school of thought that regards the Constitution and the laws as contracts with fairly literal interpretations. They explicitly disavow what is sometimes called judicial activism: expansive interpretations of written law that allow justices to arrive at non-obvious conclusions that align with their moral preferences. If they’re true to their espoused principles, we might expect restraint from a conservative majority. Such restraint might help to cool political passions, allay the fears of the Democrats, and reduce the ferocity of the battles over the Court.
A Supreme Court hewing more closely to the text of the Constitution might jeopardize popular decisions like Roe v. Wade. I don’t relish the prospect of the political turmoil that might result from a major revision of past decisions on abortion. But we can hope that such changes may be few and small. There is a principle of jurisprudence, stare decisis, that says that courts should show deference to past decisions. Even if a court disagrees with the reasoning of a previous decision, stare decisis would incline the court to follow precedent unless conditions have substantially changed, or the prior decision is proving unworkable. It’s possible that the new conservative majority will apply its philosophy of restraint in a way that emphasizes such deference. They might resist attempts to overturn past precedents. Which would, over time, also help calm the public.
If a conservative court did completely overturn Roe, that wouldn’t amount to an abolition of abortion. 61% of Americans would prefer for abortion to be a legal option for women in most or all cases. State or federal legislation would quickly step in to protect abortion as an option for most or all American women. I understand that, if the resulting protection is incomplete, this would be small consolation for those concerned for the well-being of the millions of women whose access to abortions would be reduced. The reports of amateur abortions in pre-Roe America horrify me. The first order consequences of Roe are, to my mind, unequivocally good.
But there’s a countervailing good that we also need to consider, a trade off. Significant good could come from shifting the abortion debate, and other bones of political contention, from court venues to legislatures. In a 1992 lecture Judge Ginsburg—she would be appointed to the supreme court the following year—criticized the Roe decision:
Roe v. Wade [...] invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures "toward liberalization of abortion statutes."'
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No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court's delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
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Roe [...] halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.
The Court is a focus of fierce political struggle, at least in part, because of the extraordinary power past Courts staked claim to with some of their sweeping progressive decisions. I do wonder if some significant portion of the broader rise of polarization in America over the last several decades has been a product of the fight to control that power. These nine individuals have unparalleled abilities to revolutionize the lives of millions of Americans. I have no doubt that the temptation to use them to effect social justice, as one sees it, is terrible. But if doing so has the effect of creating an undemocratic imbalance of power in our federal system, the long term negative consequences of such uses of power might significantly outweigh the benefits.
The Justices’ desire to do good and the legitimacy of the Court as an institution are in tension. You can think of laws and the Constitution as contracts with the people. The Court is the referee in disputes over the meaning of those contracts. The conservative judicial philosophy of deference and restraint is sometimes called textualism. Textualism attempts to judge these contracts on the basis of what they meant to the people who drafted and signed them. The states, for instance, voted to join the union on the basis of their interpretation of the meaning of the Constitution. They signed a contract agreeing to hand over some powers to the federal government, while retaining those not specifically signed away. When, in some cases, the Supreme Court has, effectively, amended the Constitution with expansive rulings, it weakened trust in the sanctity of our public contracts. The states ended up being held to provisions they never signed up for. When the interpretation of the Constitution evolves too quickly, the rule of law suffers.
Concepts like textualism and rule of law are sometimes criticized for being too little concerned with outcomes. They can seem like dogmatic adherence to tradition and process at the cost of the present wellbeing of flesh and blood people. But I’m arguing their value precisely on the pragmatic basis of their consequences. The reason that justice needs to be impartial and rule based is not solely because that’s a morally correct posture. Justice must be fair and predictable because otherwise people will not submit themselves to it.
In many times and places people have relied on their own actions to find justice. But revenge and honor killings are never perceived as proportionate or just by the different parties involved. So every action leaves a debt to be filled by the other side. The result is cycles of violence that can last for generations. Courts and codes of law were important innovations in human history because they set themselves up as neutral arbiters. Their procedural rules and reputation for impartiality made them acceptable judges for both sides in a conflict. Their usefulness arises from their credibility. If their justice is fair and proportional, parties will relinquish their personal claims to justice in favor of a conclusive resolution by the court. Even if it’s not quite the solution they would have desired, it may still be far better than an unresolvable feud.
Senator Biden’s 1992 speech searched for ways to turn back the clock on the heated fights over control of Supreme Court seats. But perhaps the behavior of the legislature is not an important driver of court related political turmoil. The elements that appear to have made Court appointments more divisive were the Court’s growing power, and the public’s divided opinions about what to do with or about that power.
Judicial activism peaked many years ago. The liberal Court under Chief Justice Warren in the 50s and 60s wrote judgements in a very different way than the court does today. Warren is said to have asked lawyers arguing legal principles before the court “Yes, yes, yes, but—is it...right? Is it good?” It seems that the Justices themselves have since recognized the overreach of that era and the pernicious effect it has had on American politics. Justice Kagan has said that past judges engaged in a “wildly different form of interpretation than anything written by anybody on the Supreme Court now.” “We’re all textualists now” she says. Maybe the rest of the country just needs to catch up with the Court itself in perceiving its circumscribed role.
A conservative majority that conducted itself with restraint and deference might help the Court to fade into the background. That might take off some of the pressure we’ve been putting on it. That could be a very good thing. Perhaps America is, in part, suffering from a case of “judiciaritis”: a swelling of the judicial branch. Perhaps textualist conservative Justices, such as Judge Barrett, are the anti-inflammatory that can undo the reputation for near limitless power that the Warren Court established in the eyes of the American people.
Regardless of whether there’s truth in that hypothesis or not, and regardless of how we got here, we as citizens should exercise restraint. We should model civility and respect for norms and procedures. We should show deference to the institutions which safeguard our freedoms and which bind us together as a society. We should resist calls to change them for political gain. We should avoid overstating the evil of our political opponents.
Our fights over the Supreme Court, in part, represent our despair over the possibility of producing the kind of cooperation by which we could achieve our aims through legislative means. But legislation is the correct way for us to achieve our aims. Much more than Republican senators are cheaters, we the people are cheaters. We want an easy way out. We want to rig the game of democracy. We don’t want to work together to build solid majorities capable of achieving something lasting. Persuading our fellow citizens is hard. Treating them decently requires strength of character. We want to get our way without ceasing our petulance and rancor. But operating at that level will destroy us.
Justice Ginsburg may have wished that her seat would be filled by a Democratic president. But I know what would matter more to her would be to see the court she devoted so much of her life to honored, not torn apart, its reputation safeguarded, not tarnished, her legacy built upon, not turned to dust. Controlling the court will have no meaning if, in the process of gaining that control, we destroy our nation’s respect for its institutions. Justice Ginsburg had a close relationship with Justice Scalia, the arch-textualist. She said “[we are] one in our reverence for the Constitution, the U.S. judiciary, and the Court on which we serve.” We should all try to understand, and respect, and even enjoy the company of, those we disagree with. That’s the only road back to political sanity. Ginsburg was a consistent advocate for civility and for treating everyone with dignity. “[W]hat greater defeat could we suffer than to come to resemble the forces we oppose in their disrespect for human dignity?”, she once asked. I hope that spirit can start to take hold of more Americans in the days to come.
So I think there are several factors contributing to how liberals are viewing this court opening, including the obvious parallel to Merrick Garland's nomination, the ample examples of bad faith and violation of norms by congressional Republicans in the last 12 years, and pure outcome-based consideration (a 6-3 conservative court). I want to focus on that last one, which to me suggests that an expansion of the court makes a lot of sense. I will posit that despite the mitigating factors you mentioned, the composition of the court does matter. While justices do sometimes defect and there can be surprising decisions, more often than not politically charged cases are decided on predictable votes. The simple fact is Democrats have controlled the White House for 16 of the last 30 years, and yet find themselves outnumbered 2:1 on the Supreme Court. In other words, the composition of the court is not aligned with any democratic process. It is, as you said, a roll of the dice, with every opening on the court playing out as a high stakes no holds barred conflict. That doesn't seem ideal. If the court were expanded to 15 (preferably even with age or term limits), turnover would be more regular and the composition of the court would shift more fluidly. And given the higher frequency of vacancies and reduced stakes that implies, it would seem unlikely that either the public or the Senate could sustain the level of attention needed for the three ring circus nomination processes we have now. If you want to improve the legitimacy of the court, fairness needs to be a consideration.
I think there might be a false dichotomy presented here: given the choice between the essentially fungible Biden rule or McConnell rule, the Senate majority will simply pick the one that favors them more. I will assert these rules are not equally good, and furthermore that neither is the best possible rule for accomplishing the stated ends.
As noted, the Biden Rule - which should perhaps more accurately be termed the Thurmond Rule given its roots from 1968 - has stood as a semi-precedent for a considerable amount of time. The recent and seemingly arbitrary clause of "in a divided government" throws a new corollary on that precedent; it is the infield fly rule, the en passant move, the "except on every third Sunday" fine print, introduced at just such a time that the introducer sees maximum benefit.
But argument from tradition is hardly compelling, particularly in an age of norm-defying politics. One needs to dig deeper into the intention and spirit of the rule. Fundamentally, the McConnell rule appeals to the notion that the current will of the people should be expressed more loudly than a lame-duck president's final actions. In his most recent letter, McConnell appeals to the notion that not only are the Senate and President of the same party, but furthermore that the Senate majority increased in 2018. Let's take him at his word, and ask, "Does same-party representation in Senate and Presidency accurately reflect the will of the people in an election year? Does growth of that representation also reflect that will?"
Those who would argue yes would look no further than the midterm election as proof that the pulse of the nation had been accurately measured - if they didn't like the guy in charge, they wouldn't have kept his friends in the Senate, right? Unfortunately, the Senate has 6-year terms, which by definition means only a fraction of the people have a voice; not every state can have a Senator come due for election at every midterm.
Moreover, with only 1/3 of the Senate at stake in a given midterm, there can be immense statistical bias. The 2016 Senate saw 52 Republicans and 46 Democrats; however, in the 2018 election, 24 Democrats were fighting for their seats, while only 9 Republicans did so. Assuming a 33% turnover in both parties, one would naturally expect 8 Democratic seats to flip, but only 3 Republicans. That results in a net gain of 5 seats for Republicans, and a 57-41 split in the Senate. Now this bias will flip back in 2020, as a majority of Senate seats coming up for re-election are Republican (23-to-12), but that's further evidence that a single Senate election cannot accurately reflect the will of the people.
As Republican Senate leader for the past 14 years, McConnell is no stranger to the above calculations. It is not unreasonable to speculate that he is knowingly exploiting his letter's mathematical fallacy to cover his raw realpolitik - "justice is merely the will of the stronger" - with a thin veneer of virtue. At the risk of ad hominem, it certainly wouldn't be out of character for him.
If, on the other hand, we do take him at his word, there should be a better way to measure the pulse of the nation at midterm elections: an office that is re-elected every two years, thereby ensuring all states have a voice and no party bias can occur. If any modification needs to be made to the Biden-Thurmond rule to more accurately reflect the updated and most current will of the people, it should be whether the House of Representatives and President are of the same party.