This week I want to briefly depart from a more general theory of politics to focus on a particular issue of current interest, as President Trump has announced he will shortly put forth a nominee to fill the vacancy on the Supreme Court left by the death of Antonin Scalia nearly a year ago.
The lofty goal I've set out in the description of this blog is an attempt, through my own personal experiences, to find some small bridges between the ever-widening gap in our political ideologies. There's still some kinks to work out and some order to establish, but so far I've avoided discussing specific issues of the day. But I have come to believe that the fight over the Supreme Court has become the latest--and hopefully final--step in the escalation of the political wars raging the past few decades. Given the looming fight, it's worth spending some time thinking about this.
The Importance of the Supreme Court
Ultimately the Supreme Court is the final arbiter over the interpretation of the Constitution, and how that impacts the elected branches' ability to enact public policy. In my view, probably the most important impact of this duty is the protection of the rights of the minority--a fundamental operation of government for which my framework last week failed to account (again, I'm working it out!).
On the protecting minority rights front, most decisions can be placed into two categories--those that put an end to clear violations of majoritarian oppression, and those that explore and lay out new understandings of minority protections, whether through interpretation of new constitutional or legal authority, or through the "discovery" of new meaning in old texts. I fully recognize this last piece is controversial for those who believe in strict construction or originalism, but those valid beliefs do not negate the fact that such interpretation has historically occurred.
Clear violations of minority protections, ironically, actually find themselves to not be well-known cases. This is largely because once the Supreme Court has established a precedent, the lower courts enforce it; any eventual appeals are then denied by the Court, and in doing so reaffirming their previous decisions. It is that second category, then, that produces the most well known cases: Brown v. Board of Education of Topeka, Loving v. Virginia, Obergefell v. Hodges. As the political, racial, ethnic, religious, and countless other forms of diversity in the United States increases, the designation and protection of minority groups becomes more and more important for a growing number of people.
As for interpretation of the Constitution, the Court in large part determines if a particular law or action is within the bounds of the duties allowed and required by the Constitution, one of the most important checks against broad overuse of government power (we all, of course, can and do disagree over where that line is...thankfully the Supreme Court sets us straight). This has significant implications for the implementation of political agendas that are put in place as a result of elections.
The Breakdown of the Political Process
The American political process has always been fraught with turmoil. Even in the earliest days of the republic, the Founding Fathers disagreed vociferously over what the government should and can do--sometimes with tragic consequences. So I would be remiss in discussing where we are today as if turmoil in and of itself is a problem. It has in fact been an ever-present feature of our system of government.
But there definitely has been a breakdown of process that seems to have accelerated in recent years. There is not one particular moment all can point to, but there certainly has been a tit-for-tat dynamic, with the opposing parties ramping up whatever vehicles of obstruction they can muster--filibusters, poison pills, shutdowns, and more. Where there had once been a system that forced extreme policy preferences to be pared down into a less dramatic but more widely-supported position, there is increasingly an all-or-nothing approach that has ground a lot of public policy action to a halt.
This all-or-nothing approach to politics raises the stakes for those looking for permanence of their policy changes. The "People" can at times be driven as a collective from one position to another, particularly in a society where pop culture and attention spans can render the collective more fickle than it had been in the past. So where your side today might be victorious in the all-or-nothing fight, it's also possible that the shifting wave of popular support can quickly undo those changes.
Enter the Supreme Court.
Escalation of the SCOTUS Weapon
The Supreme Court can provide a degree of permanence to policy changes of which democratic institutions can only dream. Major Supreme Court decisions can kill or support a specific policy area for generations--a fact that is important when dealing with the broad goals of minority protection and establishing the constitutional bounds of the government. But as the breakdown in the regular political process continues, and the focus shifts to "permanence-through-opinions" on most or all policy matters, the ensuing proxy battle raises the stakes so as to essentially weaponize the Supreme Court and the appointments process.
Most political scientists and practitioners point to the rejected nomination in 1987 of Robert Bork to the Supreme Court as the beginning of escalating tensions (though Radiolab's More Perfect podcast makes a compelling case that it really began with the 1962 Baker v. Carr decision). Whenever it began, there has been an increasingly partisan focus on nominations, coupled with an escalation of the partisan divide in approving those nominations, culminating in 2016 with the refusal of the GOP-led Senate to hold hearings or a vote on President Obama's nomination of Merrick Garland.
This escalation is continuously reaching new heights. Over the summer, when it appeared Hillary Clinton was likely to win the presidency and lay claim to filling the Scalia vacancy, right wing publications like the National Review and even some elected officials like John McCain and Ted Cruz floated the idea that maybe the vacancy should never be filled, preferring instead to deny a would-be President Clinton just as they had President Obama. After President Trump's election, the discussion has now flipped to the other side, with speculation over whether Democrats in the Senate would return the favor by blocking any nominee they viewed as outside the "mainstream."
What's next? How can this escalation continue? I don't think we fully know the answer. Certainly ten years ago few would have imagined the Senate holding a vacancy open for over a year as a matter of principle (as opposed to going through the review process and potentially rejecting nominees put up by the president). The fear, in my view, is that the future of this escalation could have detrimental effects on our democracy.
What Can We Do Next?
Norm Ornstein, among others has advanced the idea of eliminating the term-for-life of Supreme Court justices, as well as the unknown timing of when vacancies will arise. In an era where Court decisions are viewed as the ultimate--and maybe only--way of gaining agenda permanence, there are significant incentives to win that game at the expense of nearly everything else. The solution, then, is to find some way to reduce those incentives.
Ornstein's suggestion is to implement staggered, fixed eighteen year terms, with one justice vacating their seat every two years. This would guarantee each President two or four nominations (depending on how many terms they serve), and reduce the incentive to try and fill seats on the court that will last twenty to thirty years, or more.
Such a change will require a constitutional amendment, so it is not likely to happen anytime soon. It is also possible that even if adopted, the focus on the importance of SCOTUS vacancies would not subside. But at the moment, the long view only seems to suggest further escalation in ways that lead to consequences we can't yet fully understand. Better, then, to try and reduce the animosity between the two political parties as best we can, even if it is only in small amounts.