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How norms erode
SCOTUS in Crisis

In the final days of the 2016 campaign, Republican Senate candidates have upped the ante in their Supreme Court brinksmanship, setting aside their commitment to “let the next president” fill Justice Antonin Scalia’s seat, suggesting instead a permanent blockade against Clinton High Court picks. Yesterday, the most powerful conservative lobby on Capitol Hill formally threw its weight behind this maximalist position. The Hill reports:

The conservative group Heritage Action is pushing Republican senators to keep the Supreme Court at eight justices if Democrat Hillary Clinton is elected president.

In a Thursday morning briefing at the Heritage Foundation’s Washington headquarters on Capitol Hill, the group said Republicans should embrace the idea of leaving the Supreme Court without its ninth justice, perhaps for as long as five years.

Dan Holler, Heritage Action’s vice president of communications and government relations, signaled that this year’s Republican blockade of President Obama’s nominee, Merrick Garland, is just the beginning of a fight that could last the entire first term of a Clinton presidency.

“You’ve seen John McCain and others talk about the need to not confirm any liberal nominated to the Supreme Court,” Holler said. “That’s exactly the right position to have.”

It’s still unlikely that the Heritage plan will be put into play. Democrats are modestly favored to win control of the Senate (perhaps with a Vice President Kaine as the tie-breaking vote), and if GOP Senators attempted to filibuster Clinton’s nominee, Senate Democrats would probably nuke the filibuster for Supreme Court nominations. And, of course, Donald Trump could still pull out a surprise victory in the presidential election. In that case, as the New York Times notes, “it will be Democrats searching for ways to hold up Mr. Trump’s court choices.”

But the fact that such an unprecedented maneuver now seems within the realm of possibility highlights the perilous state of the High Court’s legitimacy as an ostensibly non-partisan arbiter of the meaning of the American Constitution. And as Jason Willick argued in July, that crisis of legitimacy has roots that extend far deeper than the 2016 election.

First, elite polarization has divided the legal establishment into consistently right and left-leaning camps, so judges favored by one side are increasingly unacceptable to the other. Polarization has also paralyzed the legislature and made critical questions harder to resolve in eras of divided government. This is one reason for what Francis Fukuyama calls “the judicialization of American government”—that is, the delegation of increasing authority to the judicial branch. The stakes of Supreme Court nominations are now higher than most of the Founders would have ever imagined.

Moreover, from the Nixon Era through the present day, the “median justice” of the nine has been a political moderate. This has preserved a delicate compromise—the public was deeply divided, the justices were divided into left and right camps, but the Court as a whole could still maintain its super-democratic pretensions because it delivered major victories to each side. The partisan balance of the Court is likely to change dramatically during the next president’s term, with a median justice who votes reliably with either the liberal or conservative camp. Indeed, according to a FiveThirtyEight forecast, “the median justice during Trump’s or Clinton’s presidency could become one of the most extreme in almost a century.”

The Supreme Court maintains overwhelming influence over American social and political life despite being only weakly tethered to the democratic process. As Alexander Hamilton famously pointed out, the Court has no power to raise an army and no power to tax, so its influence is particularly dependent on habits and norms. And those norms are likely to come under increasing stress in the coming years no matter what happens on Tuesday.

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  • Andrew Allison

    Counter argument: a 4-to-4 Supreme Court will need to convince at least one of the other side to vote with it in order to make a decision. Is that such a bad thing?

    • Fat_Man

      They have Tony Kennedy already.

  • Anthony

    SCOTUS in Crisis! Cui bono?

    • Fat_Man


  • Beauceron

    I dread Hillary filling out the Supreme Court with her activist judges.

    I’m a white, nominally Christian, heterosexual male. They are going to screw me straight into the ground. Thank god I have established myself professionally, I don’t think I’d ever find a job nowadays. Certainly wouldn’t get into a good school.

    But even I think a 4 year filibuster on a nomination is ridiculous and unfair.

    The bottom line is that the Republicans lost the country. They can’t pretend they haven’t lost it– they have and it’s time to face that fact. They could have put up SOME resistance to the Left’s nefarious plan of changing the demographics so drastically that the “great waves” of immigration in the late 1800s and early 1900s are now small in comparison. In 40 years the white population has gone down 25% percent. In another 20 it will go down another 20% for a shocking total of a drop of 45% in around 50 years. Outside of war and colonization, that is historically unprecedented. Nothing can be done at this point. The Left have won and we are headed to a one party state for a very long time.

    Personally, I am bracing myself to become a Democrat. By 2020, certainly by 2024, the Dem Primary is the presidential race. Period. If you are a centrist or a conservative of any stripe, the only way to have any say in who rules over you will be to vote in the Democratic primary.

    But it’s time for Republicans to be big boys and girls and step aside. The Left have won– they may not have won fair and square, but they have won hands down and in convincing fashion.

    • JR

      I would respectfully disagree. The Left has no idea how to run an economy. All talks of permanent majorities are silly. Standing in line for toilet paper has a wonderful effect of focusing one’s mind. Looks like we have to repeat that lesson. So be it.

      • Beauceron

        True, the Left has no idea how to run a country.
        If you look at the left as currently constituted in the US, you realize something very quickly: they are only really good at breaking things. Their immigration policy is designed to smash the country’s culture and traditions, their economic policies are focused on taking not growing, their education policies are about tossing out the rich pursuit of truth and beauty and substituting them with a barren pursuit of social justice, etcetera very much etcetera.
        But they have set up a party that isn’t based on policy or even ideology. The Democrats are now an alliance between wealthy, elitist whites and various identity groups. The identity groups don’t care about policy per se– they want group payoffs. If they get their payments, they’re happy. The elite get cheap labor and lots of profits. It’s why a candidate who, if our government were even marginally honest and not as deeply corrupt as it is, would currently be under indictment instead of on her way to the White House.

        • JR

          You know, I’m a father of two young kids. I have to believe that their generation would be able to fight these battles more ably than mine.
          The thing is, I have personally benefited tremendously from Democrat’s policies. I used to live in a country that I loved. Now I’m doing well in a country I live in. There’s a difference to me that cannot be easily reduced to a dollar figure.

    • seattleoutcast

      There is the Convention of States. That’s a viable option. Most states are republican.

    • Jim__L

      Nope. Keep fighting the good fight. You pretend that somehow it’s not worth it.

      It is.

  • Frank Natoli

    The partisan balance of the Court is likely to change dramatically during the next president’s term, with a median justice who votes
    reliably with either the liberal or conservative camp.

    Here you have proof of extra-terrestrial life, because the author is clearly from a different planet than mine.
    Breyer, Ginsburg, Kagan and Sotomayor ALWAYS vote their Liberals politics.
    Only Thomas and Alito [and the late Scalia] can be relied upon to arrive at different judgments.
    Kennedy and Roberts are wildcards, who delivered multiple favorable rulings on ACA / Obamacare and homosexual marriage.
    The Court has steadily moved rulings Left since the Warren years.
    if GOP Senators attempted to filibuster Clinton’s nominee, Senate Democrats would probably nuke the filibuster for Supreme Court

    Yet further evidence of extra-terrestrial life.
    Because Southern Democrats held up Civil Rights legislation in the 1960s using the filibuster, the Senate agreed to change its historic filibuster rules, from requiring a 2/3 vote of Senators present to requiring a 60% vote of all Senators [not just those present], except for any changes to the filibuster rule, for which the old 2/3 rule remained in effect. Reid et al did not change the filibuster rule to halt Republican filibustering of BHO appointments, because Reid et al did not have the 2/3 majority of Senators present to make any such change. Reid et al simply disregarded the rules, turning the Senate into a House-like simple majoritarian institution when Democrat preferences were at stake.
    The author is welcome to visit my planet any time he or she likes.

    • Fat_Man

      Roe vs Wade was decided 7-2. there were 6 Republicans (Burger CJ, Blackmun, Brennan, Stewart, Powell, & Rehnquist) and 3 Democrats Douglas, Marshall, & White). Only Rhenquist and White dissented.

      • Frank Natoli

        Right. There was a Republican appointed “majority” on the court that decided Roe v Wade.
        And, in your judgment, was Roe v Wade yet another example of “the Court has steadily moved rulings Left since the Warren years”?

        • ricocat1

          Let us not forget that Earl Warren was also a Republican appointee.

          • Frank Natoli

            Eisenhower admitted that was one of his worst mistakes. Warren, as governor of California, was hardly a liberal loon, but once he had that appointment for life, he exhibited a very different persona.

          • Fat_Man

            Warren was a classic California progressive. Progressivism (a/k/a socialism) was a bi-partisan disease. Remember TR? But, there were lots of classical liberals in the Democrat Party back then too. It was Wilson, and then FDR, who made the Democrat party into a socialist institution. A series of intra-party purges starting with the late 1960s, drove all conservatives and anti-communists out of the Democrat party. The existence of a conservative movement inside the Republican party is a mere reaction.

          • Frank Natoli

            Actually, the ideological cleansing of the Democrat Party was courtesy of the man who forcibly raped Juanita Broaddrick…and got away with it. He rammed the 1994 Assault Gun Ban down the throats of the last remaining Southern Conservative Democrats in Congress, and his reward was the 1994 mid-terms, returning the House to the Republicans for the first time since 1952, and the Senate to boot. What then followed was the most conservative changes in Washington governance in living memory, including the Reagan years, all courtesy of Newt Gingrich and a Democrat President willing to compromise with an all Republican Congress, unlike the present scoundrel.

          • f1b0nacc1

            I believe that phenomenon is referred to as ‘growing while in office’. Another excellent (and arguably far more destructive) example of this is Souter.

        • Fat_Man

          Roe vs Wade was the inflection point, when the Court abandoned all self restraint. And, left-right is the wrong dimension. Elite-Demotic, and Power-Restraint and far more relevant.

          • Frank Natoli

            Your characterizations are reasonable, but fundamentally we are talking about two kinds of people: those who rule by what the Constitution actually says, and was known to mean at time of article or amendment enactment, and those who rule by their own personal politics. Breyer, Ginsburg, Kagan, Sotomayor and anyone BHO or HRC would appoint are the latter.
            Consider that a century ago, it was considered necessary to get 3/4 of the states to approve an amendment to tax income. Why? Because nothing in the Constitution empowered the federal government to do so.
            And that it was considered necessary to amend to control the sale of alcohol, then amend again to remove the allowance to control.
            And that it was considered necessary to amend to give women the right to vote, so that they could move the country to socialist, big government positions on EVERYTHING.
            A present day Congress and Executive would not have blinked before enacting any law about income or booze or voting, without regard to any specific amendment.
            And a present day Judiciary does not blink when creating “penumbras” to throw out 50 state laws protecting [or not protecting] the most innocent and the most defenseless, or requiring individuals to purchase private health insurance, or to throw out 50 state laws determining whether or not one man and one woman may marry or any permutation thereof.
            This is all lawless, all three branches.

          • Fat_Man

            We are not talking about two different kinds of people. There is only one kind of human being available. The genius of the founders was to create a system that could work because of human weaknesses, not in spite of them. But, no political system can be self-stable. All of them have weaknesses.

            For the past 80 years, Democrats have tried to create the Leviathan state that destroys all subsidiary institutions of government and of private society and turns all citizens into ants. The Republicans have objected that they can manage the system better than the Democrats. Welcome to TEOTWAWKI.

          • Frank Natoli

            Yikes. Had to look that up. Agreed.
            The Founders may have been the smartest guys of their age, but failed to anticipate a lawless, unchecked judiciary, failed to imagine Miranda v Arizona or Roe v Wade. The states MUST take power back from the federal leviathan, Mark Levin’s “Liberty Amendments” being a good starting point, e.g., a super-majority of the states could overturn a Supreme Court ruling.

          • Fat_Man

            The Court has been complicit, but the President and Congress are the main villains.

          • Frank Natoli

            Disagree. The worst excesses, I named two, were created by the court from whole cloth. What were the President or Congress to do? In any case, it is always “the people” who are to blame. If “the people” don’t like what the Court, or the President, or the Congress, have done, they can vote differently [and mortality will allow the President and Senate to change the Court however glacially].
            But they don’t.

  • LloydDaub

    This trial balloon is merely vote-bait to increase turnout. The GOP could have 65 seats and still cave to President Hillary’s nominees. They will certainly never use the ‘nuclear option’ to stop Democrat blocks of President Trump’s nominees, or they would have done so already to help the far more mainstream GW Bush.

  • Fat_Man

    The crisis in the Court is not its partisan balance. Eventually, the reaper will fix that. The crisis is that it has arrogated powers that no unelected group of men should hold in a Republic.

    I don’t not want to go into the legal methods and tricks that they have used. Suffice it to say that every power grab has been made to the accompaniment of cheering from the legal profession and the scum who publish our mass media. Congress has been more or less supine in this fiasco, even though many of the power grabs could be undone with technical legislative changes.

    The real clue is that if an institution is malfunctioning, the fix is never to change personnel. Because new personnel will be molded by the same institutional imperatives that destroyed the last set.

    The court system and the legal profession are in need of drastic restructuring. Their powers must be severely curbed. Their education and modes of operation must be changed. Only then can we be safe from them.

    • Angel Martin

      All it would take is a President who is willing to say: “The Court has ruled, let them enforce it.”

      • Fat_Man

        The Court has very seldom challenged presidential or Executive branch power. They have completely obliterated the right of citizens to govern themselves at the state level. But, Presidents have no incentive and little ability to affect that power grab.

  • Old Gunny

    Plese stop writing that the Supreme Court is “an ostensibly non-partisan arbiter” of anything. Why anyone continues with this canard is beyond me.

  • ricocat1

    Nonsense article since it looks like the next Senate will have 54 Republicans, losing Illinois while gaining Nevada. It is also looking like it will be President Donald Trump making those SCOTUS and other federal judiciary appointments.

    • f1b0nacc1

      While I hope you are right (and I am cautiously optimistic) perhaps we should put off our celebrations until Wednesday?

  • Proud Skeptic

    If the Republicans are to retain any scrap of relevance whatsoever they need to keep the court from going left. If I were them, I would die on this battlefield rather than allow a non-originalist justice to be appointed.

  • seattleoutcast

    I believe it’s called Checks and Balances. Maybe this will force the other branches to not pick so-called polarizing judges?

  • gabrielsyme

    The conservatives on the court make a genuine effort to root their decisions in the text of the Constitution and the intentions of its framers. The liberals make no such effort, instead using whatever justification is at hand to justify their desired policy goal. Any moral equivalence between the two sides is absurd. The conservatives still do jurisprudence – liberals on the court serve only their preferences.

  • wri

    It’s extraordinary how the Republican’s, in the name of self-righteousness, are able to do stupid and self-defeating things. There is no legitimate, reasonable and good faith basis on which to claim the Republicans are acting within the Constitutioinal order in refusing to affirm ANY Democratic nominee to the Court indefinitely. The vast majority of the population, including conservative-leaning independents like me, will see obstruction for what it is — a mindless partisan move taken despite the Senate Republicans’ clear Constitutional duty. They may be applauded by the extreme right in the party, which the Heritage Foundation to its shame now represents; but these likely are not a majority of “Republicans” and certainly are a relatively small minority of the country. If the Repbulican party continues to allow itself to be held hostage to the “alts” and other far right factions, it is dead as a national party. I very much doubt the party can find an accomodation with the right-wing factions that would allow it to effectively function as a responsible oppositional party. It should bite the bullet now, try to separate itself from these factions as amicably as possible, and focus on (re)building a responsible right-of-center party.

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