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.