President Trump’s selection of Neil Gorsuch to fill Antonin Scalia’s seat on the Supreme Court is likely to produce a procedural frenzy in the Senate as Democrats try to show their base that they are “resisting” the new Administration as much as they can and taking revenge on the Republicans for holding up the Merrick Garland nomination during an election year. Nevertheless, the Democrats’ acts of resistance are unlikely to change much in the long run. Gorsuch, a respected conservative jurist, is expected make it through the Senate, filibuster or no, and his presence on the Court will not change the ideological balance that (as Scott Lemieux noted last year) has defined the institution for decades: a moderate Republican—currently, Anthony Kennedy—as the “median justice” and swing vote on high-impact questions dividing the court.
The real test of the strength of our constitutional system will most likely come when the next vacancy on the High Court is filled. If Donald Trump gets the opportunity to replace Ruth Bader Ginsburg or Anthony Kennedy, or if Trump is succeeded by a Democrat who fills a vacancy left by Kennedy or Clarence Thomas, then we will be looking at an unprecedented transformation of the Court in the modern era. As FiveThirtyEight‘s Oliver Roeder has pointed out, either scenario could produce one of the most ideologically extreme median justices “in almost a century.”
Americans have taken it for granted for several generations that the Supreme Court is the final word on American law, and that the elected branches will defer to it even if it skews left or right relative to the public at large. But this extraordinary deference afforded to the Court is probably dependent on the fact that, since polarization started to rise in the 1970s, the judges have been unpredictable, offering important victories to partisans on both sides. Democrats and Republicans alike have always felt that they have a stake in preserving the institution’s legitimacy.
If the Court’s median justice is no longer a swing-vote moderate like Lewis Powell, Sandra Day O’Connor, or Anthony Kennedy, and is instead a reliable partisan of one side or the other in the mold of Sonia Sotomayor or Samuel Alito, the incentives for the side in the minority to honor the judgment of the nine philosopher kings may be substantially diminished. In an era of hyper-polarization, scorched-earth politics, and escalating norm-breaking on both sides, it’s easy to imagine state governments, or even a President or Congress, to decide that they no longer have anything to gain from honoring a Court that predictably rules in favor of their opponents.
Many recent developments in Washington—Trump’s belligerent style, the Democratic Congress’s unprecedented obstruction, the bureaucracy’s revolt against the Administration—stand to test the limits of our political norms. The nomination of Judge Gorsuch is not one of those developments. He is a qualified jurist whose ideological orientation will maintain the fragile bargain that has made it possible for both parties to respect the Court as a kind of super-democratic, almost regal body, even when they are on the losing side of a given ruling. The stakes in the Gorsuch confirmation are far lower than they are likely to be in the nomination of the next justice, who will probably take the Court—and its place in the constitutional system—into genuinely dangerous and uncharted waters.