The State of the Court and the State of the Union

The Court is getting political. What does that say about us?

I am, admittedly, a news junkie. I’m constantly checking Politico and Memeorandum, even when I probably shouldn’t be.

Like most Americans, I was surprised to hear of Supreme Court Justice Antonin Scalia’s passing in February. But what was perhaps most striking was the way I found out. Before even CNN or NPR or Fox could break the news to my phone, the Marco Rubio campaign had pushed out a notification containing their press release:

The next [emphasis mine] president must nominate a justice who will continue Justice Scalia’s unwavering belief in the founding principles that we hold dear,the release read. Literally a sentence after memorializing him, and before sending thoughts and prayers to his family, the political scheming over his successor had begun.

The passing of Justice Scalia has left the public to reflect upon the increasingly partisan and politicized Court he both helped create and leaves behind. In the process of finding his replacement, we have watched as the barriers separating the Court from an increasingly partisan society — an environment that the Court had a hand in creating — come tumbling down.

Scalia has left an indelible mark on the Court in his three decades of service. He has been described as brash yet brilliant, argumentative yet funny. Scalia Clerk and Solicitor General Paul Clement maintains that the Justice “fundamentally changed oral argument before the Court” by making it less about presenting cases than fielding questions posed by the Justices.

Besides his shifting Court norms, Scalia was an ideological pioneer. His textualist doctrine as a justice revolved around interpreting the text and only the text of laws, paying no heed to the context or intent surrounding them. The “originalist” approach to interpretation that stemmed from this theory placed an emphasis on a Constitution with a meaning frozen at the time of its drafting. This line of reasoning made him a thought leader among conservatives and on the Court’s conservative wing in contentious battles over affirmative action, gun rights, and gay marriage. A generation of law students have been trained via his opinions and writings, carrying with them the influences of Scalia’s thought.

“Words have meaning. And their meaning doesn’t change.” — Justice Antonin Scalia

The changes that Scalia imposed upon the Court reflect those that have transformed society at large. As Scalia set a new standard of adjudication before the Court, one filled with aggressive questioning and ideological purity, Rasmussen polls tracked Americans’ growing belief that those around them were getting ruder. As Scalia pushed his brand of conservatism forward by looking to the past, so too did the Tea Party and other reactionary groups.

Despite embodying and effecting much of the social and legal change of recent decades, the Court still attempted to remain above the public fray. As it read new rights such as unlimited corporate campaign contributions and handgun ownership into the Constitution, there was still a certain, if waning, respect for its deliberations and eventual decisions, even when they began coming down 5–4 with increasing regularity. All that came toppling down with Justice Scalia’s death.

A recent Pew Research poll found that the nation was more politically polarized than ever in modern times. With the Constitution mandating that the President nominate and the Senate confirm a replacement for Justice Scalia, the Court became yet another political football for both parties.

Moments after news of Scalia’s death was made public, the political maneuvering began. Senate Majority Leader Mitch McConnell and Judicial Committee Chair Chuck Grassley immediately announced that they would not entertain the replacement justice President Obama is required to nominate — despite the Constitution’s mandating that the Senate has the power to “advise and consent” to nominees. The Republicans in the Senate have refused to confirm any new federal judges since June of last year. In response, Democrats have floated the possibility of a recess appointment, allowing the President to sidestep the Senate and seat a judge on his own.

Until a replacement can be agreed upon, it is anticipated that the Court is now ideologically split 4–4. Any cases that end in ties will be treated as though the Court never heard them. Observers have noted that such ties are likely to occur in cases that will shape the future of Obamacare, voting rights, and teachers’ unions. On these issues and many others, the Supreme Court will effectively stay silent for what looks to be at least a year.

In 2004, Georgetown Law Professor Mark Tushnet wrote a paper describing a then-emergent phenomenon he described as “Constitutional Hardball”. In crafting a broad framework for a government, the Constitution was rather vague in its details, leaving specifics of governance to the norms that developed over time. Constitutional Hardball is the breaking of established governing norms in favor of unconventional but technically Constitutional interpretations for short-term gain, leading to a destabilization of political order. Perhaps ironically for Scalia, it is his brand of Constitutional textualism that has led to Republicans reading a right to refuse a court nominee into the Constitution, creating the current quagmire in finding his replacement.

Constitutional Hardball has manifested in the battle over the open Court seat. Some have argued that appointing a Justice should be left until after the election, but reducing the theoretically apolitical court to yet another Presidential and Congressional election issue robs it of its legitimacy and independence as a separate branch of government. Courts and adjudication are dependent on the belief that justice can be blind and matters settled on facts rather than ideology. Making the Supreme Court a partisan matter is dangerous for the health of the nation, and its being treated as such is unbecoming of a government with integrity.