Dictators in Robes

But let’s go back to the American political system: the reaction to Justice Scalia’s death certainly “says something about how much amazing power is collected in the Supreme court.”

Of course, it’s not clear what the moral or emotional valence of that statement should be. Indeed, I’m left with a great deal of ambivalence about it. On one hand, we are taught as schoolchildren that the Supreme Court is the last bulwark of liberty in our political system — Brown v. Board of Education being the epitome of this libertarian ideal. But we still rely on the Supreme Court’s ability to invalidate the actions of the elected branches of government, at both the state and federal levels. Consider the general elation at the Obergefell v. Hodges (marriage equality) decision. Or the victory for liberty that was the trio of Hamdi, Hamdan, and Boumediene — the cases that set limits on the government’s ability to detain “enemy combatants.”

Yet, as I have written before, it is naive to thing of the Supreme Court as an apolitical body. The Supreme Court consists of nine politicians, and this is really the only way to understand how a ruling about the procedures used in Florida’s recount system became the 5–4 Bush v. Gore ruling, or how the Supreme Court came close — twice — to gutting President Obama’s signature legislature achievement. Giving nine unaccountable “super-politicians” the ability to veto legislation they do not like is dangerous and undemocratic.

Scholars have discussed a number of ways to improve the democratic legitimacy of the Supreme Court, including 18-year terms, supermajority requirements for striking down laws, and other suggestions. These may be the topic of a future essay, but I simply note here the odd relationship our country has with these nine dictators-in-robes.

All is Fair…

This leads me to my second reflection. The immediate political question following Justice Scalia’s death was whether the Republican Senate will confirm any nominee put forward by President Obama. The Republican Party’s official line is currently No, we will not confirm any nominee put forward by President Obama, even if this means we have eight Justices on the Supreme Court for the next 12 months.

There has been a lot of hand-wringing over whether this is a “legitimate” tactic or not and whether or not the Republicans have a duty to confirm a nominee.

My answer is, Of course it’s a “legitimate” tactic. All is fair in love, war, and politics. And consider the context. The current Republican Party has taken a position of wholesale intransigence, which led to a two-week government shutdown in 2013, to say nothing of multiple flirtations with financial catastrophe in the debt-ceiling standoffs. Compared to sacrificing the basic functioning of the federal government or the backbone of the world economy in the name of ideological purity, an understaffed Supreme Court is small potatoes.

The bigger question is, how did we get from arguing about the qualifications of particular nominees to arguing whether the Senate will confirm anybody at all?

A Dysfunctional System

Last October, Matt Yglesias wrote a controversial essay for Vox entitled “American Democracy is Doomed.” It is worth reading in its entirety, but here’s the quick summary: The American political system is inherently unstable, because of the competing claims to “democratic legitimacy” of the President and the Congress; when the two branches are run by different parties, this is a recipe for gridlock. The reason our system has worked thus far is that our political parties have been uniquely non-ideological. This allowed compromise to occur; during the Reagan administration, for example, the president could pass legislation by relying on like-minded “Reagan Democrats,” even if he lost the support of northeastern liberal Republicans. In the last decade, as the parties have solidified into ideologically “pure” and rigid organizations, politics has become entirely zero-sum, and this has led to the polarization and “government-by-crisis” that we have seen in the past decade.

A specific instance of this gridlock was described in a Vox article posted yesterday by Ezra Klein, entitled, “Replacing Antonin Scalia will be a profound test of the American political system.”

“Constitutional Hardball”

In 2014, the Supreme Court decided NLRB v. Noel Canning. At issue in the case was whether President Obama’s “recess appointments” to the National Labor Relations Board were constitutional.

The Constitution has this to say about recess appointments:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Like much of the Constitution, this sentence is hopelessly ambiguous. What does “may happen” mean? Does the vacancy have to arise during the recess, or can it arise while the Senate is in session and just exist during the next recess? And does “the Recess” mean just the yearly intersession recess over the holidays each winter, or does it mean any time the Senate is not in session?

That this question even got to the Supreme Court was the result of “constitutional hardball.” During the George W. Bush presidency, several of Bush’s desired nominees could not make it through the Democratic Senate, so Bush decided to circumvent the Senate by making appointments whenever the Senate was in recess. The Democrats fought back by causing the Senate to never formally adjourn — it would continue to hold “pro forma” sessions whenever it was on break, to prevent there from ever being a “recess.”

All of this got worse during the Obama years (with the parties reversed) so President Obama simply ignored the pro forma sessions and said that the Senate was “as-good-as-adjourned,” and made recess appointments. Ultimately, the Supreme Court invalidated this practice; while the Court said “recesses” could occur at any time of year and said the president had broad authority to define what “may happen” meant, the President could not second-guess the Senate’s determination of whether it was in session or not.

But what interested me most was the question the Supreme Court never decided. The Constitution has another obscure provision related to this subject:

[The president] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.

Theoretically, if Congress ever got too obstructionist with respect to appointments, the president could — under certain circumstances — force the adjournment of Congress. This would be the ultimate in “constitutional hardball.” It would be a nigh-dictatorial move that would ultimately be counterproductive, but if the president’s party controls one of the Houses of Congress, they could engineer such a crisis.

This has been a long digression, but the point is that our constitutional system operates more on norms than on rules. The Constitution allows for lots of leeway in how political actors play the game, and the system generally operates smoothly because the various parties respect certain informal norms. But what happens when those norms break down?

What happens when the future of any number of major issues hinges on the appointment of a Supreme Court justice and the Senate simply refuses to act?