The Court After Scalia

via Defining Ideas (Hoover Institution)
Tuesday, March 1, 2016
Image credit: 

Less than 24 hours after the death of Supreme Court Justice Antonin Scalia, political battle lines were drawn over his replacement. Senate majority leader Mitch McConnell declared that the Senate would take no action should President Barack Obama put forward a nominee. So far most Senate Republicans remain committed to that stance. The President avowed that he would perform his constitutional duty by submitting a nomination and insisted that the Senate should fulfill its constitutional responsibility by giving the nominee a yea or nay vote.

On the merits of this dispute, there should be little debate. Clearly the President has constitutional authority to nominate Scalia’s replacement. Equally clearly, the Senate has constitutional authority to approve or disapprove. As with any legislative proposal a president might put forward, taking no action on a nominee is as much disapproval as holding hearings and voting no.

The no-action alternative is always portrayed by those favoring a particular nomination as a failure of the Senate to perform its constitutional responsibility, but nothing in the constitutional language suggests a Senate duty.  Article II, Section 2 provides: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the supreme Court . . . .” The Senate’s advice and consent functions as a limit on the power of the President, not as an affirmative Senate duty.  Were it otherwise, the Senate’s role in the appointment of justices and other officers of the United States would have been included among the Senate’s powers and responsibilities enumerated in Article I. 

Furthermore, the precedents for giving no consideration to the merits of a nominee are many. Of 31 unconfirmed Supreme Court nominations, the Senate took no action on four and voted to postpone or table six. Seven others were withdrawn by the President when it became clear there would be no Senate action or they would not be confirmed. Thus, in our nation’s history, there have been 17 Supreme Court nominees given no formal consideration on the merits while 12 have been rejected by Senate vote (two nominations were nullified for other reasons).

Notwithstanding the precedent, the Democrats’ outrage at the Republicans’ refusal to act is to be expected. We can be sure that if the tables were turned, Democrats would take no action and Republicans would be outraged too. Perhaps there is no escaping such partisan battles over nominations to the Supreme Court. In every term, the Court faces issues with significant implications for political partisans. In their rulings, the justices are often divided along predictable lines. Justices appointed by Democratic presidents vote one way; those appointed by Republican presidents vote another way. Commentators are already predicting that the outcomes in some pending cases will change as a result of Scalia’s death.

On the Court as constituted before Scalia’s death, the departure of any of the five conservatives likely would have altered the result in some pending cases. But that Scalia’s death will have this result is painfully ironic. There is more at stake than the rulings in particular cases. As Professor Cass Sunstein wrote in a moving tribute to Justice Scalia: “For him, the rule of law comes first.” If one man’s departure from the Court will change the rulings in particular cases, then we are living under the rule of men and women, not the rule of law.

Of course we have known for decades, if not centuries, that one person can make all the difference to the ruling in Supreme Court cases. Until Scalia’s death, Justice Anthony Kennedy was the deciding vote in many close cases. Before him, the deciding vote belonged to Justice Sandra Day O’Connor. That is a lot of power in the hands of a single person, particularly in what purports to be a legal system founded on the rule of law.

Sometimes the prognosticators get it wrong, as when they misjudged how Chief Justice John Roberts would come down in the healthcare case. (He ruled that the penalty for failing to purchase insurance under the Affordable Care Act was really a tax and therefore within Congress’ power.) But all too often, predictions based on the presumed political leanings of the justices prove to be correct. Worse yet, the justices are judged by the press, by their coequal branches of government, and by most of the citizenry on the basis of the political consequences of their decisions rather than their commitment to the rule of law.

Judges, whether seen as liberal or conservative, uniformly insist that they are committed to the rule of law. They attribute the differences among themselves to vagaries in the law, of which there are many, or to judicial philosophy. On the Supreme Court, some justices have been forthcoming with explanations of their theories of interpretation, with the starkest contrast between the textualists or originalists like Scalia and the pragmatists and living constitutionalists like Breyer.

One can make a coherent argument for pragmatism, as has Judge Richard Posner, and for a living constitution as has Breyer, but these interpretive theories are not easily aligned with the rule of law. The pragmatic judge takes account of likely consequences for third parties and the broader society while the living constitutionalist adapts the Constitution to perceived changes in societal values and needs. Both approaches allow for ex post adjustments to the legal rules on which the litigants relied. This is not the rule of law. It is law-making by the judiciary.

One can conceive of a constitution under which the judiciary has constitutional authority to amend existing laws and make new laws. Under such a constitution, law-making by pragmatists and living constitutionalists would be consistent with the rule of constitutional law, though the laws would be less predictable. But that is not the constitution under which we live. It is not the Constitution that Justice Scalia devoted his career to interpreting and enforcing. The legislative, executive, and judicial powers are not separated by impenetrable walls, but adjudication and legislation are categorically distinct functions. Consistent with the constitutional separation of powers, there is no plausible rule of law justification for explicit, policy-driven, judicial lawmaking.

During the first Franklin Roosevelt administration, Justice Owen Roberts voted with a 5-4 majority in several cases invalidating New Deal legislation. Then, just two months after Roosevelt announced a plan to expand the Supreme Court to 15 members, Roberts voted with the former dissenters to uphold a Washington State minimum wage law. Although it has long been debated whether Roberts’ change of heart was influenced by the court-packing scheme, it has ever since been referred to as “the switch in time that saved nine.”

Whatever Roberts’ motivation in West Coast Hotel v. Parrish, his change of view on the constitutionality of minimum wage laws gave the New Deal new life and the rest is history. Scalia’s sudden departure from the Supreme Court may be another switch in time with significant and lasting consequences. If President Obama persuades the Senate to confirm a nominee, or if a Democrat wins the upcoming presidential election, the balance on the Court could be altered for a generation or more. Scalia’s replacement could lead to fundamental and far-reaching changes in the laws of the land. Scalia would not be surprised, but I have to believe he would be deeply disappointed.

Justice Scalia was the original modern originalist. He adhered tenaciously and forcefully to originalism, not because he was appointed by a Republican President but because he believed it is the only interpretive approach compatible with the rule of law. He dissented often to press his case, and he pressed his case because he believed, as only a born optimist could, that he might one day persuade his liberal colleagues to see the error of their ways. He no doubt looked forward to many more years of lucid, pugnacious, and witty persuasion to get that job done. Sadly it will now be left to others.

Under the rule of law, the presence or absence of a single judge would be a matter of indifference except to friends and family. The law rules, not the judge. That Justice Scalia’s departure, notwithstanding nearly 30 years of intellectually powerful advocacy for the rule of law from the highest court in the land, could change the outcomes of cases now on the Supreme Court’s docket, not to mention the fabric of American constitutional government, stands as a warning that the rule of law is ever at risk to party and faction.