Constitutional hardball in Justice Scalia’s country

Joseph Fishkin

Let me start by stating the really obvious—not a point about precedents or conventions but just a practical point.  Imagine that Mitt Romney were President right now.  Senator Mitch McConnell and the rest of the Republican Senate majority would not be arguing that Justice Scalia’s seat on the Court should remain vacant until a new President is sworn in.  They would be arguing just the opposite: Instead of “delay, delay, delay,” the strategy would be “confirm, confirm, confirm”—make absolutely sure the President’s choice is confirmed before any possibility of an adverse election.  I don’t think there is any serious question about this.  Thus, it’s fair to say that the Senate Republican leaders have made their rule clear.  The rule is as follows: for a Supreme Court vacancy arising in February 2016, Democrats must win two consecutive Presidential elections—2012 and 2016—in order to appoint a successor. Republican victory in either of those elections would mean that a Republican president chooses the new Justice.

Is this rule unfair?  Sure.  Special pleading?  Obviously.  It has been widely noted that Justice Kennedy was confirmed by a Democratic Senate on February 3, 1988, nine months from election day.  But: would the Democrats impose the same rather one-sided rule if they could, if the shoe were on the other foot (i.e. a Republican President facing a Democratic Senate)?

I doubt it.  The parties are not similarly situated.  The leaders of a typical American political party face a mix of conflicting incentives: earning the respect of the activist base on their own side versus earning the respect of moderates and others who want to see the government function effectively.  For today’s Republicans, the incentives are unusually heavily weighted in one direction.  Entrepreneurs on the far right (some of them themselves members of Congress) have marshalled legions of activists and deep-pocketed donors ready to run primary opponents against any Republican who seems to compromise too much with President Obama, whose entire presidency they view, as one observer recently noted, “as an eight-year constitutional crisis.” The result has been a predictable series of major escalations from the right—repeated government shutdowns, threats to default on the debt, blocking the appointment of essentially all appellate judges on a blanket basis—that have come to seem almost normal.  A decision simply to refuse to hold any hearings or votes on a Supreme Court nominee, regardless of who the nominee is, would be entirely consistent with this pattern—so much so that within hours of the news of Justice Scalia’s death, before the obituaries were even up on the web, both nonpartisan observers and Senator McConnell himself were predicting, assuring, or even assuming, just such an escalation.  It is possible for something to be both unprecedented and predictable based on current trends; this is both.  If left-wing activists held as much sway over Democrats as right-wing activists now hold over Republicans, President Obama would be about to escalate in kind—to use his recess appointment power to put, say, Elizabeth Warren on the Court right now, before Congress returns from its recess.  (Don’t hold your breath.)

Where does this leave us?  One way or another—whether the Republicans follow through on their present strategy as I expect they probably will, or not—it seems we are headed for a presidential election campaign in which the future direction of the Supreme Court will play a highly salient role.  That, on its face, has the potential to be a good thing: it could potentially help bring to the surface, for the general public, some of the more important long-term consequences of their votes.  The careful reader will notice a lot of weasel words in the previous sentence.  Whether focusing attention right now on the Supreme Court actually turns out to be a salutary development for our politics will depend on just what we bring to the surface—on what terms we have our coming argument about the Court.  In that way our political system now faces an unusual test.

We have a Court today that is as divided and polarized as the rest of our political system.  Its two major factions are linked relatively tightly with the two political parties in the world of ordinary politics.  In the sweep of American history this is an unusual development; it has many causes, but no Justice deserves more credit for it than Justice Scalia.  He will go down in history as the Court’s greatest practitioner (to date) of popular constitutionalism.  He was a forceful and indefatigable galvanizer of public opinion whose highest-profile written opinions, oral opinions from the bench, and extracurricular speechifying all rested firmly on the premise that what the public thinks about the Constitution really matters, and that by changing minds, he could ultimately change the way we all understand the Constitution.

Justice Scalia was more effective outside the Court than inside.  It is something of a mystery why he reserved some of his most vicious and personal written barbs for Justices Anthony Kennedy and Sandra Day O’Connor, the two votes he needed most throughout his career if he hoped to become the Justice Brennan of the right.  In the end he did not become the Brennan of the right.  Instead he became a more iconoclastic sort of leader, and also one more consonant with our contemporary politics: a leader who views the opposing side in major disputes as deeply, profoundly wrong and even worthy of ridicule.  Today any conversation about the Court necessarily takes place in the world he helped make.


After Justice Scalia’s death, many obituaries and remembrances have argued that Heller, the Second Amendment case from 2008, best exemplifies his success as a jurist.  In that case, in which he wrote the majority opinion, even the two dissents argued with Scalia primarily on ground he chose: the Amendment’s original meaning.  This was indeed a remarkable triumph for Justice Scalia and one that exemplifies an important dimension of his legacy.

But another dimension of his legacy is best understood through no case of his at all.  When Republicans out on the campaign trail today talk about the Supreme Court, many of them speak of the Court in terms that are at once scornful and apocalyptic, describing a “lawless” Court “untethered to reason and logic,” “unhindered by the clear intent of the people’s elected representatives,” “engaged in constitutional contortionism” and an “assault on the rule of law” because of “the Court’s hubris and thirst for power” which is leading ultimately to “judicial tyranny” or even judicial “oligarchy.”  And those are just a few choice quotes from a single Ted Cruz op-ed!  That particular piece by Senator Cruz begins with two substantial quotes from Justice Scalia’s recent dissents.  It follows up shortly thereafter with a paragraph-long Scalia block quote, and then continues on, stringing together what one might uncharitably call “straining-to-be-memorable passages” in a similar vein.  Basically this Cruz piece, like much of the Cruz oeuvre of commentary on the Court, is off-brand Scalia.  It’s got the outrage, the apocalyptic foreboding, and the sheer contempt for the other side, all tuned to just the same Scalia frequency and with the dial cranked up just as high, but with only half the wit.

Ted Cruz is sometimes called anti-establishment, but really he and others like former Senator Jim DeMint, head of the Heritage Foundation and the Senate Conservatives Fund, are better described as leaders of a new, competing political establishment within the Republican Party.  This new establishment is iconoclastic and very willing to make enemies within the party if that is what it takes to drag the party as a whole to the right.  To the consternation of observers outside their narrow orbit, they have turned firmly against Chief Justice Roberts, branding him an apostate and a closet liberal for having enough of a sense of judicial restraint to avoid striking down Obamacare—a view that now reverberates throughout the Republican presidential primary field.  (And don’t get them started on Justice Kennedy.)  Justice Scalia was their star.  He provided almost all of the best material originating from within the Court itself to support claims like those in the previous paragraph, that we are living in a time of unbridled hubris and judicial activism from the left.  That is the central message, on judicial and constitutional matters, of this new right-wing establishment, whose reach now extends way beyond a few radio hosts and lobbyists and Senators, to encompass a substantial swath of the actual Republican party electorate.  For this faction, the Constitution is hanging by a thread, beset by the activist liberals who dominate the American judiciary.

The story of the emergence of this point of view in our politics is far larger than any one person.  Justice Scalia has played an important role in it, but this story began well before he joined the Court and will continue long after his death.  The depiction of the Supreme Court as a lawless, unprincipled, hubristic body, imposing liberal, secular values on an unwilling nation, was a mainstay of Nixon-era opponents of what at that time really was a relatively liberal Court—on busing, school prayer, abortion, free speech for Communists and antiwar protesters and the like, the rights of criminal defendants, the death penalty, and so on.  But that is not today’s Court.  We haven’t had a Court like that in forty years.

The decision about who should replace Justice Scalia, and who should fill the next vacancies on the Court, requires a judgment about the jurisprudence of the Rehnquist and Roberts Courts, not the Warren Court.  Americans need to decide whether we wish to continue in the direction these courts have plotted or reverse course.  To decide this, we need to understand something of what these courts have been up to.  The past forty years have not been, to put it mildly, a steady march leftward from Roe to Obergefell.  They have been years of dramatic changes, mostly rightward, mostly of low or moderate salience but often of enormous import.  Both sides ought to want to tell the public their version of the story of these changes.

In this regard, the strategies of liberal politicians have generally been an enormous disappointment.  Typically, their key move has been to focus on the possibility that a new conservative nominee might “overturn Roe vs. Wade.”  I’m not that old, and I have heard that slogan more times than I can count.  Perhaps it makes sense in terms of marketing.  But it is deeply stupid.  It doesn’t even capture what the current conservative court is doing in the area of abortion—gutting the right without overturning the case.  Lately there has been a similar invocation of Citizens United on the left.  Apparently some hope that any future Sanders or Clinton appointee would hypothetically “vote to overturn” that case.  But this, too, captures only a small slice of what is at stake in the Court’s new libertarian First Amendment jurisprudence—or even specifically in its campaign finance jurisprudence.  It certainly gives no hint about why you ought to care about Supreme Court appointments if you care about, say, mandatory arbitration, environmental protection, voting rights, or anything on an enormous and growing list of legal issues that may not be at the forefront of the culture wars, but that affect things that matter to Americans who care about politics.

We remake our constitutional and legal order in large part through “partisan entrenchment”: We elect Presidents who appoint Article III judges who make the changes through their decisions.  There are various things to be said about this process both descriptively and normatively.  Normatively, it seems to me that it works better, and produces outcomes with a stronger claim to legitimacy, if we can have a relatively more honest debate about what the alternatives look like: about how one can reasonably expect the Justices affiliated with and appointed by Presidents from each of the two major parties to behave.

If we are stuck instead in a conversation about out-of-control, unprincipled, hubristic liberal judicial activists (like Chief Justice Roberts, it would seem), then I expect the debate we are now entering will produce more heat than light.  But perhaps producing heat is what Ted Cruz wants.  It got him this far.  If his side of this debate is a dominant voice, and especially if he becomes the Republican nominee on the strength of his strong constitutional views and values—a strategy he is now very publicly exploring—then there will be plenty of people to thank.  But one who would deserve particular credit, more credit than anyone else helping to organize a movement from inside the confines of One First Street, is Justice Scalia.
Posted 12:40 AM by Joseph Fishkin [link]