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The Incredible Shrinking Supreme Court

It sounds extreme, but Senate obstruction could keep the bench from reaching nine justices for a long time.

It's taller than it looks.

Photographer: Mark Wilson/Getty Images

Senate Republicans changed the rules of the U.S. Supreme Court confirmation game by blocking President Barack Obama’s nominee, Merrick Garland, after the death of Justice Antonin Scalia. Now it’s the Democrats’ turn to make the next move.

Senate Minority Leader Chuck Schumer has signaled that the Democrats will filibuster almost any nominee proposed by Donald Trump. Although the Republicans could break the filibuster by invoking the so-called nuclear option, it isn’t certain that they will be able to do so. That would leave the court with eight members for the foreseeable future -- and potentially create circumstances where vacancies can only be filled when the president and 60 senators come from the same party.

QuickTake U.S. Supreme Court

To understand how the game could unfold, you have to go back to 2013, when the Democratic Senate majority, fed up with Republican opposition to Obama’s nominees for various executive and judicial branch posts, exercised its version of the nuclear option. Coordinated by then-Majority Leader Harry Reid, the Democratic rule change eliminated the filibuster for all presidential nominees except the Supreme Court. 1

Because the filibuster is not in the Constitution, but is simply a Senate rule, 51 votes was all it took to remove it. That’s also why the Senate Democrats had the power to leave behind the parts of the filibuster rule that it chose to keep.

By leaving the Supreme Court filibuster in place, the Democrats preserved the possibility of blocking Trump’s nominee. Such a filibuster would no doubt have political costs. Senate Democrats who denounced their Republican counterparts for failing to give Garland a vote are going to have to explain why circumstances have changed.

That will be especially embarrassing for those Democrats who maintained, with Obama, that the Constitution requires the Senate to vote on a presidential nominee for the Supreme Court. As I argued at the time, that position was wrong: The Constitution is silent about whether Senators have to vote.

Nevertheless, Schumer’s comments indicate that the Senate Democrats will get over the embarrassment of being accused of hypocrisy. They’ll simply say -- with some reason -- that they have no choice but to do what the Republicans did, and that turnabout is fair play.

For their part, the Republicans can be expected to argue that there’s a fundamental difference between the last year of a lame-duck president’s term and the first year of a new president’s. It’s not a preposterous argument. But it’s unlikely to have much sway with Democrats.

By blocking Garland, the Republicans created a radically new environment for confirmation battles. Innovation is in the air. And recall that, in October, Senator John McCain suggested that a Republican Senate might block Hillary Clinton’s Supreme Court nominees. That’s more or less what Schumer is suggesting, although in reverse.

The Republican majority in the Senate stands at 52-48. If the Republican leadership can persuade all but one of its members to vote to change the filibuster for the Supreme Court, then the conflict will be brief. The nuclear option will be expanded to include all presidential nominees, and the Democrats will lose. That’s still the most probable result.

But what if two Senate Republicans think the Supreme Court filibuster is too useful to give up? That wouldn’t be an unreasonable thought. Liberal activist justices can do a lot more than conservative activist justices to change the nation’s constitutional norms. Liberal justices can discover or create new constitutional rights for new classes of Americans.

In contrast, most of the time, constitutional conservatives oppose the expansion of rights. Sometimes they will vote to roll back the protections that the court has created -- that may count as regress, but it’s usually regress to an older constitutional reality. Conservative constitutional activists can also try to block progressive legislation -- but that, too, is a defensive maneuver.

If the Senate Republicans can’t break the filibuster, we’d get a new Supreme Court nomination norm with enormous consequences for the court. Instead of filling Supreme Court seats as they became vacant, the court would shrink in size until the president and 60 senators came from the same party, or until the Senate majority was willing to eliminate the Supreme Court filibuster. Then the president would fill all the vacancies, winner take all.

Nothing in the Constitution prohibits a smaller court or one that fluctuates in size. Article III of the Constitution does require the existence of a Supreme Court -- but presumably it could consist of just a single justice. Article I, Section 3 says that the chief justice presides at an impeachment trial, which implies that there should be a chief justice -- but on a court of one, presumably that one would count as the chief.

If the incredible shrinking Supreme Court sounds unimaginable, that should count as a reason to expect the Senate Republicans to break the filibuster. But an eight-justice court seemed pretty unimaginable when Justice Scalia died last February -- and it’s become a reality, at least for the moment.

Even if the filibuster is overcome, there already seems to have been long-term change in the way Supreme Court seats are filled. If the Democrats had a majority in the Senate today, it seems entirely possible that they would be saying they’d refuse to vote on Trump’s nominee for the next four years. Some version of winner-take-all confirmation politics may already be with us.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Schumer has said recently that, at the time, he wanted to preserve the filibuster for cabinet appointees as well as Supreme Court nominees, and that he regrets having lost on the cabinet issue.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net

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