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A Modest Plan to Save the Supreme Court

Scott Turow, a former federal prosecutor, is the author 12 novels including "Presumed Innocent" and most recently "Identical."
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As the U.S. heads for a protracted impasse in the Senate over filling the seat of  Supreme Court Justice Antonin Scalia, I have reached a reluctant, even tortured conclusion. It is time for everyone, liberals and conservatives, to drink a little bit of poison and support the selection of a new justice who sees the court's role in a far narrower way than anyone currently sitting, whether they're on the left or the right -- someone who will reintroduce a more limited style of decision-making.  

In effect, we need a court more inclined to retreat than advance into political disputes, as was the case in the late 1930’s when Justice Owen Roberts, the swing vote at the time, adopted a more accommodating attitude to New Deal legislation. No matter how unpalatable and even unrealistic this idea might at first appear, it is the only logical way out of the increasingly pitched battles about who should sit on the bench. And for that reason, it is overwhelmingly likely to be the eventual outcome.

Certainly, the announced intentions of Senate Republicans not to grant hearings, a vote or even personal meetings to anyone President Barack Obama nominates is not good for the court, the country, or even, perhaps, the Republicans. Senate Majority Leader Mitch McConnell 's claim that “the American people should have a voice in the selection of their next Supreme Court Justice” is a constitutional non sequitur. If the Framers had wanted the people to have a voice in the selection of the justices, they would have provided for their election. Instead, the Constitution envisions a judiciary that is more remote from political influences. That is why federal judges serve for life, so that they are not beholden to political sponsors or ideological trends.

Furthermore, it’s not clear that the Republicans will gain much. Assuming Obama chooses someone who is personable and  highly qualified, the sight of Senate Republicans with their hands clapped over their eyes, ears and mouths cannot sit well with the independents who may hold the political balance of power in the fall.  Moreover, having called for what is essentially a plebiscite on who should choose the next justice, the Republicans have essentially cut the ground out from under themselves to oppose the selection if a Democrat wins the presidency. 

The Democrats, on the other hand, are bound to oppose any choice of a Republican winner, since doing otherwise would reward the conservatives for short-circuiting  Obama’s constitutional prerogative. The Democrats will employ delaying tactics of their own, including a filibuster if they remain in the minority. Justice Scalia’s seat could theoretically remain vacant until the 2018 elections loom or Democrats secure a larger role in naming the replacement

The alternative to prolonged stalemate is consensus and a clear-eyed understanding of how we got into this mess.  At the time the Constitution was written, and through most of the 19th century, the law was viewed as something as objective as science, with neutral decisional principles. In the 20th century a jurisprudential view called legal realism began to take hold.  It holds that judges decide cases, when there is no clear precedent, according to their own moral and political preferences. By now, everybody, Republican and Democrat,  is a  legal realist.  No one believes a nominee will keep his or her personal views out of decisions.

Because of that, there is a traditional argument by some legal realists that judges should labor to decide as little as possible and defer to the political process. Usually, this point is advanced with the greatest force by the side whose ox got most recently gored.  Thus Roe v. Wade was scorned by conservatives as the height of judicial activism. But instead of embracing restraint, once conservatives took over the court, they became right-wing activists instead. In the 2008's D.C. v Heller, Justice Scalia, speaking for a 5-4 majority, concluded for the first time in the 220 years of our constitutional republic, that the Second Amendment granted citizens the right to keep guns in their homes. 

Two years later, in Citizens United, the conservative majority held 5-4 that corporations had a first amendment right to spend unlimited amounts on political expression, even though the Congress and two prior decisions by the court had said otherwise. Activism, of course, is not at home only on one side. Last June, in Obergefell v. Hodges, Justice Kennedy joined the liberal justices to find, 5-4, that there was a constitutional right for gay people to marry.

But the idea that a one-vote majority of the Supreme Court can identify new constitutional rights is very hard to square with the Constitution itself, which provides that it can only be changed as the result of a widespread political consensus. Amendments require a two-thirds vote of both houses of Congress, and ratification by three-fourths of the states.

So to make peace and end stalemate, we need to change the court’s decision-making style and its willingness to inject itself into intensely political disputes. The game in recent presidential administrations has been to appoint to the Supreme Court people with no more than a brief judicial record so they can’t be cudgeled during confirmation hearings with decades of decisions. But I’d say we should be looking for somebody with a long judicial record that, in the eyes of both sides, evinces the most restrained judicial manner and a deliberate effort to stay off the political battlefront.

As the pivotal vote on the court, the new justice would be in a unique position to force it to moderate its style, to decide cases on the narrowest possible grounds, to overrule its own precedents with the greatest reluctance, to strike down legislative enactments solely when there is broad agreement among justices, and to recognize new individual rights only in the same circumstances and when there is a clear consensus in the country. 

This would not be the first time the court has retreated politically. In the early 1930s, the Supreme Court invalidated major pieces of New Deal legislation. After a sweeping re-election victory in 1936, President Franklin Roosevelt proposed expanding the size of the court in order to create a majority more to his liking. That proposal foundered, both because of congressional reluctance, but also because Owen Roberts changed his mind and voted to overrule a decision made only two years before and to sustain a number of pieces of New Deal legislation. The court thereafter deferred to the mandate of Roosevelt’s overwhelming electoral victories.   

I know many people would deride what I’m saying as unrealistic, arguing with some basis that the last 50 years have produced a legal culture where judges don’t even understand how to be restrained. And I recognize that remitting decisions to a political process as strife-ridden as ours risks increasing stalemate, not ending it. My response is that a court less inclined to take sides will increase the pressure for Congressional compromise. And compromising on who sits on the court might pave the way.

There is a large part of me, as an unrepentant liberal, regularly galled by the decisions of the Rehnquist and Roberts court, who is revolted with myself for saying all of this, especially since betting markets tell me that we’re more likely to end up with a Democratic president next year. Worse, I’m arguing in favor of breaking my own heart. For example, everything inside me tells me that human beings have a fundamental right to love whomever they fall for and says, as a consequence, that a stable society must venerate those choices, not prohibit them. 

But I would be willing to bet that a truth that seems so profound to me will soon command an overwhelming majority among voters, in state legislatures and on the court itself. A decision like Obergefell would be even more heartening at 8-1 or 9-0.  

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

To contact the author of this story:
Scott Turow at scott@scottturow.com

To contact the editor responsible for this story:
Tobin Harshaw at tharshaw@bloomberg.net