You Can't Shun a Supreme Court Justice
When a vital espionage operation goes badly wrong in John le Carré’s novel “The Russia House,” a few diehards want to keep trying. But an older and wiser spymaster shakes his head. “Better put the chairs on the tables till next time,” he says.
This is good advice in politics, too. Lose one election, get ready for the next. With the election of Donald Trump as president, however, many on the left seem unwilling to wait for next time. They want to do something now. And, as always, urgency creates bad ideas.
The latest unfortunate proposal comes from Albany Law School professor J. Stephen Clark, who argues in the Hill that once Trump has succeeded in getting a U.S. Supreme Court nominee confirmed, the new justice “should be shunned.” Clark means this literally. The legal establishment should treat the appointee as “an illegitimate ideological plant.” Most bizarrely, any 5-4 decisions in which the new justice is part of the majority “should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint.”
Why all the excitement? Because Senate Republicans refused to hold a vote on Judge Merrick Garland, President Barack Obama’s nominee to fill the seat left vacant when Justice Antonin Scalia died in February. I thought this intransigence was wrong, and wrote about it at the time. But Clark’s suggested remedy is even wronger. It’s not obvious why one party’s decision to break with a vaguely observed tradition means that the legal profession should yield on an understanding that actually matters to the functioning of government. The Supreme Court can get along with fewer than nine justices. But the rule of law collapses when some of the court’s decisions are more worthy of being followed than others.
We have precedents for Clark’s approach. Consider Richard Nixon, who throughout the Watergate affair believed himself (wrongly) to be a victim not of his own mendacity and paranoia but of a political vendetta. As the circles of culpability coiled around him, he kept refusing to turn over the materials subpoenaed by the special prosecutor. Observers began to wonder whether the White House meant to defy judicial orders. At a news conference in September 1973, he promised to abide by any “definitive ruling” -- but declined to say what he meant. At the very least, he was reserving to himself the right to interpret what the Supreme Court decided, and, if the ruling wasn’t “definitive,” he was prepared to give it less weight.
Entirely different? I’m not so sure. Nixon’s essential claim was that the case against him was politically motivated. He thought he was confronting an extraordinary circumstance, a partisan attack of a sort never before visited on any president. Consequently, extraordinary measures were in order.
That we know Nixon was a wrongdoer doesn’t change his argument. The point is that he was willing, for political reasons, to weaken the traditional understanding of the binding power of a judicial decree. And there are people who believe that it was the president’s prevarication on what “definitive” meant that led to the justices’ determination to secure a unanimous decision. A smaller majority, it is said, might have led to a constitutional crisis.
On the other hand, there’s an intriguing nugget in Clark’s idea. By proposing that only 5-4 decisions should be suspect, he is in effect suggesting that when the new justice joins the majority, a vote of 6-3 should be required before much precedential value would attach to the case in question. This is known as a supermajority rule. The interesting question isn’t whether Trump’s first justice should be suspect; it’s whether a supermajority rule would be a good one more generally.
The notion that constitutional decisions should be decided by more than a simple majority of the justices has been around for a long time. It was debated often in the 19th century. Diehard segregationists raised it repeatedly during the Brown era. Contemporary legal scholars who don’t like judicial review (or who don’t like particular 5-4 results) have revived the idea. 1
In a 1920 address to the Michigan bar, Fred A. Maynard, formerly attorney general of the state, argued that Supreme Court cases decided by a single vote were always a bad thing, and should perhaps be treated as illegitimate. The legislature labors to find consensus and get a law on the books, and “by the vote of one man all the work of years is undone.” The public, Maynard said, is understandably incensed: “Is it any wonder that when the will of the people is so easily thwarted a storm of protest follows?” A two-thirds vote is required to impeach the president, he pointed out. “I submit that this rule should obtain when a law of Congress is impeached.”
Although the Supreme Court once decided most cases unanimously or nearly so, nowadays about one-fifth of its decisions are 5-4. My late Yale colleague Robert Burt once pointed out that a tragedy of the court’s fractured abortion jurisprudence was that for a long while, litigants in cases touching the issue would pitch their arguments to Justice Sandra Day O’Connor, the swing vote. They did not even bother to try swaying anyone else. 2
Nobody much likes the 5-4 trend. 3 But the worst reason to change our implicit understanding is that a bunch of lawmakers misbehaved. One puts the chairs on the table and tries again next time.
The Supreme Court is an engine of constitutional decision, and in the long run can’t be disabled. We set the motor running a long time ago, and now it’s become a machine that would go of itself. The political scientist Robert Dahl long ago pointed out what is now a truism: The justices never run against popular opinion for very long. Elections and culture have a way of catching up.
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Another intriguing idea in the scholarship is that a majority or supermajority of justices should be required before the Supreme Court agrees to hear a case. (Currently the votes of four justices are needed.)
See chapter 10 of this book.
Alas, as my Bloomberg View colleague Cass Sunstein has argued, this is a phenomenon we should expect, no matter what the ideological or partisan composition of the court. Legislatures and lower courts adjust over time to what the Supreme Court is doing, so the few cases that reach the justices will include a lot of close and difficult ones.
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