President Obama and the United States Senate are headed for a high stakes showdown with nothing less than the Supreme Court of the United States itself at stake. If the Republicans in the Senate make good on their threat to not even hold confirmation hearings on any nominee to fill Justice Scalia’s seat until the next president is inaugurated next January, they will take the political partisanship of the confirmation process to an entirely new level. Moreover, 18 months of an eight-person Court with landmark cases on the docket will likely lead to, well, no one really knows.

The only aspect of this political debacle that seems certain is that any remaining faith the American people have that Supreme Court justices are anything but politicians in robes will likely be shattered by this vacant Court seat. After all, it is precisely because the justices’ personal and political values count much more than their legal interpretations that the Republicans are so afraid of President Obama’s next appointment.

Advertisement:

As Alexander Hamilton famously said in Federalist No. 78, the Supreme Court’s power does not come from the purse or the sword but instead solely from the confidence of the American people. The Senate’s bold and obviously partisan entrenchment shows with stark clarity how vulnerable the Court is to political machinations. If the Republicans succeed in their delay and one of their own is elected president, will Democrats ever believe that a new five-member conservative majority created by this stalemate is legitimate? Will they casually accept the decisions of a political Court that was created by Mitch McConnell’s chess game?

On the other hand, if the Senate is willing to put the Court on hold for partisan gain now, why would anyone think that a Republican-controlled Senate in November will approve a President Clinton’s nominees? All the ridiculous arguments Sens. Cruz and Rubio are making now about the death of religious freedom and abortion on demand (neither of which will occur with a liberal Court) they will make then, no matter the election results.

The partisan wrangling engendered by the dogmatism of the Senate Republicans demonstrates yet again the essentially political nature of our highest “Court.” As I’ve written many times, the justices make decisions based on a complex mix of moral, personal, religious, cultural and nakedly partisan political values. The law, in any conventional sense of the term, plays at most a minimal role. As I wrote last year, “taking law seriously—as opposed to making decisions based mostly on personal values--is what distinguishes judges from other political officials. On that basis, Supreme Court justices are simply not judges.”

Advertisement:

We should not expect anything different when we give unelected government officials power for life with virtually no review. On issues that matter to the justices, whether the question is abortion, affirmative action, campaign finance reform or the future of immigration policy, the justices will do what they think best all things considered, and it has always been that way. The more clear that becomes to the American people, the less confidence they will have in the justices, which is one of the reasons many lawyers, legal academics and judges have a hard time acknowledging the reality that the Supreme Court acts much more like a hybrid political institution than a court of law.

The Senate’s obstructionist move may finally reveal that the Emperor really has no clothes. Ironically, and contrary to what many people think, any resulting loss of power and prestige for the Court would, in the long run, actually benefit the left specifically and our country generally.

As I wrote in 2014, the biggest winner over the last decade in the Supreme Court has been the United States Chamber of Commerce and business interests in general. This favoritism is not surprising if one takes a hard look at American history. The Court first started striking down state and federal laws with regularity at the turn of the 20th century and proceeded to invalidate more than 200 progressive laws (by the standards of the time) dealing with minimum wages, overtime rules, working conditions and union protections. This trend ended only when President Roosevelt threatened to pack the Court, one justice made the famous “switch in time that saved nine,” and then eventually the rest of the reactionary justices either died or retired. The “Court-Packing” crisis ended up being quite good for the American people.

Advertisement:

On the issue of civil rights, the Court, over time, has been much more of a reactionary than a progressive institution. In the middle of the 19th century, the justices stopped Congress from ending slavery in the territories, a decision that may well have led to the Civil War. In 1875, the justices overturned a congressional law prohibiting racial discrimination in restaurants and hotels, which was one large step to sanctioning segregation. In 1896, the Court took the final step and officially placed its stamp of approval on state-required segregation and Jim Crow. These two decisions strongly propped up racial apartheid in this country for generations.

Of course the reaction to this history is always to point to Brown v. Board of Education, which ended the “separate but equal” doctrine in 1954. There is no doubt Brown had symbolic importance but the truth is that the Court backed away from enforcing Brown almost immediately. In Brown II, decided the next year, the Court said that public school districts had to comply with the decision with "all deliberate speed," which actually meant “no time soon.” In 1963, in 12 Southern states, roughly 98 percent of elementary and secondary schools were still all white or all black, and throughout the South blacks still were segregated in restaurants, hotels and theaters. Those practices only changed when Congress enacted the Civil Rights Act of 1964 which allowed the executive branch to withhold huge grants of federal aid to those states that still required segregated schools. Segregation in public places stopped only when the civil rights movement turned to active civil disobedience.

Advertisement:

In other important areas of constitutional law such as free speech, freedom of religion and the relationship between state and federal power, the Supreme Court has largely protected mainstream groups and religious majorities as shown by recent decisions on voting rights, official prayers at legislative hearings, and civil rights cases involving state immunity from suit. Of course there are mildly progressive decisions from time to time, and the very occasional major one such as the same-sex marriage case last year, but overall the Court has always protected the strong, the powerful and the moneyed much more than the weak, the poor and the isolated. This descriptive account is exactly what one would expect from an institution whose primary job is to enforce the values allegedly embodied in an old document ratified by our ancestors who lived in times when blacks were property, women couldn’t vote, and amassing personal wealth was the only key to political success.

If Justice Scalia’s death, and the Senate’s intransigence, result in a constitutional crisis, it won’t be the first one we’ve had. In addition to Roosevelt threatening to pack the Court, there was also a lesser-known crisis in 1870 when the Supreme Court decided (for the benefit of rich creditors) that Congress did not have the constitutional authority to issue paper money. This decision had a major effect on the post-Civil War economy and greatly reduced the power of Congress at a time when federal authority was sorely needed.

The decision was announced on Feb. 7, 1870, by a Court with only eight justices, one of whom announced his decision to retire the week before. President Grant, who everyone knew was against the decision, announced on the day of the decision the nomination of two new justices from his party who also were antagonistic toward the case (he had been tipped off about the result two weeks prior). Less than a year later, the Court reversed itself and held Congress had the power to issue paper money. The dissent pointed out, of course, that the majority had not come up with new legal arguments or discovered new facts. The reversal came about solely because the justices on the Court changed. But, the crisis was over and the country, and especially poor debtors, were better off.

Advertisement:

I have long argued for a Court that is more deferential on virtually all the major policy issues facing this country. Elite lawyers should not be resolving difficult and divisive issues that the Constitution does not clearly remove from the normal political process (as broken as it may be). Affirmative action, gun control, campaign finance reform and abortion, among other nationally important questions, should not be taken over by a small, elite class of Ivy League-educated lawyers who have no more expertise making those difficult value judgments than the rest of us. If I sound a bit like our most recently deceased justice, please remember that Justice Scalia did not practice what he preached. He struck down just as many important laws as the liberals, just different kinds of laws. As mentioned earlier, over time, the Court assists the right much more than the left.

Scott Turow just wrote for Bloomberg News that perhaps we would all be better off if the justices on both sides just struck down fewer laws. He is a liberal just like me but understands that judicial involvement often causes more harm than good even when the justices rule for causes that the left favor.

The current political stalemate may lead more Americans to the conclusion that the justices, on balance, really do act much more like politicians than judges, and, maybe as politicians we do not hire and cannot fire, they should stay out of our business more often. If so, the result of this constitutional crisis, like our previous ones, could actually be quite good for the Court and the country.