As for the court itself, the uneasy balance that has existed for decades — that each president gets a pick or two and that the Senate only occasionally blocks a nomination (Robert Bork being the sole example of a judge voted down in recent memory) — rests on restraint and comity that Senate Majority Leader Mitch McConnell (R-Ky.) destroyed in denying President Barack Obama his pick and then jamming through President Trump’s. If, as seems very possible, Democrats capture the White House and the Senate, there will be a radical remaking of the Supreme Court and its role in our system.
Let’s start with the basics. The Constitution gives the Supreme Court limited original jurisdiction. As stated in Article III: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” But this is a tiny portion of what the Supreme Court does. As the Federal Judicial Center reports: “Between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing. The majority of cases filed have been in disputes between two or more states.”
The Supreme Court’s jurisdiction in all other cases — the ones we commonly associate with the court — are controlled at the complete discretion of Congress. (Per the Constitution: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”) The Supreme Court has huge, wide-ranging jurisdiction because Congress granted it, not because of some constitutional preordained scheme.
The next Congress could, for example, decide that the Supreme Court will have no jurisdiction concerning the constitutionality of federal statutes. Congress could create a separate court for that or simply allow circuit courts to reach their own decisions. (The notion of having different laws in different circuits is not unprecedented. The Supreme Court does not take every case in which circuit courts have disagreed.) Congress could peel off other classes of cases — e.g., the constitutionality of state laws, disputes between Congress and the executive — as well. Conservatives in the 1970s and 1980s, increasingly worried about an imperial Supreme Court, considered all sorts of measures to limit jurisdiction (e.g., taking away school busing cases).
A highly partisan Supreme Court widely viewed as politically driven could find itself with rather little to do.
That is only one change that a new Congress might enact. The Post’s Editorial Board and many others have suggested limiting the term of Supreme Court justices. Back in 2014, Norman Ornstein of the American Enterprise Institute wrote:
With a Court that is increasingly active in overturning laws passed by Congress and checking presidential authority when there is a president of the opposite party, that means nominations both to appeals courts and to the Supreme Court have become increasingly divisive and polarized, for both parties. And the policy future of the country depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society. …For more than a decade, I have strongly advocated moving toward term limits for appellate judges and Supreme Court justices. I would like to have single, 18-year terms, staggered so that each president in a term would have two vacancies to fill. Doing so would open opportunities for men and women in their 60s, given modern life expectancies, and not just those in their 40s. It would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.
The Supreme Court could also be expanded by two or even four justices. The number of justices is a matter of statute, subject to the will of Congress. Since the Merrick Garland stunt, former attorney general Eric Holder has supported this approach. “If, in fact, they are successful in placing a justice on the court,” Holder said recently, “we need to think about court reform. And at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court.”
To achieve some or all of these reforms, Democrats will probably need to do away with the Senate filibuster unless their wins in November are enormous and a few Republicans can be persuaded to strike a deal. Having destroyed even the patina of independence and of fair play, Republicans would be in a poor position to scream foul. And even if they do, I am certain a substantial majority of Democrats in the House and Senate will shrug, smile and proceed ahead. (Without the filibuster, a whole list of other measures can be passed, including a statute ensuring abortion rights and funding without the Hyde Amendment restrictions under any government health-care program, securing voting rights, admission of new states, etc.)
The mistake that Republicans make is thinking there is some permanent victory they can obtain in defiance of popular will that is increasingly hostile to their agenda. As undemocratic as our system has become, a substantial majority of voters can ultimately work their will by electing a president and congressional majority of their liking.
If McConnell is not able to jam through a confirmation before the election, all of these reforms and more will be on the table in the lame duck session. A president-elect Biden, armed with an incoming Senate majority, would be in a strong position to lay out the future of a diminished and defanged Supreme Court should Republicans jam through a nominee after a sizable election loss.
“The GOP is in the process of landing a devastating one-two punch on the credibility of the Supreme Court,” says Norman Eisen, former counsel to Democrats on the House Judiciary Committee during the impeachment process. By refusing to consider the nomination of Garland in 2016 and now flip-flopping to force through another nominee in an election year, Eisen argues, Republicans would have “tainted” two of the nine seats and therefore the court itself. He adds: “The Democratic leadership of the House and the Senate have made clear that any and all remedies should be on the table if this proceeds, and that is right. Adding additional seats, re-examining the scope of the court’s jurisdiction (to the extent constitutionally permitted), imposing stringent ethics requirements like the ones that apply to all other judges nationally, enhancing Court transparency and much more should be carefully evaluated if this appointment goes forward.”
The permutations and possible outcomes are endless, but two things are not up for debate. First, Democrats will need a convincing win to achieve any of these measures, not to mention the rest of their agenda. An army of Ruth Bader Ginsburg admirers marching to the polls can increase their chances of a convincing victory.
Second, let’s stop the silly moaning that “Republicans cannot be stopped” or that “the right will own the Supreme Court for decades.” Nonsense. Ultimately, the people decide — and there is every reason to believe that the people have no stomach for a Republican world in which millions lose health-care coverage, abortion is criminalized in many states, LGBTQ rights are undone, states can eviscerate voting rights and the executive branch gets a free pass to do whatever it pleases. November will become a referendum not only on all these issues, but on the Republican effort to impose minority rule of overwhelmingly White conservative states on the rest of the country.