If the Supreme Court follows the election returns, as the old saying goes, the 2016 election will set the court’s path for a generation. When the next president is sworn in, three sitting justices — Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy — will be in their 80s; Stephen Breyer will be 78. These justices are hard-charging, yet statistics are against them: The average retirement age for a justice leaving the court since 1971 is just under 79. They may not be able to delay retirement until the political stars align or even until their replacements are confirmed. So pundits are predicting, and fundraisers for both parties are warning, that the next president will get to chart the course the court will take for decades to come.
This argument rests on the unexamined assumption that “the next president will hold tremendous power over the Supreme Court’s make-up,” as Rolling Stone put it. But legal scholars have started discussing scenarios in which the next president is practically powerless when it comes to appointments. They caution that because the partisan divide is so deep, it may be impossible to get Supreme Court nominees confirmed.
“It’s very likely that that seat just stays vacant,” Ian Millhiser of the liberal Center for American Progress Action Fund told USA Today. Conservative law professors Josh Blackman and Randy Barnett have gone further, arguing in the Weekly Standard: “The inconvenience of one or more terms at the Supreme Court with fewer than nine justices — even through an intervening midterm election — pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait.”
Conservative legal scholar Michael Stokes Paulsen says the court could get along fine with eight justices. “What do you do with ties, in the meantime?” he wrote in the National Review. “Again, there’s an easy answer. The Court has a standard practice about what to do in such situations, and it is a sound one: it leaves the judgment of the lower court alone. Ties go to the winner in the ‘court below,’ but without setting a national precedent. This has happened many, many times in our nation’s history, and the republic still stands.”
Leaving a seat open indefinitely may not seem like a big deal. After all, justices recuse themselves from time to time, and the Constitution doesn’t say anything about needing nine. But partisans should take note: Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats.
How likely is nomination deadlock? There are two ways to get there. The more intractable scenario is that the White House and the Senate remain split beyond Inauguration Day 2017, and the Senate majority determines to block all Supreme Court nominees until the next election. Alternatively, if one party ends up winning both the White House and the Senate, the Senate minority could filibuster any nominees.
Split control is a real possibility. The latest models show Hillary Clinton ahead in most of the possible presidential candidate match-ups, while Republicans have slightly better odds of retaining the Senate. It’s still early in the campaign cycle, of course.
Even when one party has controlled both branches in recent years, blocking judicial and executive appointments has been a favored power move by the minority. Senate Democrats put an end to Republican obstruction in 2013 by exercising “the nuclear option” and eliminating filibusters for most nominations by the president. That cleared the way for approval, most notably, of three of President Obama’s nominations to the U.S. Court of Appeals for the District of Columbia Circuit, along with a host of other appointments. (Though Republicans are still slowing down appointments by other means.) The 60-vote filibuster still looms for Supreme Court nominations, and it almost certainly would be put to use if the Senate minority isn’t from the same party as the president.
To date, the only successful filibuster of a Supreme Court nominee was in 1968, when Republicans mobilized to prevent the elevation of Abe Fortas from associate justice to chief justice. But recent nominations have been contentious — and future nominations will be even more so. A coalition of moderates prevented a Democratic bid to filibuster Samuel Alito’s nomination in 2006. Only three members of the Gang of 14 (Sens. Susan Collins, Lindsey Graham and John McCain) are still in the Senate. Similarly, a mere nine Republicans voted to confirm Sonia Sotomayor in 2009, and five voted to confirm Elena Kagan in 2010. Only three Sotomayor Republicans and two Kagan Republicans remain.
To the extent that the 2016 presidential candidates have talked about the Supreme Court, they’ve talked about litmus tests. The Democrats would want their nominees to overturn Citizens United . The Republicans are focused on striking down Obamacare. Supreme Court litigator and blogger Tom Goldstein says that if the next president submits relatively moderate, “clean as a whistle and sharp as a tack” nominees — especially if they are “black, female or Hispanic” — senators will be reluctant to be seen as precipitating a constitutional crisis. But activists have served notice that they won’t tolerate compromise on an ideological moderate or someone with a limited record (a “stealth” candidate). “Demand justices with a proven record of upholding the Constitution,” an ad from the conservative Judicial Crisis Network instructs. “We can’t afford more surprises.” Goldstein assesses that the Republicans would be especially loath to compromise.
In other words, a stalemate seems almost inevitable. “Such a confrontation is not only a logical outcome but the most logical outcome,” liberal writer Jonathan Chait predicted in April 2014, when astute political reporters and Supreme Court watchers first raised the prospect. “Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands,” Chait wrote. “Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.” The conservative Paulsen, writing this past June, defended Senate intransigence another way: “A politically motivated resignation and appointment can rightly be parried with a politically motivated refusal to go along with the game.”
Refusing to go along might mean leaving a seat, or seats, open for years. If split control of the White House and the Senate were the problem, the midterm elections might not resolve it, since the president’s party often loses seats in the midterms. If it’s a filibustering Senate minority that’s obstructing confirmations, a frustrated majority ultimately may be tempted to revoke the filibuster and strip the minority of that weapon. Senate Republicans floated that possibility in 2015, and both parties seem more comfortable with it since the Democrats exercised the nuclear option.
Meanwhile, a lot of law would need to be decided.
A Supreme Court vacancy would favor liberals, because an eight-member court would often divide 4 to 4, affirming the decisions of the predominantly liberal lower courts.
Ties would be most common if the vacant seat belonged to swing voter Kennedy. If Scalia were the one to leave, Kennedy’s conservative tilt would sometimes generate the ties, barring the occasional walkabout from Chief Justice John Roberts. And if Ginsburg or Breyer left, Kennedy would side with the three remaining liberals often enough to sometimes tie the court in important cases. In addition to his much-touted vote for same-sex marriage in Obergefell v. Hodges, Kennedy has voted with the liberals in civil rights and environmental cases, to rein in partisan redistricting and to grant Guantanamo prisoners the right to challenge their detention.
A tied Supreme Court traditionally issues a per curiam, or unsigned, decision affirming the ruling of the lower court. So under an eight-member court that regularly produced split decisions, each circuit would be like a little Supreme Court of its own. Obama has overseen a significant transformation of the federal courts, with nine circuits now dominated by Democratic appointments and only four by Republicans. On really important cases, the circuit courts are likely to meet en banc, with most or all of the judges sitting, meaning raw numerical dominance will always matter.
The 5th, 6th, 7th and 8th circuits, where conservative decisions would stand in the case of Supreme Court ties, mostly cover red states in the South and Midwest. Only some of the Great Lakes states are caught offsides. Meanwhile, the blue states on the coasts, along with purple Western states such as Colorado, are in liberal circuits. But here’s the kicker: Since most of the circuits are controlled by liberals, much of the conservative heartland is marooned in blue circuits. Arizona, Idaho and Montana are in the much-reversed liberal 9th Circuit. The entire Southeast, from Virginia to Florida, is covered by two circuits liberalized by Obama appointees. One liberal circuit, the 10th, has just one reliably blue state, New Mexico.
Control of these courts won’t switch easily in the next administration. These are lifetime appointments. And most of the 10 current appeals court vacancies are on courts so heavily D or R that filling them wouldn’t make an immediate difference. Two circuits, though, hang in the balance. The 7th Circuit (Illinois, Indiana, Wisconsin), with two vacancies, has six Republican appointees and three Democrats, but three of the Republicans are very independent. Two appointments could matter a lot. Even more critical is the barely blue 3rd (Pennsylvania, New Jersey, Delaware), with seven Dems, five R’s and two vacancies. Obama’s nominee for one of the two empty seats, District Judge Luis Felipe Restrepo, is finally scheduled for a floor vote this month, but the president has nominated no one for the second seat, open since July. A couple other of the lower courts — the D.C. Circuit, the 2nd — also have some seriously aging judges from Democratic administrations of yore who might consider leaving with the one who brung ’em.
In cases that resulted in Supreme Court ties, conservative states in liberal circuits would fare the worst. That’s because most critical constitutional cases involve the Supreme Court telling the states what they can and cannot do. Brown told Kansas it could not formally segregate its schools. Roe told Texas it could not criminalize all abortions. If the Supreme Court were out of the picture, the red circuits could allow the states they govern to all but recriminalize abortion, restrict voting rights and gut the provision of female contraception or gay adoption. Liberal states such as Illinois are unlikely to pass such conservative laws, so the color of their circuit wouldn’t matter as much to their citizens’ lives. With the crucial exception of their ability to pass gun-control legislation, which would be curtailed, all the liberal states would have to do is nothing. But many of the issues that matter to conservatives require the states to act — to criminalize abortion, define marriage stringently, legislate religious exemptions, restrict who can vote and when. A blue circuit could stop its red states from doing any of these things, whether the red states liked it or not. A divided federal government is unlikely to produce much new law, but on rare occasions even federal programs might be valid in some circuits and not in others.
Some litigants might turn to state courts, hoping for more favorable results than they might get in the federal judicial system. But state supreme court judges are often selected by “merit” or in nonpartisan elections, so their politics are not as predictable. In cases that turn on federal laws, like the Constitution or the Voting Rights Act, alert litigants such as the ACLU would race to file in federal court immediately after an offense and petition for any cases filed in state courts to be removed to federal jurisdiction.
We know something about how things would play out from previous cases that have resulted in Supreme Court ties. In 1977, for instance, Justice William Rehnquist recused himself for health reasons from sitting on and deciding whether single-sex high schools were unconstitutional. The 4-to-4 decision left standing a lower-court ruling approving the sex segregation in Philadelphia; the issue has never been definitively resolved.
Past vacancies, though, have been short-lived, and the court has gone to great lengths to avoid deciding crucial cases by a tied vote. We’ve never seen anything like what could happen after the next round of vacancies.
Justice Ginsburg has said she doesn’t want to retire before she has to, because she doesn’t expect that even a Democratic president would be able to replace her with someone equally liberal. The question is, when the time comes, will the president and Senate be able to agree on any replacements? If a Republican wins the White House, liberal senators would be reluctant to confirm a ninth, decisive justice who would impose conservatism on the whole country, rather than just accept conservative rulings in those four red circuits. From a liberal point of view, even an unpredictable Supreme Court appointment is less appealing than the status quo. Conversely, if the Democrats win the White House, Republicans are even more determined to hold out for their preferred nominees. Liberal dominance of the lower courts, however, might make the GOP disinclined to hold out indefinitely.