As the Supreme Court wound down its term, some of the expected decisions on headline-grabbing issues landed a little flatter than might otherwise have been expected because the Court has been limping along for four months without its ninth tie-breaking member. The 4-4 tie that led to President Obama’s immigration policy being struck down without an opinion explaining the Court’s thinking is the most obvious example. Merrick Garland, President Obama’s nominee to fill the vacancy created by Justice Scalia’s death, is stuck in a Senate confirmation limbo that has gotten no further than a few Republican Senators willing to meet him, express their respect, and decline to say they will support bring his nomination to a vote.
It doesn’t have to be that way. But whatever happens to Judge Garland, Supreme Court nominations will remain controversial so long as we continue to overvalue the Court’s role in setting the nation’s public policy. Yes, the Court plays a role, but we need to channel Alexander Hamilton and remember that, on policy matters, the Supreme Court is “the least dangerous branch.”
That may be hard to believe in a era in which the Court routinely decides major issues on 5-4 votes with the justices split along predictable ideological divides. But how much difference will one judge make in resolving the hotly disputed issues that come before the Court? Let’s imagine what would happen if Judge Garland’s nomination stalls and a new president makes a different appointment, either more conservative or more liberal than the present nominee. The sky will not fall, no matter your perspective. That is because to the extent a politically divisive issue comes before the Court, the very fact that it is hotly disputed means that the Court rarely has the last word. There will still be ample room for the political process to work.
Before we get to that, it is worth noting that there is blame all around for the politicization of the Supreme Court nominating process. One principal reason that nominations to the Supreme Court have become so politicized is that the Supreme Court has, on occasion, acted in what seems to be a political manner. One obvious example is Bush v. Gore, in which the Court imagined there to be a constitutional crisis so great that it required its intervention, even though the Constitution already had a process in place to decide elections that the Electoral College did not.
But there are others. Last year, in the oral argument over Glossip v. Gross, which involved the legality of a drug used in lethal injection, three of the Justices were critical of efforts by death penalty opponents to convince drug companies to refuse to supply drugs for use in executions. Justice Alito asked, “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?” This earned a rebuke from columnist George Will, who pointedly observed that “[p]ublic agitation against capital punishment is not relevant to judicial reasoning.”
And then there is Obamacare. In a speech that Jeffrey Toobin called “close to breathtaking in its intemperate incoherence,” Senate Judiciary Chairman Chuck Grassley (R-IA) launched a vicious critique of Chief Justice Roberts after the Supreme Court upheld significant provisions of Obamacare. “The confirmation process has gotten political precisely because the Court itself has drifted from the constitutional text and rendered decisions based instead on its policy preferences,” Grassley argued.
The Senator is on to something, but not quite what he thinks. The Court fight over Obamacare reflects an insidious belief that if you don’t win in the legislative arena, you can always go to court, argue that the law you oppose is not merely a bad idea, but unconstitutional, and obtain relief from a sympathetic Court. This view not simply misperceives the role of the judiciary, it also has a corrosive effect on the legislative process itself because it reduces the incentive to compromise. The fight over the birth control mandate in Obamacare that ultimately ended up before the Supreme Court is just one example of a controversy that could and should have been resolved by a compromise between Congress and the executive branch.
It is this sense that the Court has at times acted in what appears to be a political manner that makes the current deadlock comprehensible. With Justice Scalia’s death, the Court lost its most prominent conservative voice and the likely fifth and decisive vote on issue dear to conservatives. Judge Garland is a respected middle-of-the-road jurist, who looks on paper to be the perfect choice of a Democratic President to send to a Republican Senate for confirmation, but his approval would inevitably shift the Court somewhat leftward. As a consequence, Senate Majority Leader Mitch McConnell would rather take his chances on the results of the upcoming presidential election than explain to his voters why he allowed President Obama’s legacy to include such a shift.
But that brings us back to the initial question: how much difference will one judge make in resolving the most hotly disputed issues of the day? Take abortion and gun control, two issues that will likely be viewed as litmus tests for any potential nominee. Abortion is as contentious an issue as has come before the Supreme Court in the last half century. Hillary Clinton promises that, if she is elected, she will nominate someone who will respect the holding of Roe v. Wade.
Donald Trump’s eleven potential nominees tend to be of the opposite view. One of them, William Pryor, called Roe the “worst abomination in the history of constitutional law.” This is certainly a stark contrast, but it is unlikely to make the kind of difference Chris Matthews suggested when he asked Mr. Trump what he would do if the Supreme Court made abortion illegal. That’s just not going to happen. If the Supreme Court were ever to consider reversing Roe v. Wade, it would likely to be based on the notion that abortion involves questions of family law and when life begins and ends, topics that traditionally have been the province of state law, and thus abortion questions would be left to the states.
But it hasn’t come close to doing this in the 43 years since Roe was issued, despite conservative majorities. It is not going to come to this, mostly because Roe is not the last word on abortion. That’s because the Court in Planned Parenthood v. Casey adopted Justice O’Connor’s formula that allows states to impose restrictions on abortions before the fetus is viable so long as the restriction does not place an “undue burden” on the woman’s opportunity to obtain an abortion. This formula did not please advocates on either side of the issue, but this is where the law has stayed since 1992.
No matter who is nominated, O’Connor’s fact-based approach is unlikely to be overturned, so the only difference the views of the next justice will make will be whether one of a myriad of potential restrictions is allowed or not. The Court’s decision in June striking down a Texas law mandating that abortion clinics meet the standards of ambulatory surgical centers and that doctors have admitting privileges in local hospitals was a straightforward application of Casey, a decision that both the majority and the dissents claimed to rely on. That decision will hardly be the last time the Court faces an abortion issue. Abortion will remain hotly disputed, as it has been since Roe was issued, and there will be no final resolution by the Supreme Court, whoever takes the seat once held by Justice Scalia.
The same goes for the gun control debate. Mitch McConnell has deemed Judge Garland insufficiently protective of gun rights, and therefore not fit for a seat on the Court, even if the Senate were to take up his nomination. The evidence for this opinion is scant – Judge Garland once voted to have the D.C. Circuit hear a gun case en banc – but it shows how hot the topic is likely to be for a Supreme Court nominee. The National Rifle Association would prefer a nominee committed to upholding its hard-won victory in District of Columbia v. Heller, a 5-4 decision authored by Justice Scalia that for the first time held that the Constitution protected an individual’s right to own a gun for protection.
But any nominee’s opinion on Heller will not make much difference on gun issues. This is in part because Heller is not all that it is cracked up to be. The District of Columbia can no longer ban individuals from keeping handguns in their homes for protection, but the decision is written so that most current gun control laws pass muster, as was evidenced by the Court’s refusal to hear cases challenging state or local laws banning the possession of assault rifles. And so, most of the action on guns will remain in the political arena, no matter who the next Supreme Court Justice is.
Thus, even on some of the most divisive issues of the day, a particularly ideological Justice would not have as great an impact as might be hoped for – or feared. Still, a middle-of the road jurist who would be preferable if only to emphasize to those pushing a particular public policy position that, chances are, a Court victory alone will not cut it; you have to win over the public too.
Gay marriage is a good example of how the public leads the Court, not vice versa. In the 1980s, I worked at the Brooklyn District Attorney’s Office with Evan Wolfson, the principal architect of the gay marriage movement. Back then, gay marriage was not exactly popular. Wolfson thought that if one state legalized gay marriage, then gay marriage could spread because a marriage in that state would have to be honored by other states as a consequence of the Constitution’s full faith and credit clause. The Hawaii Supreme Court recognized gay marriage in the 1990s, but opponents fought back; the Hawaii legislature banned gay marriage and Congress followed the Defense of Marriage Act.
With these and other losses, Freedom to Marry, the organization Wolfson founded, adopted a new strategy. It urged marriage supporters to talk to their friends about why the marriage issue meant so much to gay people. The strategy worked. Such one-on-one lobbying helped pass a marriage equality bill in New York and convinced President Obama and Vice President Biden to change their opinions on gay marriage. By the time Proposition 8 came to the Supreme Court, the very California voters who had rejected gay marriage would have voted differently if they had been given the chance. And by the time the Supreme Court ruled that gays could marry in all 50 states (or rather the 13 states that still had not recognized gay marriage), a majority nationwide supported gay marriage, with younger voters especially favorable. It is this shift in public opinion that has made gay marriage a notably absent issue in the current presidential campaign, and makes it unlike that gay marriage will be a perennial hot button issue like abortion.
So in the end, let’s leave judging to the judges, and make those who wish to change public policy do the hard work of convincing the public.