In the LA Times, Mike Sacks writes about the new term of the Supreme Court with one justice down. He assumes, with good reason, that the Court has avoided taking on “blockbuster” cases because of the Senate’s intransigence in doing its job.
“Would scores of people camp out on the Supreme Court sidewalk to see that argument?”
That’s the question that separates sleepy SCOTUS terms from the seismic ones. And this new term’s docket, so far, is a snoozer. Yet I come to celebrate, not condemn, this development.
While it may be because every term of Court isn’t earth-shattering, Sacks writes that it’s also to avoid 4-4 deadlocks in ideologically-bounded cases.
While the court last term managed to salvage narrow unanimity in a contraceptive mandate case that equally divided the justices by party line at oral argument, the eight members were not so successful in four other cases, including the 4-4 deadlock that left in place a lower court’s decision to block President Obama’s executive actions on immigration.
A deadlock isn’t a decision. It’s a nullity, a non-decision, and does two very bad things. First, it’s a failure of a branch of government to fulfill its function. Second, it demonstrates what lawyers and judges prefer to deny: that the Supreme Court’s rules are not guided solely by law or reason, but by values. They may wrap up their opinions in lofty rhetoric, but if they are no better than the cartoon characters so many believe they are, locked into ideological positions and conduits for political views of the presidents who appoint them, then who needs them?
The purpose of this third branch of government is to serve as a check and balance on the other two. The Supreme Court is not supposed to be a part of the administration’s team, each justice doing the bidding of the person who appointed him or her.
So this term, there will be no Obergefell v. Hodges, no Citizens United v. FEC, no Gideon v. Wainwright, because they’ve chosen a “sleepy” docket?
Rather than waste their time with futilely acrimonious arguments in open court and in private conference that will lead, at best, to unsatisfying compromises, the justices have shaped a docket heavy on the kinds of technical issues with little political valence that each year result in the court’s many unanimous or near-unanimous decisions.
That’s a good thing for the rest of us.
If that’s true, and it may be according to how one prefers to squint, then why do we bother with a Supreme Court at all?
Much as Merrick Garland wouldn’t be my choice of justice based upon his decisions as a circuit judge showing far too much acquiescence to the needs of law enforcement, the arguments for lack of action on his nomination are absurd. Vote him up or down, but vote. Yet, without a ninth justice, the Court has an excuse to fail to fulfill its purpose of deciding cases that need deciding. And there is no explanation other than the other eight are so ideologically bound that it’s impossible to expect them to put aside their personal feelings and follow the demands of law and reason?
In a New York Times op-ed, Gabe Roth writes about how the Supreme Court justices are conflicted, voting their pocketbook if not their feelz. It’s a very cynical view, but that doesn’t make it wrong.
At the same time, Justice Ruth Bader Ginsburg, who had become a social justice icon while doing far too much talking for someone who gets a paycheck for being neutral, took a swan dive off her pedestal by saying that Colin Kaepernick’s protest was “dumb and disrespectful.” Suddenly, she went from being the Notorious RBG to white feminist racist.
Sooner or later, there will be nine. Our presidential candidates are running on it. And Donald Trump or Hillary Clinton not only may get to choose someone to fill Scalia’s seat, but also that of Justices Ginsburg, 83, Anthony M. Kennedy, 80, or Stephen Breyer, 78. We may then see an ideological supermajority that decides — once and for all — the blockbuster issues that for a generation have had us camping out on the Supreme Court sidewalk.
If that’s what the Supreme Court is all about, creating an ideological supermajority to decide “blockbuster issues” of the sort that makes people camp out on the sidewalk, then it has failed as an institution. The Supreme Court has become a weapon of social change rather than a neutral arbiter of the Constitution. Its personnel, or lack thereof, has become a critical election issue based upon ideology rather than competence, fairness and integrity. What’s the point of seeking cert if you know, based upon the ideological views of its justices, that you’re going to lose before you open your mouth to argue?
If Mike Sacks is right, that it is a “good thing for the rest of us” that the Supremes take on no controversial cases while down a justice to avoid an ugly 4-4 deadlock, then it’s a lost cause. Unlike Mike, real lawyers try cases and need the Supreme Court to make decisions, do its job, tell us whether rulings are retroactive or whether vague laws are unconstitutional. They’re needed in boring cases, which aren’t that boring to the people who live with the consequences, and in the sorts of cases that cause seismic change.
That there are eight justices, all smart men and women, is a problem that shouldn’t exist but for the hyper-politicization of the Senate in combination with the ignorance of the public in accepting the bad-faith arguments for its failure to fulfill its function. Even so, these eight justices, if of good will and integrity, ought to be capable of doing their job despite the possibility of a deadlock.
The public appears to have accepted the premise that the Supreme Court is a sham, voting in ideological blocks to achieve the political values of the public. This was never its purpose. It’s not a smaller version of Congress, or an adjunct of the Executive. Yet, it would appear that the public and media have given up all hope on the Supreme Court being the one neutral branch of government that will rule without regard to politics.
The Supreme Court has a job to do. Its “sleepy” docket is a dereliction of duty, as there are cases, issues, the require its attention and decision. The justices can rise above politics, even if a cynical public can’t imagine a Court acting with integrity. That’s why they get life tenure. So Mike Sacks may have given up on integrity because that’s the popular view, but no, that is not a good thing for the rest of us.
A functioning Supreme Court is what is needed and what the people deserve. All it takes is for eight, and eventually nine, justices to do their job and put integrity ahead of ideology. If this isn’t possible, then the Supreme Court should close up shop.