Crisis at the Supreme Court

This article appears on the October issue of Commentary Magazine.
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When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court—he had suffered a nervous breakdown and was famously paralyzed with indecision—John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner‐​up for the Heisman Trophy and spending a year as the highest‐​paid player in the NFL—and the two became fast friends.

White was a vigorous 45 and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick 90 minutes including introductions and supporting testimony from various bar‐​association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career. The Judiciary Committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote. My, how times have changed.

The battle to confirm Brett Kavanaugh reminded us yet again that the Supreme Court is under the same toxic cloud that has enveloped all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, more easily confirmable than other short‐​listers and with a long public career that had been vetted numerous times. Despite attempts to portray him as extreme, he was firmly part of the legal establishment, specifically its conservative mainstream—and had displayed a political caginess that made some on the right worried that he would be more akin to Chief Justice John Roberts than Justices Antonin Scalia or Clarence Thomas. As it turned out, of course, 11th‐​hour sexual‐​assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a smear campaign unlike any seen since at least Robert Bork more than 30 years ago.

In 1987, Senate Democrats had warned President Ronald Reagan that nominating Bork—then a judge on the U.S. Court of Appeals for the D.C. Circuit after having had a storied career as an academic and government lawyer—would provoke an unprecedented fight. On July 1, 1987, the very day that Reagan announced this pick, Senator Edward Kennedy went to the Senate floor to denounce “Robert Bork’s America,” a place “in which women would be forced into back‐​alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.” It went downhill from there, as Bork refused to adopt the now well‐​worn strategy of talking a lot without saying much. The Senate rejected him.

Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on judicial nominations until 1916—and that innovation was driven by the unusual circumstances of 1) the resignation of a justice (Charles Evans Hughes) to run against a sitting president (Woodrow Wilson) and 2) the first Jewish nominee (Louis Brandeis). It wouldn’t be until 1938, with (also Jewish) Felix Frankfurter, that a Supreme Court nominee actually testified at his own hearing. A quarter century later came Byron White, whose testimony lasted 15 minutes and largely had to do with his football record.

That said, judicial nominations have always been political footballs. For the republic’s first century or so, close confirmation battles and unsuccessful nominees were a fairly regular occurrence—including withdrawn and postponed nominations, or those upon which the Senate deliberately failed to act.

George Washington had a chief‐​justice nominee rejected by the Senate. James Madison, the fourth president, also had a nominee bounced. And John Quincy Adams, who himself had declined a nomination from Madison, had a nominee “postponed indefinitely” during the lame‐​duck period after Andrew Jackson had stopped his bid for reelection.

President Jackson was then thwarted in appointing Roger Taney to the Court, but a change in Senate composition allowed Taney to become chief justice a year later (and eventually author of the worst decision in American history, Dred Scott). John Tyler, who assumed the presidency in 1841 after the one‐​month presidency of William Henry Harrison, never lived down his nickname of “His Accidency.” Congressional Whigs disputed his legitimacy, and their policy disagreements extended to judicial nominations: The Senate rejected or declined to act on four Tyler nominees (three of them twice) before finally confirming one.

Wait, there’s more. Millard Fillmore was prevented from filling a vacancy that arose during his tenure, as was James Buchanan. Congressional elimination of Supreme Court seats stopped Andrew Johnson from replacing the two justices who died during his presidency. For various reasons, it took Ulysses S. Grant seven nominations to fill three seats. Grover Cleveland ran into senatorial traditions regarding seats reserved for certain states, at the discretion of that state’s senators—which he overcame only by nominating a sitting senator (whereby courtesy trumped tradition).

Twentieth‐​century Presidents Warren Harding, Herbert Hoover, Dwight Eisenhower, Lyndon Johnson, Richard Nixon, and Reagan all had nominees rejected—although Harding and Ike got their picks confirmed after resubmitting their names. FDR never had anyone rejected, but his court‐​packing plan was, both in Congress and at the polls. And LBJ’s proposed elevation of Justice Abe Fortas led to what is the first and only successful filibuster of a Supreme Court nominee; Fortas never even gained majority support after both parties’ senators raised ethical objections. Douglas Ginsburg withdrew before President Reagan could formally send his name to the Senate—for having smoked marijuana with his Harvard law students—and became the Drug War’s last public casualty. (Has the career of any other official in the past 30 years been hurt by revelations of drug use?)

Then of course there is Merrick Garland, President Obama’s nominee to fill Antonin Scalia’s seat and the first nominee on whom the Senate took no action since President Rutherford B. Hayes’s nomination of Stanley Matthews in 1881. Very soon after Scalia died, Senate Majority Leader Mitch McConnell announced that his caucus would not hold any hearings or votes on a replacement nominee until after the election. Obama announced Garland’s nomination a month later, and there was no question he was qualified. This wasn’t about qualifications: It was a political argument that this significant vacancy shouldn’t be filled until voters—who had handed the Senate back to the GOP two years earlier, after having reelected Obama two years before that—had their say.

This seemed like unprecedented obstructionism, but, as we’ve seen, plenty of nominees have never gotten hearings or votes—and the last time a Senate confirmed a nomination made by a president of the opposing party to a high‐​court vacancy arising during a presidential‐​election year was in 1888. Just like the Senate could decline to take up a bill passed by the House, or a treaty signed by the president, it could surely decide how to exercise its constitutional power of “advice and consent.” Democratic senators had said as much; both then–Judiciary Committee Chairman Joe Biden in 1992 and now–Minority Leader Chuck Schumer in 2007 had argued that a Republican president shouldn’t get to appoint justices in the last year of his term.

As we know now, McConnell’s gambit worked: Not only did it not hurt vulnerable senators running for reelection—Judiciary Committee Chairman Charles Grassley won by nearly 25 points in supposedly swing‐​state Iowa—but the Supreme Court vacancy held the Republicans together and provided the margin for Donald Trump in key states. Trump rewarded that part of his electoral coalition with the nomination of Neil Gorsuch.

Justice Gorsuch ended up being confirmed 54–45, but only after the Senate decided, on a party‐​line vote, to exercise the “nuclear option” and remove filibusters for Supreme Court nominations. That returned Senate procedures to what they were 15 years earlier. A Senate majority can still stall a nomination—we could see more Garlands—but not a minority.

The elimination of the filibuster for Supreme Court nominees was the culmination of a tit‐​for‐​tat escalation by both parties, with partisan disagreements over when it all began. The Gorsuch denouement was retaliation for the Garland blockade, which in turn followed Harry Reid’s nuking of filibusters for lower‐​court and executive‐​branch nominees in 2013. That came a decade after Reid used the tactic to block George W. Bush’s nominations—most notably Miguel Estrada, whom Democrats didn’t want to see in position to become the first Hispanic justice (not counting Benjamin Cardozo, whose ancestors were Sephardic Jews from Portugal).

More significant, by filibustering Gorsuch, Democrats destroyed their leverage over future, more consequential vacancies. It’s not at all clear that moderate Republican senators would’ve gone for a “nuclear option” to seat Brett Kavanaugh in place of Anthony Kennedy—I think it’s pretty clear they wouldn’t have—but they didn’t face that dilemma. What’s more, they won’t face it if President Trump gets the chance to replace Justices Ginsburg (86 years old) or Stephen Breyer (81), which would represent an even bigger jurisprudential shift.

Given the battle we saw over Gorsuch and Kavanaugh, too many people now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically coherent than ever. And confirmation hearings will continue to be kabuki theater, educational about legal doctrine but not illuminating the nominee’s judicial philosophy.

Why is all this such a big deal? Why all the focus on one office, however high? Sure, 2016 and 2018 were election years, but it’s not like either governance or politics grinds to a halt. If Secretary of State John Kerry had died or resigned in the last year of the Obama presidency, it certainly would’ve been an important political moment—with Republicans grilling his would‐​be successor on President Obama’s foreign‐​policy record—but there’s no doubt that the slot would have been filled if someone with generally appropriate credentials were nominated. Even a vacancy in the vice presidency wouldn’t have lasted unduly long, though Republicans would’ve jockeyed to extract concessions for not having Speaker Paul Ryan be first in the presidential line of succession.

But executive appointments expire at the end of a president’s term in office, while judicial appointments long outlast any presidency. A president has few, if any, constitutional powers more important—at least in domestic policy—than making judicial appointments. Justice Scalia served nearly 30 years on the Supreme Court, giving President Reagan’s legal‐​policy agenda a bridge well into the 21st century. An important ruling on nonprofit‐​donor disclosures was made in April 2016 by a district judge appointed by President Johnson (Lyndon, not Andrew).

Pundits always argue that judicial nominations should be among voters’ primary considerations when choosing a president. But the Supreme Court’s future truly did hang in the balance in 2016. The election was so consequential in part because people knew that its winner would have the first chance in more than 25 years to shift the Court’s ideological balance, either strengthening the conservative majority or tilting it to the left. Indeed, the Court now stands starkly split 5–4 on many issues: campaign finance, the Second Amendment, religious liberty, and regulatory power, to name just a few. If Hillary Clinton had been able to appoint a progressive jurist—even a “moderate” one—jurisprudence in these areas would be headed in a substantially different direction.

And that goes just as much or more for the lower courts, which decide 50,000 cases annually even as the Supreme Court decides fewer and fewer. Every four‐​year term, the president appoints about a fifth of the judiciary. Last Inauguration Day, there were already 105 vacancies—and that has risen to about 150. When Obama took office, only one of the 13 appellate circuit courts had majorities appointed by Democratic presidents; when he left, nine did. Donald Trump has now begun to reverse that, with one circuit (the Philadelphia‐​based Third) having flipped and others on the brink. Indeed, this administration set a record with 30 circuit judges confirmed in its first two years—about the same as Bush and Obama combined at that point in their presidencies.

Senatorial brinksmanship over judges and justices is symptomatic of a much larger problem that began long before Kavanaugh, Gorsuch, Garland, Clarence Thomas, or even Bork: the Supreme Court’s own self‐​corruption, aiding and abetting the warping of federal power by Congress and the executive branch. The judiciary now affects public policy more than it ever did—and those decisions increasingly turn on the party of the president who nominated the judge or justice.

Even if politics has always been part of the process, and even if more judges were rejected in our country’s first century than its second, we still feel that something is different now. Confirmation hearings are the only time that judges go toe‐​to‐​toe with politicians—and that’s definitely a different gauntlet than even President Tyler’s nominees ran. Is it all about TV and Twitter, the 24‐​hour news cycle and the viral video? Is it that legal issues have become more ideologically divisive? No, it’s not that there’s been a perversion of the nomination process, more demagogic political rhetoric, or even the novel use of filibusters. Those are consequences of a larger phenomenon: As government has expanded, so has the importance of the judiciary.

Under the Constitution by which the country lived its first 150 years, the Supreme Court hardly ever had to strike down a law; congressional debates forestalled most unconstitutional measures. But as the Court has allowed the federal government to grow, so has the Court’s own power to police the federal programs its own jurisprudence enabled. For example, the idea that the General Welfare Clause justifies any legislation that gains a congressional majority—as opposed to limiting federal reach to truly national issues—emerged in the Progressive era. After 1937’s so‐​called switch in time that saved nine—when the Court began approving grandiose legislation of the sort it had previously rejected, perhaps in order to forestall FDR’s court‐​packing scheme—no federal legislation would be struck down until 1995.

It was the Court that thus politicized the Constitution, and the confirmation process, by laying the foundation for judicial mischief of every stripe—particularly by letting laws sail through that should be struck down. As the Court has let both the legislative and executive branches swell beyond their authorized powers, so have the laws and regulations that it now interprets. Competing theories battle for control of both the U.S. Code and Federal Register, as well as determining—often at the whim of one “swing vote”—what rights will be recognized. So of course judicial confirmations are going to be fraught.

At the same time, courts are reactive institutions: Even the most “activist” need a case or controversy, rather than reaching out to make rulings out of thin air. It’s Congress that’s the aggressor, both daring the courts to strike down significant pieces of legislation and passing broad legislation that leaves it to the administrative state to produce the legal rules by which people live their daily lives.

Senator Ben Sasse gave a pithy summary of this dynamic in his opening statement at the Kavanaugh hearings:

For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch. The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don’t do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that’s why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system.

In other words, Congress doesn’t complete its work; rather, it passes the political buck to a faceless bureaucracy and to a court system that has to determine whether whatever federal agencies devise is within spitting distance of what the Constitution allows. What’s supposed to be the most democratically accountable branch has been surrendering its responsibilities and avoiding hard political choices since long before the current polarization.

Indeed, the “gridlock” of the last decade is a feature of a legislative process that’s meant to be difficult by design, but it’s been compounded of late by citizens of all political views being fed up with a situation whereby nothing changes regardless of which party is elected. Washington has become a perpetual‐​motion machine. The courts are the only actors who can throw in a monkey wrench from time to time, a deus ex machina correcting an otherwise unholy system. That’s why people are so concerned about the views of judicial nominees—and why there are more protests in front of the Supreme Court than in Congress.

It’s also why the judicial nomination and confirmation processes are going to be more cognizant of partisan considerations. This wasn’t a problem when partisanship mainly meant rewarding your cronies. But it’s a modern phenomenon for our parties to be so ideologically polarized, and therefore for judges nominated by presidents from different parties to have notably different views on constitutional interpretation.

How Do We Fix It?

Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, changing the size of the Court, setting new rules for the confirmation process, and more.

The most frequent suggestion is to institute term limits, which has the advantage of 1) predictable vacancies rather than the current randomness and 2) each nomination being “worth” less because the justice would serve fewer than the 25 or 30 years to which we’ve become accustomed. If justices had staggered 18‐​year terms, for example, we could have vacancies every two years and each presidential term appointing two justices. That sounds pretty good, but it would almost certainly take a constitutional amendment to accomplish. Moreover, it turns out that 18‐​year term limits are unlikely to have really changed the ideological balance of the Court over the past 50 years or so. It may not even have decreased the justices’ average age, because people in their 60s would start being considered again. Still, if it would increase public confidence in the Court, it’s worth contemplating.

Next we come to expanding the size of the Supreme Court. The idea is identified with left‐​wing activists sore about the Kavanaugh confirmation, as well as historical baggage from FDR’s day, but the concept has no inherent partisan slant. Indeed, presidents of both parties would continue nominating however many justices there are. In addition to issues of judicial administration—the Court could hear more cases and more efficiently process certiorari petitions if it had more members—there would logically be less significance to each of, say, 19 seats than nine (and presumably fewer 10–9 decisions than 5–4 ones now). We could also set an even number of justices, as some countries do, which would require at least a two‐​vote margin to take any action. And no constitutional amendment is required to adjust the Court’s size; we’ve had as few as six and as many as 10.

The problem comes in getting to the new number, whatever it is. If we were designing a judiciary from scratch, we could depart from the current Supreme Court structure in all sorts of ways. But we’re not, so how do you get to an expansion of any kind that won’t result in a similar expansion the next time the opposing party is in power? Even if today’s court‐​packing Democrats were to offer a deal whereby each party gets to pick nominees, the GOP would turn it down because a 5–4 ratio is better than a 7–6 one. Presumably you would need a transition period, such that the additional seats only open up far enough into the future that we don’t know who’ll be in the White House. Politicos tend to be risk‐​averse, so I’m not sure that 10 years or, say, 12 (three presidential terms) would be enough. And even if one of these “delayed expansion” plans went through, wouldn’t the same sort of natural attrition that ultimately benefited FDR—by the end of 1941, only two of the justices he inherited in 1933 remained—also work its magic to change the Court’s balance to reflect long‐​term political developments? So we’re back to simple (and nakedly partisan) tit‐​for‐​tat escalations.

And then there are some truly radical possibilities. How about a “college of justices” whereby there are no permanent justices, but circuit judges who are randomly assigned to the Supreme Court for a set time period before returning to their previous courts? It’s an intriguing idea proposed by law professors Daniel Epps and Ganesh Sitaraman, but there would be less continuity on the Court—with jurisprudential zig zags that undermine the rule of law. And this would compel more nomination battles. For if all circuit judges who potential justices in an even more direct sense than they are now, then every circuit nomination will be marginally more fought over. Getting rid of permanent justices just shifts the political and media targeting instead of dispersing the toxic cloud.

Well, what about an expanded Court but one divided evenly among Republican appointees, Democratic appointees, and “neutral” justices who have to be picked by unanimous vote of the “partisan” justices? This is another Epps‐​Sitaraman proposal, which again gets points for creativity but loses many more for making things worse as far as Supreme Court politicization goes. After all, if two‐​thirds (or whatever portion) of the justices are explicitly designated with a partisan label, how does that help free the judiciary from political taint?

Setting aside Court structure, what about the confirmation process itself? Should we have rules for how many days after a nomination there must be a hearing and then a vote? Or maybe we should do away with hearings altogether, particularly given the nominees’ voluminous paper records these days? I’m not sure any of these formalistic changes would do anything given that it’s not so much a breakdown in “rules” that caused the poisonous atmosphere surrounding judicial nominations, but the other way around. Senators came to see judicial nominations as just as much or more important than legislation—correctly, in my view—so they started applying the same bare‐​knuckle political plays to them.

Outside‐​the‐​box thinking should be commended and proposals to ameliorate the confirmation process or reimagine the Court shouldn’t be discounted lightly, even if—particularly if—cosmetic or easy changes would enhance public confidence in the Supreme Court’s integrity. I’m willing to consider anything that would help show that there’s a difference between interpreting the law and making it, between judging and legislating

In the end, all of this “reform” discussion boils down to rearranging the deck chairs on the Titanic. And this Titanic is not the judicial‐​appointment process, but the ship of government. The fundamental problem we face, and that the Supreme Court faces, is the politicization not of the process but of the product. The only way judicial confirmations will be detoxified, and the only way we reverse the trend whereby people increasingly see judges as “Trump judges” or “Obama judges,” is for the Supreme Court to restore our constitutional order. Jurist, heal thyself!

Yes, depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backward to ratify the constitutional abuses of the other branches.

The judiciary needs to once again hold politicians’—and bureaucrats’—feet to the constitutional fire by rejecting overly broad legislation of dubious constitutional warrant, thus curbing administrative‐​agency overreach and putting the ball back in Congress’s court. And by returning power back to the states, and the people. After all, the separation of powers and federalism exist not as some dry exercise in Madisonian political theory but as a means to that singular end of protecting our freedom.

These structural protections are the framers’ best stab at answering the eternal question of how you empower government to secure liberty while also building internal controls for self‐​policing. Or, as Madison famously put it in Federalist 51: “In framing a government which is to be administered by men over men [because men aren’t angels], the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”

The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. There’s no more reason that there needs to be a one‐​size‐​fits‐​all health‐​care system, for example, than that zoning laws must be uniform in every city. Let federal legislators make the hard calls about truly national issues such as defense or interstate commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas, California be California, and Ohio be Ohio. That’s ultimately the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

Ilya Shapiro

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. He is currently working on a book about judicial confirmation battles and Supreme Court politics, due out from Regnery in 2020.