The furious noise over a new nomination by President Trump to the US Supreme Court (SCOTUS) is all about a subject familiar to readers here. Namely the two basic issues in politics or indeed wider life:
Who decides who decides?
If X is tasked to Decide, the person or body appointing X (as opposed to Y) or giving X that authority of course is there in the background Deciding who Decides.
See eg Brexit. The European Commission primly presides over the rules. But the EU member states ‘ultimately’ decide who’s on the Commission, and it’s their collected instincts and choices and unease with their own voters that will shape the final deal, if there is one.
So in the USA, a duly elected Congress passes a law and a duly elected President signs it off. Someone out there is not happy with its provisions, and launches a legal challenge on the basis that the new law is unconstitutional. The issue wends its way to the Supreme Court. And they decide.
See this famous or infamous example: is a penalty imposed by the state for not doing what it wants a tax? The Supreme Court on a 5-4 majority said yes:
But does that make any sense? How can a penalty also be a tax?
That was the simple, stark conclusion from the dissenting Justices: Scalia, Kennedy, Alito, and Thomas. “We have never held–never–that a penalty imposed for violation of the law was so trivial as to be in effect a tax,” they wrote. “We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power–even when the statute calls it a tax.” The two are mutually exclusive, they said.
Roberts disagreed — and his distinction swung the case. Roberts argued that the penalty resembled a tax in a few ways. First, it raises money (about $4 billion a year according to the IRS) just like a tax. Second, it’s paid to Treasury when households file their tax returns. Third, the fee is calculated based on taxable income and number of dependents, like taxes.
It follows that for a lot of purposes the Supreme Court does indeed Decide.
Thus the ghastly rows over who is on the Supreme Court. It’s a battle over Who Decides Who Decides.
A court with a supposedly ‘built-in conservative’ majority may make very different rulings to a court with a supposedly ‘liberal’ majority, on the biggest policy issues going to privacy/abortion, employer/employee rights, healthcare, marriage, the limits of federal power and so on.
In practice these SCOTUS judges are a quirky lot and many cases are decided by unanimity or a strong majority that cuts across any supposed ‘ideological’ preferences. That crucial Obamacare penalty/tax issue was decided in favour of a tax by Justice Roberts siding with the ‘liberal’ group even though he was nominated by President Bush and seen by Democrats as a cruel conservative. Boo! Hurrah!
Was this Roberts decision part of a wider objective to maintain the Court’s public reputation for impartiality? Or some sort of deeper philosophical attitude favouring judicial minimalism rather than judicial activism?
This new appointment arises because Justice Kennedy is standing down. As it happens, he was a President Reagan pick so on one view President Trump is merely offered the chance to replace one supposedly more conservative judge with another. But over the years Kennedy has sided with the ‘liberal’ tendency on some big ones, hence today’s liberal fury that this swing-vote option may be lost to them for decades. Imagine the Left’s consternation should one or more of the SCOTUS liberal group also die or retire, offering President Trump the chance to define the approach of the Court far into the future.
What might that Court in fact do? It would be likely to take decisions based on what the US Constitution says rather than on what the Court thinks it might have wanted to say based on mysterious legal penumbras and emanations some Justices alone can identify. This stricter less ‘activist’ approach is called ‘originalism’:
Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.
I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.
Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.
No one should believe that any judge is entirely free of ideological bias, but there is a profound difference between judges who approach a legal conflict with the question, “What does the Constitution mean?” and those who instead ask, “What does justice demand?”
Thus the liberal-Left-Democratic side now has two options.
One is to try to block any Trump nomination they don’t like, ie 200% of all Trump nominations. The problem here is that the Democrats themselves loosened the blocking rules in the Senate, so there is no credible procedural way to do that. And in some states facing key elections this year such a Trump nomination may be quite popular, so running on a ticket of blocking that could be a vote-loser.
Another is to take the hit with a piercing screech and then aim to get back into power and change the SCOTUS rules themselves, so that a Democrat president can trump the Trump decision: make the Court bigger by appointing a team of new ‘liberal’ judges. Problem? Solved!
This idea was tried back in 1937 by President Roosevelt when SCOTUS decisions were blocking key New Deal laws. It created a terrific furore, even without Twitter. It looked like ‘cheating’. Worse, it looked like sacrificing once and for ever a key principle of US democracy, namely the independence of the Supreme Court.
That massive row ended after another Justice Roberts switched sides and SCOTUS stopped striking down New Deal legislation:
The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends.
On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.
The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been.
At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.
So even if President Trump gets the chance to replace not only Justice Kennedy but also (say) one ‘liberal’ Justice in the coming years, it will take a bold if not deranged Democrat Party to campaign on the ticket of stacking SCOTUS to advance Democrat ideas. That might well win the noisy support of sundry urban ‘social justice warriors’. But more widely it could be ruinous.
All this of course is depressing. It represents the ‘politicisation’ of literally everything. The law is not ‘neutral’ or ‘independent’. But the Left believe that literally everything IS political, and so they force that idea into every nook and cranny of our lives.
Which for them is fine – until President Trump wins and starts behaving in exactly the same way. For the time being he decides who decides.