Scalia’s death

Justice Scalia was a solid advocate of originalism in constitutional interpretation (see my post here for what that means). This often put him on the conservative side of things, and in favor with the GOP. After Scalia’s death, and with Obama still in the white house, the GOP quickly declared their intent to stonewall any nomination for a replacement for Scalia from Obama in hopes that a Republican president could take office in 2017 and appoint someone like Scalia.

Many decried the GOP’s preemptive move on an Obama nominee. To many it seemed crazy, partisan, unprecedented, extreme, and unconstitutional. It may be partisan, it may unprecedented, and it may even be extreme, but it’s certainly not crazy (nor is it unconstitutional).

Truthfully, the partisan nature of the move is what makes it not crazy.

Supreme politics

The courts were originally designed to be separated from policy making. The legislature and executive would dual things out, but the judiciary was to be a bit less potent in that arena. Over our nearly 240 years of history, things changed drastically. The court consolidated more and more power, and it has taken a role not just in interpreting and adjudicating on policy, but creating it.

Examples of this include rulings on segregation, abortion, marriage, health care, and heaps of other things. On a case by case basis, you may approve of their decisions, but each decision inches the court toward becoming a “political” entity.

If the court has become a more “political” entity (as we have no doubt enabled, and often demanded), then political rules apply. This means that a political party can take a blatantly political stance on who will fill a vacancy on the court and it’s fair game. The usual deal-making with the “other side” that happens in legislatures can be an acceptable practice. Rallying for public support or opposition to candidates is reasonable.

You might not like the political reality of the supreme court, but this is the natural consequence of our decisions to allow or demand political action from the justices. Every time we look to the supreme court to decide policy issues for us, we morph the court into the same type of political machine that lives in the capital building across the street.

What if you like the politics?

Most people seem upset about the politics that now surround the supreme court, but perhaps you think that it’s acceptable. Maybe you even think that it’s an efficient way to get some things done, especially when there’s gridlock in congress. Well, there are more issues than just annoying party-politics that make a politicized court dangerous.

The court was designed in a way to run optimally as a non-partisan entity. Even if you think that a court with policy-writing power is a good idea, you must consider the fact that we’re playing with fire.

Had the framers intended the court to write policy, they might have set it up differently. They might have placed a different number of judges on the court. They might have altered how judges are selected, possibly with more public input. They might not have provided life-terms. They might have given different guidelines on how to adjudicate. They might have made supreme court decisions appealable to one or several parallel courts, or perhaps even to a coalition of lower judges. They might have altered the rules for overturning court decisions.

The system put in place for our courts worked under different assumptions than what we’re using now, which is part of why so many divisive issues are staying divisive. It’s a natural consequence of altering things without a clear picture (see here for my explanation of some strategic principles at play).

Originalism as the alternative

This is why Scalia’s view on constitutional interpretation was so important. Policy creating shouldn’t be part of the judicial branch, and originalism is the only path to such success. If judges rule based on what people originally understood the laws to be, then the politics around it would be irrelevant to the justices regardless of who appointed them. If people lobbied their legislatures instead of protesting at the supreme court, the power would stay in the hands of those more accountable to the people. We also wouldn’t have a world where it’s reasonable for the GOP to preemptively slam the Obama nominee.

Nine justices on a court shouldn’t be the end-all of our most important decisions. We should be the ones to take responsibility and endure the challenges of maintaining a functioning democracy. That’s our best shot at protecting our rights to life, liberty, and the pursuit of happiness.

Yes, it’s constitutional

For whatever reason, lots of people seem to think that if something big happens that they don’t like, that it must be against the constitution. This ugly paradigm again dribbled out of the mouths of the media when they accused the GOP of abandoning its constitutional duties. Here’s what the constitution actually says:

He[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court…

There’s no point in having the advice and consent of the senate unless they have the right and power to say “no.” They can say no for as long as they want/have the power to do so. There’s no constitutional obligation to say “yes” to whoever gets nominated, and there’s no constitutional violation for preemptively announcing an intent to resist.

You might not like it (or you might love it), but that has nothing to do with whether it’s constitutional.

It’s also worth noting that the constitution may stay better intact if the GOP really does hold out for a year. Unless by some miracle Obama nominates a legitimate originalist, any GOP nominee will be more likely to support and uphold the actual constitution than Obama’s pick. If we’re going to argue about constitutionality, let’s talk about which justices stick to what it says.

Precedent is irrelevant

A quick note on precedent. I’ve seen heaps of different arguments both for and against the idea that the GOP’s move has precedent. Here’s the thing: precedent is irrelevant. Lots of things are unprecedented, but that doesn’t immediately disqualify them, especially in the political arena. The simple fact is that we’ve allowed policy making to leak into the court, so we must now deal with the consequences. The fact that we might be hitting a new level of extremity isn’t an alarm of a significant, sudden switch from where we were before, but an indication of how far the political needle has slowly climbed in the courts.

Perhaps if we are careful in ensuring our judges interpret law as originally understood, we can suck the politics back across the street into the congressional buildings.

Keep seeking truth.

Photo of Supreme Court Facade by UpstateNYer