Supreme Court

The Nuclear Age: The Supreme Court May Never Be The Same

Frankly, we'll be lucky if this is the worst occasion we have to use the word "nuclear" before this presidency ends.

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The "nuclear" moniker is unfair. It's more... landscape altering eruption.

The “nuclear” moniker is unfair. It’s more… landscape altering eruption.

Conservatives across the country are overjoyed at the demise of the filibuster, that last refuge of the scoundrel Democrats who tried to block Judge Gorsuch’s triumphant ascent to the Supreme Court. Liberals, meanwhile, are seething at the final act of villainy — literally changing the rules of the game — in a theft that began when Republicans historically refused to perform their constitutional duty and consider the nomination of Judge Merrick Garland.

Whatever. It’s happened. Frankly, we’ll be lucky if this is the worst occasion we have to use the word “nuclear” before this presidency ends.

Way back in 2013, when liberals were overjoyed at the partial demise of the filibuster and conservatives saw it as villainy (oh, how the times have changed), I warned that Harry Reid’s mealy mouthed half-measure may not prevent this day, but would certainly provide Mitch McConnell all the political cover he could ever need to blow it up forever. Personally, I didn’t think we’d be here today. I thought the Democrats would find a way to “Alito” him — pass cloture and then vote against confirmation. On the other hand, some thought Democrats had no choice but to trigger this moment.

But what happens to the future of the Court now that we’re here? Elie Mystal thinks we’re staring at a Democratic court-packing plan once the shoe’s on the other foot. He’s wrong, of course, because if there’s any political will for court-packing, we’ll see it before 2018. Why wouldn’t the GOP gather those rosebuds while they may? Trump’s poll numbers suggest the waning hours of the present congress may present the GOP’s William Marbury moment.

But assuming such a radical move isn’t in the offing, what else might result from the death of the 60-vote threshold?

Nominees to the Court will become more wildly partisan: It’s hard to say this wasn’t already happening, at least on one side. Haynsworth? Carswell? Bork? Remember that from 1969 on, people like Rehnquist, Scalia, and Thomas were the relative consensus picks. In retrospect, Samuel Alito’s curious confirmation process, where he received fewer than 60 votes despite surviving cloture, probably marked the last stand for the filibuster. We should have seen that conservatives would continue pushing the envelope and Democrats were growing increasingly uneasy.

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Democrats, on the other hand, have generally hewed to nominating moderates — it’s telling that many of the core “liberal” votes on the Court over the past twenty years came from Republicans like Justices Stevens and Souter, with occasional assists from Justices O’Connor and Kennedy — and the gloves may well be off now. Generally speaking, Democrats are better off as the “adults in the room” because it’s hard to sell America on the principle that government is good when you’re rolling in the same mud. But if 51 votes is the new normal, there’s no reason not to introduce more judicial philosophies. Introduce some of that “viewpoint diversity” to the Court by nominating a noted critical legal studies or critical race scholar.

Senate campaigns will focus much more on the Supreme Court: Nope. This is just the wishful thinking of a legal nerd. If Hillary Clinton couldn’t win by making her election about the Grim Reaper hovering over Ginsburg, Breyer, and Kennedy in last year’s SCOTUS portrait, then Nevada’s not going to choose a Senator over it. Plus, the Nevada election might feature more substance than “please don’t say mean things.” That said, this split-ticket voting might lose its luster for a sliver of well-informed voters as they start to realize that divided government will make the ordeal of Merrick Garland’s nomination a routine occurrence.

Democrats will start getting serious about term limits: With the entry barrier to the Supreme Court at rock bottom, people may get creative about stanching the harm of a potential 32-year-old crazy person reaching the bench. Most people think putting limits on the Supreme Court would require a constitutional amendment, but in Uncertain Justice (affiliate link) Laurence Tribe and Joshua Matz suggest that imposing 18-year limits would require simple congressional action to satisfy the constitutional stricture of life tenure without demotion. The Tribe and Matz suggestion creates something akin to senior status, whereby only the judges within their 18-year term would sit on the active SCOTUS panel, while older judges would ride circuit and continue to serve on the Court in the event of recusal (which is another advantage… the Supreme Court could have real recusal standards). Ted Cruz is already on the record for term limits, but now that Democrats realize they can no longer depend on their “Blue Wall” to maintain the White House, Cruz might get some bipartisan support.

Whatever happens, the Supreme Court will change. And, to borrow from my colleagues earlier title, it’s not clear anyone is ready for what’s going to happen next.

Republicans Can Bust The Gorsuch Filibuster, But Can They Take What Happens Next?
And Boom Goes The (Nuclear) Dynamite: Previewing The Derptastic Sound Bytes You’re About To Hear
The Only Gorsuch Surprise Is That Anyone Still Expects A Surprise

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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