Reviews | The Supreme Court is in a dangerous downward spiral


The confirmation process for Supreme Court nominees is broken, as is, I fear, the Supreme Court itself. These mutually reinforcing developments were both highlighted this week.

Not so long ago, confirming a Supreme Court nominee was not a predictable party-line affair, with a handful or fewer defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators were evenly split on the nomination, 22 for and 22 against. This lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.

The Senate now stands on the brink of a dangerous new reality, in which a Senate controlled by the party opposing the President could simply refuse to confirm a candidate, period. A tradition of respecting presidential prerogatives – of believing that elections have consequences, as Sen. Lindsey O. Graham (RS.C.) liked to say in one of its earliest incarnations – is over. If the majority in the Senate is large and unified enough, it will challenge the president.

Wait and see. Republican senators were ready to caricature Ketanji Brown Jackson’s record in search of an excuse to vote against her – even if her addition to the court won’t affect her ideological balance. Imagine what would happen if a Republican appointee walked out of court during a Democratic presidency. In fact, no need for imagination. Consider what the Senate did — or didn’t do — when Merrick Garland was appointed in 2016 to replace the late Antonin Scalia.

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We could debate endlessly how things escalated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats lament Garland’s blockade and Barrett’s rushed confirmation. Neither side has clean hands.

The result is a fiercely partisan process that demeans the Senate and politicizes the court, making it a creature of political will and power. At this point, neither party has any incentive to give up this maximalism. The time was (beginning with Robert H. Bork) the Senate debated whether a nominee was in or out of the judicial mainstream. This assessment was in the eye of the beholder, sure, but at least it was a nod to deliberation.

It’s so 1987. The judicial philosophy is now aligned with the political party like never before in the Court’s history. It is therefore not surprising to witness the same phenomenon – the raw exercise of power overriding normal processes – taking place on the ground itself. Standards are ground in both branches.

A striking manifestation involves the Conservative majority’s use of the Emergency File – what is known, in more sinister terms, as the Shadow File.

The work of the tribunal is supposed to be conducted after a full written statement and argument and substantiated by written opinions. It has rules, or is supposed to, about when to step in to arbitrate disputes before they get to that stage, and, of course, that sometimes has to happen. But increasingly, the court is using its emergency powers to intervene in disputes on the majority side, outside of normal procedures and without a written explanation.

So the week of Jackson’s confirmation saw five conservative justices — despite dissenting from three liberals and the chief justice — intervene in a case still pending before a federal appeals court.

Five conservative justices voted to restore a Trump-era clean water rule that limited states’ ability to block potentially polluting projects. The three remaining liberal justices – joined, notably, by Chief Justice Roberts – dissented, complaining that the court was abusing its emergency powers by reinstating the rule without the necessary evidence to avoid “irreparable harm”, as required by court precedent.

“This makes the Court’s emergency role not at all for emergencies,” Judge Elena Kagan wrote. It may sound sweet, but deal with Supreme Court cases, and while Roberts has voted with the Liberals before in such cases, it was the first time he’s joined a dissent criticizing the misuse of the role ghost.

Perhaps the district court judge in the case erred in going further than the Biden administration requested by overturning the Trump-era settlement, not simply sending the case back to the Environmental Protection Agency as it worked on a new version of the rule.

That’s not the point. The point is, courts have rules about when to grant emergency aid — and the test isn’t just whether the lower court got it wrong. An appeals court is reviewing the district judge’s decision and, applying these rules, refused to prevent it from taking effect. As Kagan explained in his dissent, “This Court may stay a decision under review by an appellate court ‘only in extraordinary circumstances’ and ‘based on the most important considerations’. ”

No urgency justified the intervention of the Supreme Court here. He just had the votes to act anyway.

When norms give way to partisanship and ideology, when unbiased rule enforcement gives way to achieving results by any means, institutional legitimacy is eroded. Immediate gain is naturally tempting. The institutional damage may not be immediately obvious, but it is also undeniable that it will be difficult to repair.

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