The US Supreme Court in the 21st Century

The phrase “Save SCOTUS” began appearing in my inbox and Twitter feed fairly regularly within a few days of Justice Kennedy’s retirement.

I realize that it’s just a hashtag, probably grasped at in the same embarrassing, unplanned haste that has characterized most liberal response to a circumstance for which concerned parties should have had plans ready long before now.

Yet I believe that the phrase does, if only by accident, frame the related events much more aptly than most of its promoters have even considered.

We are in fact confronting the end of the US Supreme Court as it has existed for as long as I can recall. For those who wish that kind of institution to persist, the very last opportunity to save it is indeed quickly expiring.

Spoiler alert: I’m pretty sure the Supreme Court of the late 20th century is beyond saving, no matter who replaces Kennedy. Although that institution’s fundamental conservatism has resisted the changes around it for nearly two decades, a different Supreme Court is emerging in the 21st century, like it or not.

Going from personal experience and a limited awareness of the court’s history, the US Supreme Court seems to have maintained a stable equilibrium for at least 30 years, possibly longer. Two main features characterized this equilibrium:

  1. A court with a majority of Republican appointees, but enough Democratic appointees and enough unpredictability that all factions could believe they had a fair shot at a favorable ruling in any given case.
  2. An appointment process that maintained both approximate partisan balance on the court, and maintained the unpredictability by sifting out extreme ideologues, who would be unable to meet a threshold of substantial minority party support in the Senate.

These features are no longer functioning. The party of McConnell effectively dynamited the second feature, by rejecting an opposition president’s moderate nominee in favor of the opportunity to install an extreme ideologue later on through a bare-majority partisan vote. No undoing that, really.

The first feature doesn’t look a whole lot more viable. The Republican Party has already decided that a Supreme Court which thwarts their preferences with any regularity whatsoever is essentially illegitimate. I perceive the Democratic Party beginning this reevaluation much later, but potentially completing it much faster. Whatever happens in the weeks ahead.

Even if Democrats’ one possible hail-mary play succeeds—if against all odds Susan Collins and her talking-stick bring together 51 senators to demand some sort of old-fashioned moderate appointee that keeps the court’s rulings uncertain for a few more years—it will ultimately be like trying to put Humpty Dumpty together again.

The 20th century court’s continued existence ultimately depended on things like forbearance, trust, comity, which are all but gone from America’s national politics. I suppose that it depended, in another sense, on a consensus that other ways of doing things, other types of Supreme Court, were simply unthinkable.

At this point, the unthinkable has been thought of. There’s definitely no undoing that.

Precisely what will replace the 20th century court, I don’t know, and it may not even be a stable equilibrium again for quite some time. But people are talking openly of and even working openly toward different Supreme Courts. The pace has picked up; the patience that was formerly willing to wait 15, 20 years or more until “our side” gets a turn again is finished. This seems to be lost on the many pundits who write with such obsolete certainty about “shaping the court for a generation” or “a new Lochner era.”

Such predictions seem at odds with both recent history, and the broader history of the court. I don’t know enough Supreme Court history to say quite how long its now familiar equilibrium may predate the late 20th century. But I know enough about that history and about the US Constitution to know that this is not the only kind of court that can exist, or the only kind of court that has ever existed.

I can count at least three options for the other branches of government (or in one case the executive branch alone) to overcome the seeming omnipotence of lifetime-appointed justices on the nation’s highest court. All three could happen very quickly.

Whether or not they will happen, I don’t know. But I am confident that the notion of a Supreme Court which is vulnerable to being turned dramatically away from its familiar pattern of behavior, yet is otherwise wholly proof against any kind of change to the rest of civil society’s relationship to that court, seems like a product of very shortsighted, simplistic thinking.

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