The eight member Supreme Court as an expression of congressional disgust

In defending their unwillingness to proceed with the nomination of Merrick Garland to the Supreme Court, Republican Senators argue that the confirmation of a new Justice should await the upcoming election. “Let the people decide” has become the mantra.

It’s an okay argument, made stronger by decades of Senate practice regarding the treatment of judicial nominees in a presidential election year. But it implies that there should be no obstruction of a nominee once a new president takes office.

That’s not a concession I’m eager to make. Nor does precedent require that we make it. Following the 2000 election, the Democrats blocked numerous appeals court nominees of President Bush. (There was no Supreme Court nominee for them to block).

But on what principle could the Senate obstruct a Supreme Court nominee appointed by a recently elected president?

Such obstruction could, I believe, be justified as a means of expressing disapproval of the Court. The branches of our federal government have various means of expressing disapproval of one another. The Supreme Court can do so easily by striking down legislation passed by Congress and executive action by the president.

In a given case, the Court isn’t so much expressing disapproval as simply deciding the matter before it. But a string of decisions can, and probably should, be viewed as an expression of disapproval. The most obvious example is the line of cases striking down New Deal legislation in the 1930s.

The president can express his disapproval of Congress in a number of ways. He can refuse to consult with it, for example. Obama shows his disdain by circumventing congressional will through executive orders. There should be limits on his ability to do so. However, as I noted yesterday, it seems that the four liberals on the Court don’t perceive any meaningful ones. (Because this stance undermines the authority of Congress, a strong congressional expression of disapproval seems imperative).

Congress has ways of thwarting the president. Refusing to confirm nominees is one. Withholding funds is another.

But how does Congress express its disgust with the Supreme Court? Trimming its budget is one way, but it has limits. The nation needs a functioning federal judiciary, including a functioning Supreme Court.

In the present circumstances, keeping Court membership at eight Justices seems like a good response to the way the Supreme Court is behaving. Even an ideologically divided eight member Court can resolve the big majority of cases before it because most cases don’t involve highly charged ideological issues. Thus, keeping Court membership at eight won’t throw a monkey-wrench into the system.

However, the current Court will be hard pressed to render precedent-setting decisions in big, controversial cases. In other words, its ability to do harm will be severely constrained.

I’d like to think that the liberal bloc might receive and take serious note of the message that the Senate is disgusted by its left-wing, result-oriented solidarity (such solidarity doesn’t quite exist among the conservative bloc — Justice Kennedy votes this way and that, and Chief Justice Roberts voted with the liberals in both of the Obamacare cases). I’m not optimistic, though.

Sooner or later, one side will obtain a majority on the Supreme Court. If Republicans win the White House and the presidency, I’ll be hoping it’s sooner. But the idea of holding on to the eight-Justice Court for a few years isn’t something conservatives should rule out.


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