In the wake of Justice Ruth Bader Ginsburg’s passing last week, the national discussion has pivoted from the pandemic to the Supreme Court, and the moves Senate Republicans and President Donald Trump are making to fill the vacancy on the high court. Democrats are absolutely correct in calling out Senate Majority Leader Mitch McConnell, R-Ky., for reversing his position from 2016, and Republicans are absolutely correct arguing that filling the Court’s vacancy is the constitutional obligation of the president and the Senate. However, while these two positions occupy the vast majority of headlines, the most vital lesson to be learned is that of prudence, of restraint and of the harm of nearsightedness.
Yet before launching into the present day, it is important to consult the annals of history. Article III of the Constitution establishes the judicial branch of the federal government to consist of “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Critically, the Constitution does not mandate a set number of justices to preside over the Court.
The first Congress passed the Judiciary Act of 1789, which established the federal judiciary and set forth specific rules for the Court. Notably, it declared that “the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum.” Only after the Judiciary Act of 1869 did the Court adopt the current distribution of judges –– one chief justice and eight associate justices.
While the Supreme Court is the least political branch of the government, both in theory and in practice, it certainly has not remained impervious to influence. In the 1930s, amid the Great Depression and President Franklin Roosevelt’s New Deal, the Court faced a difficult position. After rulings against the constitutionality of various sections of F.D.R.’s New Deal, the President proposed the Judicial Procedures Reform Bill of 1937, more famously known as “the court-packing plan.”
The bill ultimately did not succeed, thanks to then-Senate Judiciary Committee chairman Henry F. Ashurst, but it introduced the possibility that the executive might forgo prudence and enact sweeping changes to the most stable branch of government. No president since has attempted such a radical move, but recent moves by the Senate have dramatically destabilized, and subsequently politicized, the appointment process for judges and justices.
In 2013, during former President Obama’s second term, Senate Majority Leader Harry Reid, D-Nev., enacted something many labeled “the nuclear option.” Under Reid, the Democratic Senate approved changes to the rules in which the Senate, as an institution, dealt with judicial nominations. These changes prohibited the filibuster from being deployed as a means to delay confirmations, as well as reducing the number of votes needed to confirm a judicial nomination from a supermajority to simple majority –– from 60 votes, down to 51.
However, this rule change did not affect Supreme Court nominations, only cabinet posts and federal judgeships. That alteration to the rules came in 2017, after Republicans had successfully halted Judge Merrick Garland’s nomination, taken back the White House and a Senate majority.
Current Senate Majority Leader McConnell deployed the nuclear option to remove the supermajority requirement for Supreme Court nominations, successfully appointing Justice Neil Gorsuch to the bench. By virtue of timing, Justice Brett Kavanaugh was confirmed under the same rules, and now we arrive at the predicament today.
Nearsightedness and the temptation to tip the scales in favor of current partisan objectives has run rampant through the Senate in the last decade. The nuclear option, so-called for its previously unthinkable ramifications, has been enacted twice in the last seven years, resulting in countless judgeship confirmations as well as two Supreme Court confirmations. Such destabilizing actions would’ve been inconceivable a half-century ago. Yet now, we may be on the verge of again neglecting history’s valuable lesson.
Both the president and the Senate are fulfilling their constitutional duties in nominating Judge Amy Coney Barret –– on this point, there is no debate, “Biden rule” or otherwise. However, consider the present situation had Democrats not unleashed the nuclear option in 2013, and Republicans not extended it in 2017. Judge Barret would be nominated, yet since the Republicans do not have a super-majority –– and very few, if any, Democratic senators would be in favor –– Barret would not be confirmed. Problem solved for the left.
Ultimately, this results in a painfully obvious conclusion: Rash changes to the fundamental operating procedures of the Senate, in pursuit of short-term partisan goals, greatly endanger the stability of our institutions. To assume Democrats expected they’d be the only party to reap the benefits of their rule changes is hysterically foolish. However, to expect the same naivety from Republicans, this time regarding Supreme Court nominations, is similarly absurd.
I am confident, however, that the Senate will right the ship. I believe the Senate rules will be changed back in the interest of stability, though under which party’s leadership I don’t know. There remains, however, the possibility of a future rife with instability beyond the Senate, which would be guaranteed if the Democrats, upon sweeping in November, look to F.D.R. for inspiration.
Senate Minority Leader Chuck Schumer, D-N.Y., said recently that “nothing is off the table” if the GOP fills Justice Ginsburg’s seat. The allusion to court packing is clear as day, though its ramifications have apparently gone out the window. Understand, the tumult resulting from the nuclear option’s evocations resides solely in the process for nominating and confirming judges and justices. It would be appallingly naive to fundamentally alter the constitution of the Supreme Court to directly benefit short-term political ambitions.
The Supreme Court should embody stability. Set apart from the political tidings of the legislative branch and the campaigning of the executive branch, the judicial branch ensures the rights of the citizenry persist. Inscribed in the stone facade of our own University’s law school is the phrase, “The Supreme Court: Preserver of the Constitution; Guardian of our Liberties; Greatest of all Tribunals.” For our current leaders to presume such superior motives as to justify the modification of the judiciary’s fundamental rules is as depressing as it is ill-conceived. For decades, the nuclear option was considered just that: nuclear. Come January, if Democrats revisit 1937 as retribution for the GOP filling the Court’s vacancy, I shudder to think of the consequences in the decades to come.
David Lisbonne can be reached at lisbonne@umich.edu.
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