The Supreme Court wasn’t designed for this political heat

February 17, 2016
U.S. President Ronald Reagan speaks with Supreme Court Justice nominee Antonin Scalia (R) in the White House Oval Office in Washington, DC in a July 7, 1986 file photo courtesy of the Ronald Reagan Library. Conservative U.S. Supreme Court Justice Antonin Scalia has died, setting up a major political showdown between President Barack Obama and the Republican-controlled Senate over who will replace him just months before a presidential election. REUTERS/Bill Fitz-Patrick/White House/Courtesy Ronald Reagan Library/Handout via Reuters   ATTENTION EDITORS - THIS PICTURE WAS PROVIDED BY A THIRD PARTY. REUTERS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS IMAGE. FOR EDITORIAL USE ONLY. NOT FOR SALE FOR MARKETING OR ADVERTISING CAMPAIGNS. THIS PICTURE IS DISTRIBUTED EXACTLY AS RECEIVED BY REUTERS, AS A SERVICE TO CLIENTS

President Ronald Reagan speaks with Supreme Court Justice nominee Antonin Scalia (R) in the White House Oval Office in Washington, July 7, 1986. REUTERS/White House/Bill Fitz-Patrick/Courtesy Ronald Reagan Library/Handout

Supreme Court Justice Antonin Scalia’s sudden death has detonated a political furor over the nomination of his successor. Senate Majority Leader Mitch McConnell (R-Ky.) declared total obstruction, announcing that the nomination of a new justice should await election of a new president, essentially promising an unprecedented nearly year-long vacancy on the U.S. Supreme Court.

Republican senators rushed to line up behind McConnell, while presidential contenders, senators Ted Cruz (Texas) and Marco Rubio (Fla.), pledged to filibuster any nomination if necessary. President Barack Obama vowed to forge ahead, condemning the notion of leaving the Supreme Court short-handed. Both Democratic presidential candidates railed at the Republican obstruction.

This confrontation is yet another example of the polarization and dysfunction of Congress and virtually all U.S. politics. But it also shows how politicized the Supreme Court — and federal courts generally — have become. Particularly since Obama’s nominee will be seen as swinging the ideological majority on the court.

Senate Minority Leader Mitch McConnell (R-KY) (L) talks with Supreme Court Justice Antonin Scalia during the Inaugural Luncheon in Statuary Hall after U.S. President Barack Obama's ceremonial swearing-in at the U.S. Capitol on Capitol Hill in Washington, January 21, 2013.   REUTERS/Benjamin Myers (UNITED STATES  - Tags: POLITICS)

Senate Majority Leader Mitch McConnell (L) talks with Supreme Court Justice Antonin Scalia at President Barack Obama’s Inaugural Luncheon in Statuary Hall at the Capitol in Washington, January 21, 2013. REUTERS/Benjamin Myers

If Republicans go through with their promised obstruction, the dispute will be incorporated into the fierce partisan rhetoric in this fall’s elections. Each party nominee will seek to rally his or her base voters with the threat and opportunity posed by the empty seats on both the Supreme Court and many appellate courts. Republican senators in swing states will likely be assailed for their partisan obstruction of Obama’s nominee.

But, suggestions that this will be a central issue in voters’ minds are overdone. Most voters won’t decide to vote for a president or a senator to consolidate a majority on the Supreme Court or to punish or reward Republicans for obstruction. Jobs, wages, the war on terror, trustworthiness and party division are all likely to weigh far more than the fight over the next Supreme Court nominee.

Republicans, for example, have effectively blocked Obama from filling vacancies in the Federal Appeals Courts for two years without much notice. The fight over Scalia’s replacement lifts the visibility of the issue, but it will still be low on voters’ list of key concerns.

What the coming battle will do, however, is continue to politicize the Supreme Court, exposing judicial decisions as political choices rather than legal ones. Even as contention over social issues — civil rights, women’s rights, gay marriage, LGBT rights — continues to rage, the new populist movements in both parties will likely increasingly challenge the court for its corporatist ideology and elitist composition.

The Supreme Court is not designed to take this heat. Under the U.S. Constitution, the Supreme Court was designed as the “least dangerous branch.” The executive branch, led by the president, and the legislative branch, Congress, are the political branches of government. Each claims a mandate from voters. They are charged with making the laws and administering them. They are the arena for political combat and compromise.

The judiciary, on the other hand, is limited to determining what the law is, as applied to specific facts in specific cases in dispute. Early in the republic, under Justice John Marshall, the Supreme Court asserted the power to review whether the laws passed by the Congress and signed by the president accorded with the Constitution. But this was a power to be used cautiously, with deference to the choices of the political branches. Limits imposed by legal discipline required judges to respect precedent and to decide only on the facts in the case before them. Lifetime appointments were justified as insulating the justices from politics.

U.S. President George W. Bush (L) congratulates John Roberts moments after Roberts was sworn in as the 17th Chief Justice of the United States during a ceremony in the East Room of the White House in Washington September 29, 2005. Roberts, a 50-year-old conservative, was sworn in on Thursday to a lifetime post that positions him to help shape the American way of life for decades. In the White House ceremony, Roberts took the oath as youngest chief justice in two centuries just hours after the U.S. Senate confirmed him as President George W. Bush's first nominee to the Supreme Court.

President George W. Bush (L) congratulates John Roberts moments after he was sworn in as the 17th chief justice in the East Room of the White House in Washington, September 29, 2005. Reuters/Files

To this day, nominees parade before Congress pledging fealty to these principles. “We don’t sit here to make the law, to decide who ought to win,” Scalia noted, “We decide who wins under the law that the people have adopted.”

In his Senate confirmation hearings, Chief Justice John Roberts famously used a baseball analogy, describing himself not as a pitcher or batter, but as an umpire — whose only job was to call balls and strikes.

These protestations are — and for the most part always were — nonsense. From the start, the Supreme Court was an intensely political institution. Its decisions would delineate the balance of power between the other branches of government, between the federal power and the states, the balance between corporate rights and labor rights, between creditors and debtors, the scope and limits of American liberties.

A history of politics

The court has tended to lag behind changing political opinion — generally serving as a brake, not a goad to change. It reflected and helped to articulate establishment consensus — and establishment divisions. The court’s decisions have inevitably been at the center of crucial U.S. political debates. A conservative court, for example, legitimized segregation in Plessy v. Ferguson, formally ending the post-Civil War Reconstruction. As the great industries built up during the Gilded Age at the turn of the 20th century, court majorities read an individualist, free-enterprise economics into the Constitution. Among other things, court rulings outlawed unions as a restraint of trade.


President Franklin D. Roosevelt congratulates his former attorney general, Robert Jackson, after he took the oath of office as associate justice of the Supreme Court at the White House, July 11, 1941. Library of Congress

That conservative era was overturned with the New Deal. Justices — their minds concentrated by President Franklin D. Roosevelt’s threat to enlarge, or “pack,” the court — got out of the way of expanded federal action. The Supreme Court’s unanimous 1954 decision in Brown v Board of Education ruled separate-but-equal unconstitutional, and spawned billboards across the South braying “Impeach Earl Warren” — referring to the Supreme Court chief justice, a Republican governor of California appointed by President Dwight D. Eisenhower.

Scalia, a Reagan appointee, was at the center of the current court’s five-person majority of right-wing activist judges. Part of a concerted conservative effort to take back the courts, they were nominated by Republican presidents in the flush of the conservative era ushered in by President Ronald Reagan.

Scalia and his colleagues are known for their efforts to roll back or retard the advance of socially liberal reforms in int United States — undermining affirmative action, gutting the 1965 Voting Rights Act, chipping away at privacy and abortion rights. They failed by one vote to overturn Obamacare and to deeply curtail reproductive rights. They became the rear guard of a conservative era in retreat. They even managed to choose a conservative president in Bush v Gore, a 2000 decision so out of bounds that the court announced it had no precedential value. (When asked to defend Bush v. Gore in later years, Scalia would snap: “Get over it.”)

U.S. Supreme Court Justice Antonin Scalia (L) induces a laugh from Justice Clarence Thomas (R) as they depart following the Red Mass, a service to mark the beginning of this year's Supreme Court term, at the Cathedral of St. Matthew the Apostle in Washington October 5, 2014. The Red Mass is sponsored each year by the John Carroll Society, a Roman Catholic organization for professionals in law and business in Washington. REUTERS/Jonathan Ernst    (UNITED STATES - Tags: POLITICS CRIME LAW RELIGION)

Justice Antonin Scalia (L) gets a laugh from Justice Clarence Thomas (R) after a service at the Cathedral of St. Matthew the Apostle in Washington, October 5, 2014. REUTERS/Jonathan Ernst

Naturally, they deny any such intent. Scalia touted his commitment to originalism — the original intent of the Founding Fathers — and textualism — that the text of the Constitution and laws counts, not the histories of the legislative process or the constitutional conventions. In some areas, such as the Sixth Amendment rights of people accused of crimes, Scalia ruled in ways that probably conflicted with his own political views.

A ‘big business’ court

With less attention, the five conservatives — with occasional help from the court’s moderate justices — emerged as the most pro-corporate court in history. Scalia and his four conservative colleagues (Roberts, Samuel Alito, Clarence Thomas and Anthony M. Kennedy) are five of the 10 most pro-business Supreme Court justices, according to a review of business decisions over 65 years, from 1946 to 2011. Alito and Roberts rank at the top.

The conservative majority weakened worker rights, undermining unions. Big business benefited from the increasing scope to summary judgment, higher bars to class actions, higher barriers to plaintiffs and greater scope for arbitration. With two key decisions, Citizens United v Federal Election Commission, and McCutcheon v Federal Election Commission, this gang of five overturned precedents to open the floodgates to corporate political contributions and unlimited billionaire spending. As Jamie Raskin, professor of constitutional law at American University, summarized, where the courts at the turn of the century read “individual free-market ideology into the Constitution,” the Roberts court has read “corporatism into the Constitution,” expanding the rights of corporations far beyond anything ever imagined by the Founders.

“The Roberts Court is the most pro-business court since the mid-1930s,” said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine. “This helps understand it far more than traditional liberal and conservative labels.”

With Scalia’s death, the Supreme Court is now viewed as split 4-4 liberal and conservative on social issues, with Kennedy lining up with liberals on choice and gay marriage. On corporatism, as the study found, the four remaining conservatives remain extremely pro-business, but “the liberals only moderately liberal.”

Scalia’s departure will stall the conservative effort to destroy public service employee unions, because the impending Friedrichs v. California Teachers Association case, which might have devastated public-service employee unions, is now likely to end in a tie — confirming the lower court decision upholding union rights.

With populist movements roiling both parties, and Americans increasingly seeing the economy as rigged and U.S. politics as corrupt, the Supreme Court will necessarily come under even greater attack. The justices were all educated at Yale or Harvard Law School, with practices in corporate firms, government or academia — a far remove from the legal hassles of working and poor people. They are largely reflective of a corporatist, internationalist establishment that is under attack from both right and left for rigging the rules for the few and against the many.

Scalia, a jurist whose extreme views, acerbic wit and writings, made him a source of controversy, is gone. But the bitter political controversy around the Supreme Court and its nominees, including his successor, will only intensify.


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The heat never started until the appearance of activist judges, who are more interested in political ideology and political correctness. It will be nearly impossible to find a candidate that is a student of the US Constitution like Scalia was. Remember, we have 3 branches of government. The judicial branch is there to support and interpret the laws as enacted by the legislative branch. It’s not their jobs to rewrite the laws that are usually supported by a democratic majority.

Posted by MEOilMan | Report as abusive

Ha! Scalia was the most activist judge ever. Deciding that corporations are people. What a joke. He was the maker of the new industrial kings. Helping the masters enslave the people, he was an activist with evil intent, to bring back true slavery.

Posted by brotherkenny4 | Report as abusive

Scalia also believed the Supreme Court should intervene in things like Teri Schiavo; and a Florida vote count involving a handful of local precincts. And more recently he believed the federal government should step in and prevent California from enacting its own local clean air laws.

He was all for states’ rights….. until those states’ rights could cost corporations money or electoral votes.

Scalia was a horrible judge. A right wing activist who lived off the fat of corruption.

Thoughts and prayers to his family though. He was not their fault.

Posted by Solidar | Report as abusive

What is sad is the egos of these justices. They went to prestigious schools (which seem to do very poor jobs at educating students) and think they are brighter than everyone else. All they really are; is more narcissistic than your regular decent person.

Posted by vibuc | Report as abusive

Appointment of the Justices to SCOTUS will remain controversial, so why do we never even read about court appoints in other major nations? Does anyone even know the name of one EU judge or even a UK judge? Are the appointments in other nations done with less fuss?

Posted by SeniorMoment | Report as abusive

It’s simply another sign of our government’s dysfunction.

Posted by CMEBARK | Report as abusive

I wonder when the DOJ will begin an investigation into Judge Scalia for corruption and bribery?

Also, who paid for his trip to the luxury resort in West Texas [because he didn’t]? And, who was his “special friend” [not his wife] that was sharing his luxury room? Who were the other 35 guests at the Cibolo Creek Ranch? John B. Poindexter is a wealthy Republican donor who owns the ranch. Poindexter’s company has 7 subsidiaries. Last year the SC refused to hear a case of age discrimination that was lodged against one of Poindexter’s subsidiaries.

Scalia and Thomas attended a private political meeting sponsored by Charles and David Koch and then the Citizens United decision was made by the SC equating money as free speech. Also, interesting to note that just before the Citizen’s United decision, Justice Thomas failed to disclose that his wife was working for a conservative think tank and making a large salary.

This begs the question: Is justice for sale on our nations highest court? If so, how many of their decisions were bought and paid for.

Posted by IamBAD1 | Report as abusive

Corrupt judge who died on a corrupt “comped” trip to a catered guest ranch owned by….. a defendant who is being sued in the Supreme Court.

Surprise! Scalia died dirty because he lived dirty. Quack Quack.

Posted by Solidar | Report as abusive

I see Solidar and IamBAD1 are still up to their old prejudices. Meanwhile, I don’t see the author’s argument that the Supreme Court can’t walk through fire just because “the bitter political controversy around the Supreme Court and its nominees, including his [Scalia’s] successor, will only intensify.” Some folks thrive on fire walking, so why not the Supreme Court Justices?

Posted by hometown | Report as abusive

I see that “Hometown” has stuck his head deeply into the sand. He prefers to: hear no evil, see no evil, and speak no evil. Appearances speak louder than words. Scalia accepts a free vacation to a luxury resort from an individual whose case before the SC was dismissed. Scalia and Clarance Thomas attended a political function with Charles and David Koch and then the SC approves Citizens United where free speech = money. It doesn’t take a rocket scientist to figure out that these two Supreme Court Justices are bought and paid for. Scalia will be forever known as: Antonin “For Sale” Scalia.

Posted by IamBAD1 | Report as abusive

“Prejudice” is not calling out a corrupt judge. Prejudice is when you have a defendant in your court and you accept free gifts from them on multiple occasions…. and then you decide in their favor. That Hometown would think this is a good clean judge is no surprise. Not sure he reads newspapers.

Posted by Solidar | Report as abusive