Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how Supreme Court nominee gridlock could lead to a very unlikely, but not unprecedented, option for the Chief Justice.
“Under the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by the President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”
– Excerpt from a letter by all 11 Republican members of the majority of the Senate Judiciary Committee to the Senate majority leader on February 23, outlining their decision to take no action even to consider a nominee by President Obama to replace the late Justice Antonin Scalia – no hearings and no votes.
WE CHECKED THE CONSTITUTION, AND…
The Supreme Court, under the Constitution, has no specific guarantee of protection against the actions of the other two branches of government that might make the Justices’ job a lot harder. And that means that, if the Senate does indeed get gridlocked over replacing one of its members who has died or retired, the court’s work very likely will be seriously affected by the predictable problems of operating with one Justice short.
There is no existing forum where the Justices could go to complain about the impact on their work. It is true that the court does talk to Congress about the work of the Justices and of the lower federal courts, and some of the Justices regularly go before legislative committees to explain how the courts will spend the money that they ask Congress to appropriate to fund their operations But the court is very reluctant to engage in anything like lobbying that would seem outside its purely judicial role. It well understands the constitutional idea of separation of powers.
Chief Justice John G. Roberts, Jr., recently complained in a public speech about what he saw as a perception among some in the public that the court is a political institution, operating as the other two branches do. It is thus hard to imagine him having any role in trying to get the Senate to move along the nomination of a new Justice to replace the late Justice Antonin Scalia.
But once in history, faced with what it considered to be a threat to its very existence, the court did get involved in a subtle gesture of lobbying, and it is one that historians have ever since debated as to its propriety. In 1937, President Franklin Roosevelt, frustrated by repeated decisions of the Supreme Court striking down key features of his New Deal program to help the country get through the Depression, sent to Congress what came to be known as the “court-packing” plan. For every Justice over the age of 70 who chose to remain on the court, the president would have been allowed to name a new Justice, potentially adding six new members to the court – and, of course, assuring that the remainder of the New Deal initiatives would be upheld. The main argument the president and his aides made for the proposal was that the court was over-worked, and needed some new help.
At a strategic point in the Senate’s consideration of the plan, Chief Justice Charles Evans Hughes, in a series of private meetings with senators, agreed to write a letter to the Judiciary Committee, explaining that the court was current in its work and needed no additional Justices. The letter landed in the committee like a bombshell. Historians, as would be expected, are divided over whether this was the decisive move that ultimately led to the demise of the Roosevelt plan, but it certainly had some impact, even if not the decisive one.
In the court’s present situation, following the death of Justice Scalia, the members of the court are likely to try to work out ways to cope with the vacancy and with it, the potential for a series of 4-to-4 decisions, that essentially decide nothing. But if the vacant seat remains unfilled for an extended period – say, for a full year or more – the court may find itself out of options to delay review of major cases, and may have to give in to issuing a series of 4-to-4 outcomes. Major issues, broadly affecting American life and culture, could go undecided in a final way.
Assuming that prolonged delay in the Senate would begin to actually disrupt the court’s operations, especially in dealing with major constitutional questions, would the court then feel compelled to tell the Senate that it genuinely needs a ninth Justice? If such a message were sent discreetly, perhaps in a letter quietly solicited by some senator, would Chief Justice Roberts be inclined to do it? He probably would not even consider doing it unless the institution he heads had begun to flounder in its constitutional task.
It would be certain, though, that Roberts would not make the one crucial mistake that Chief Justice Hughes did in 1937, failing to consult with all the members of the court at that time before sending the letter. That omission undercut the strength of the Hughes letter, making it seem that the whole court was not behind it. It thus looked to be more politically calculating, and may even have harmed the court’s reputation – at least with some historians.
Would there be a political calculation in it if Roberts did agree to take some action? In other words, would he rather not have an Obama nominee taking the Scalia seat because that might shift the court in a more decidedly liberal direction? It does seem improper even to suggest it, especially given Roberts’ current worry about how the public views the court in the midst of a deeply polarized Washington establishment. But there no doubt would be suspicions along those lines anyway, and that reality probably provides another reason to assume that the Chief Justice would stay out of the fray.
All such considerations, however, might begin to lose their force if the eight Justices did, indeed, find themselves stymied in major ways by the continuing effect of one empty seat. Propriety might then have to give way to necessity.
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