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It’s the End of the Court as we Know It, And I Feel Like Shit

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The confirmation of Neil Gorsuch is the culmination of a process that will treat Supreme Court nominations as purely partisan. Some of the consequences are unlikely to be pretty:

One response to this new state of affairs is to pine for the old order. Ruth Marcus of the Washington Post, for example, argues that Senate Democrats should have allowed “an up-or-down vote now, in exchange for a promise not to abolish the filibuster next time.” But this deal would be transparently worthless even if McConnell offered it. Anyone who thinks that McConnell would allow the Democrats to filibuster a Supreme Court nomination—especially a nomination that would transform the median vote of the Court—because of an inherently unenforceable promise should invest their life savings in a doctorate from Trump University.

And yet, I can understand the nostalgia for the previous ways of doing business. The new, partisan norms are likely to get ugly, especially during times of divided government. And other longstanding norms might also be threatened.

One implication of the new normal is that we’re likely looking at a future in which presidents can only reliably fill judicial vacancies when their party is in control of the Senate. Supreme Court vacancies will be impossible to fill when the Senate is in opposition hands. Had Hillary Clinton won with a Republican Senate, it is overwhelmingly likely that the Republican blockade would have continued unless Democrats retook the Senate in 2018. McConnell proved that obstruction doesn’t carry a political cost, and opposition parties have no incentive to give high-stakes victories to the president.

One upshot of this is that short-handed Supreme Courts will become increasingly common. This isn’t the end of the world; some issues can be resolved by an eight-member Court. In a federal system, circuit splits are suboptimal but not necessarily disastrous. The American separation-of-powers structure produces many inefficiencies, for better or worse, and this will be another one.

The nuclear option could portend further norms going by the wayside, however. The nine-member Supreme Court is not fixed by the Constitution, but is simply a norm that has now persisted for more than a century. If Gorsuch is the last first-term Trump nominee to be confirmed, this norm is likely to persist.

But imagine if Donald Trump is able to replace Anthony Kennedy and Ruth Bader Ginsburg and Stephen Breyer. If the size of the Supreme Court remained at nine, very conservative Republicans would have a stranglehold on the Supreme Court for decades despite the party having lost the popular vote in six of the last seven presidential elections. Furthermore, the decisive appointments would have been made by a historically unpopular president who most voters rejected. Democratic governments would be consistently frustrated when trying to enact their agenda by hostile courts. Cherished rights like a woman’s right to have an abortion would be abandoned.

If this happens, it is very possible that we would have a constitutional crisis. Democrats would likely attempt what FDR tried to do after winning re-election in 1936. Court-packing, as Senate Democrats in 1937 realized, is a far from perfect solution because once the nine-justice equilibrium is gone, the other side will respond in kind when they have the chance, creating a chaotic and increasingly illegitimate judicial system. But a governing coalition facing hostile courts that cannot be quickly transformed may well see it as the least worse option.

The elimination of the filibuster of the Supreme Court is in itself a good thing, and there will be worse consequences of dysfunctional American institutions. But the new equilibrium could have disastrous consequences pretty quickly.

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