June 28, 2018

About that Supreme Court seat…


No point in mincing words: yesterday Borked sucked. On top of plenty of other awful newsAnthony Kennedy is retiring from the Supreme Court, ostensibly leaving Donald Trump to name a replacement — in addition to the seat that was left open when Senate Republicans refused to allow confirmation hearings for Obama appointee Merrick Garland. That seat, of course, is now occupied by the haughtily undistinguished originalist Neil Gorsuch.

As we all contemplate the increasingly uncertain future of American jurisprudence, maybe this passage from David Faris’s It’s Time to Fight Dirty can help us keep things in focus. Incidentally, the book predicted yesterday’s news, speculating that Kennedy might retire during Trump’s first term.

Here’s an excerpt from the start of the fourth chapter, “The Neutron Option for the Supreme Court,” which spells out some of the federal judiciary’s most deeply entrenched problems. For a more complete analysis, with historical examples and practical suggestions for fixing this, you should read the book today.



The theft of Merrick Garland’s Supreme Court seat was an unprecedented act of democratic sabotage. The man who received the stolen goods, a statuesque zealot named Neil Gorsuch, was and remains illegitimate. And the only way for Democrats to regain control of the Supreme Court, and to precipitate a crisis that might usher in permanent reform, is to try to expand the number of seats at the earliest possible opportunity. As with so many other proposals detailed in this book, all it would take is a simple act of Congress, duly signed by the president, to increase the number of SCOTUS chairs. It was done repeatedly in the distant past, there is absolutely no constitutional barrier to doing so, and it could be done fairly easily in the present. The only thing preventing the parties from pursuing what you might call the Neutron Option is that for most of the modern history of the country, the two parties developed a norm that presidents should get to nominate whoever they like, within reason. And indeed, since the turn of the twentieth century, the scuttling of Supreme Court nominees has become increasingly rare, a tactic used only to block the truly corrupt nominees (as when LBJ tried to elevate Abe Fortas to Chief Justice in 1968), the gravely unqualified (Harriett Miers, nominated by George W. Bush), or those whose ideology is seen as truly beyond the pale, and whose presence on the Court would drastically alter its ideological makeup (Robert Bork, a Reagan nominee who was spiked by the Senate). Because of this unspoken agreement between the two parties, both sides regarded Supreme Court openings as what they are — lotteries to be won by lucky presidents, or lost by those unfortunate enough not to preside over an opening. Ronald Reagan appointed three justices; Carter appointed zero. Bill Clinton, George W. Bush, and Barack Obama had appointed two prior to the death of Scalia.

The GOP’s treatment of Merrick Garland means that this informal agreement is trashed. You could, theoretically, try to fish it out of the dumpster, uncrumple it, and try to convince everyone that it is back in force, but no one is likely to believe it. Here is a cold reality of politics in the twenty-first century, post-Garland: for the foreseeable future, presidents will never again get to fill a Supreme Court seat when the Senate is controlled by the opposing party. For Democrats, the next Republican president to face a hostile Senate should get nothing — no lower-court justices and no Supreme Court picks. This will remain true even in 2040, when Garland himself might be long dead. In the meantime, they should start preparing for an assault on the Republican Court majority that will allow them to withstand constitutional challenges to other recommendations in this book, as well as to push through a genuinely radical progressive policy platform. Democrats should also introduce a constitutional amendment to end lifetime tenure, as well as legislation, detailed later, to guarantee each president two seats on the Court. And yeah, that’s probably not going to happen. So the centerpiece of the judicial counterrevolution must be an expansion. Democrats will have to plunge the knife in and twist it. Wouldn’t doing so tear the country apart?…

The federal judiciary has taken on a much broader role in American politics than the Framers intended shortly after the birth of the new republic. When Chief Justice John Marshall ruled on Marbury v. Madison, he established the principle of judicial review — meaning the ability of the Court to invalidate state and federal laws as being in violation of the Constitution. One of the most remarkable things about the history of the United States is not just that this arrangement came into being in the first place, but that it has been so rarely challenged by the political leaders who have often had to abide by Court rulings striking down key pieces of their agendas. Yet political leaders have frequently toyed with the structure of the Supreme Court to frustrate their opponents. One of the most notorious acts of political interference with the Court was the decision of congressional Republicans to reduce the size of the Supreme Court from nine to seven justices after Andrew Johnson—who they rightly regarded as an enemy of the project of Reconstruction—succeeded Abraham Lincoln as president of the United States. Lest there was any doubt about the purpose of this maneuver, they quickly restored the number of justices to nine when Republican Ulysses S. Grant was elected president in 1868.

Even before Republicans destroyed the fairy tale of America’s nonpartisan, apolitical Supreme Court by refusing to confirm Merrick Garland, the Supreme Court suffered from another of the Constitution’s design flaws: All justices in the federal judiciary are granted the right to stay in their offices if they so choose until they are carried out of them feet first. Perhaps lifetime tenure made sense when the Constitution was drafted, when the average life expectancy was probably thirty-five years or so, and even someone lucky enough to make it to fifty or sixty probably couldn’t expect to live much more than another decade. Back in what the comedian Sarah Silverman once called “the olden-timey days,” your life could end as the result of what today is a routine infection — strep throat, or the flu. Early American death panels were called doctor’s offices. Today, men who successfully cross the threshold of age sixty-five are likely to make it past eighty-four, and women past eighty-six. The signature challenge for most middle-aged Americans is how to care for their elderly parents, with dementia and Alzheimer’s a particularly vexing problem.

You can think of the oldest members of the federal court system as America’s declining parents. Instead of trying to get them to stop driving a car or move to a single-story house, we’re just waiting for them to stop working and brush up on their golf games. Today, Ruth Bader Ginsburg and Anthony Kennedy are well past their eightieth birthdays, with Stephen Breyer approaching his, and Clarence Thomas nearing seventy. Most justices slow down and become less effective on the bench as they get older. According to Jeffrey Toobin, in the latter years of his tenure, Chief Justice William Rehnquist’s “opinions shrank” in size and scope and he more or less abandoned any effort to persuade his fellow justices of anything. As Toobin notes, “fatigue was a factor too.”

The late Branch Rickey, the Brooklyn Dodgers general manager responsible for breaking baseball’s racial apartheid system in the 1940s, once famously said about letting aging players move on to other teams, “Better a year too early than a year too late.” America’s judicial system keeps people years too late. Political research suggests that justices hang onto their offices far too long, hoping to retire under political circumstances that would allow them to be replaced with an ideologically similar person. Others just dig working. The length of tenure on the Court has skyrocketed over the years — justices who have retired since 1970 have spent more than twenty-six years in their seats, a number that used to be less than fifteen. In many cases, the quality of their jurisprudence declines substantially in the process. Not only that, but justices serving short terms on the U.S. Supreme Court have completely disappeared in the modern age. Once a routine feature of the Court, the occasional justice serving a relatively brief term allowed the Supreme Court to be more responsive to changes in public opinion and evolving interpretations of constitutional doctrine. For instance, Eisenhower appointee Charles Evans Whitaker held his seat for just over five years before stepping aside in 1962. This no longer happens. Since 1970, no justice appointed to the Court has served fewer than eight years.

Presidents have increasingly decided to take advantage of life-time tenure to appoint younger and younger justices. These legal Doogie Howsers can then spend the rest of their long lives on the Court, long after that president has left office. Clarence Thomas was just forty-three years old when he white-knuckled his confirmation hearings and won a close 52–48 vote in the Senate. The Bush Administration was so desperate to have him sworn in before reporters confirmed key elements of Anita Hill’s testimony about how Thomas harassed her that they rushed his ceremony. He’s now been staring up at the ceiling in silence during oral arguments for twenty-six years, with no conceivable end in sight. As of this writing, Anthony Kennedy has been on the Supreme Court since 1987, before more than 124 million Americans were even born. Newly appointed originalist Neil Gorsuch was forty-nine when he was confirmed. Honestly: he looks like a healthy person. He could be on the Court until today’s graduating college seniors are nearing retirement. If today’s older conservative judges—Kennedy and Thomas—are clever, they’ll retire during Trump’s first term, allowing the appointment of two more baby-faced ideologues and making it possible that a Democratic president will never ever get to replace a conservative on the Court.

As in so many other ways, the United States is an outlier among advanced democratic societies with these practices. And there are plans out there to address them.





It’s Time to Fight Dirty is on sale now. Buy your copy here, or at your neighborhood independent bookstore.