On this day of national mourning, do yourself a favor and read Linda Greenhouse’s magnificent obituary of Justice Ruth Bader Ginsburg in The New York Times. The accompanying video is outstanding as well.
So where do we go from here? During the Democratic primary campaign, Pete Buttigieg called for expanding the size of the Supreme Court as retribution for Senate Majority Leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s choice to replace the late Antonin Scalia.
Buttigieg’s idea gained no traction then. But Joe Biden and the Democratic congressional leadership should go to McConnell immediately and make it clear that expanding the size of the Supreme Court from nine to 11 is exactly what they’ll do if he moves ahead with his grotesquely hypocritical plan to fill Ginsburg’s seat before Jan. 3, when the next Congress is sworn in.
Of course, they will then have to go out and win the White House and Senate and hold onto the House. Otherwise, even if McConnell agrees, he’ll turn around and ram through President Trump’s choice during the lame-duck session.
You may have missed it amid the Sturm und Drang over the fate of health care, but late last week Chuck Schumer announced that Senate Democrats would filibuster President Trump’s nomination of Neil Gorsuch to the Supreme Court.
Schumer will almost certainly fail. But it’s worth trying to stop this illegitimate nomination. And if Senate Democrats approach it in the right way, they can make an important statement about our broken system of government and what happens when only one of our major parties is willing to respect the norms and traditions that have long guided us.
Just as Congress and the broader electorate are hopelessly divided along partisan and ideological lines, so, too, is the Supreme Court.
Before the death of Justice Antonin Scalia, there were four liberals, four conservatives, and one centrist—Anthony Kennedy. All four liberals were appointed by Democratic presidents and all four conservatives (plus Kennedy) by Republicans.
And now a partisan battle has broken out over Scalia’s replacement. Despite President Obama’s choice of a respected moderate, federal appeals court judge Merrick Garland, Senate Republican leader Mitch McConnell has vowed not even to take up the nomination. Instead, McConnell insists the decision should be left to the next president.
It’s a dispiriting scenario—and a historical anomaly. As the retired New York Times Supreme Court reporter Linda Greenhouse pointed out Tuesday, we only have to look at fairly recent history to observe a very different dynamic.
After all, President Dwight Eisenhower appointed Earl Warren to the chief justice’s position, and Warren turned out (to Eisenhower’s chagrin) to be one of the most liberal justices in the court’s history. President John F. Kennedy appointed Byron White, who was liberal on civil rights but deeply conservative on social issues. And unlike today, when advocates expend most of their energy trying to persuade just one justice, Anthony Kennedy, years ago there were regularly three, four, or more justices who might vote either way.
“I’m deeply concerned as a citizen and as someone who cares about the court and about the consequences of the politicization of the court,” Greenhouse said. “The Roberts court is allowing the court to be used as a tool of partisan warfare.” As an example, she cited the court’s decision to rule on the legality of Obama’s executive order stopping the deportation of some undocumented immigrants—a decision that she said was accompanied by an overreaching aside questioning whether Obama’s order violated the Constitution.
Greenhouse, who currently teaches at Yale Law School and who still writes online commentaries about the court for the Times, spoke at the Shorenstein Center on Media, Politics and Public Policy, part of Harvard’s Kennedy School. She offered a range of dyspeptic opinions on the political environment both inside and outside the court. To wit:
• On Justice Scalia’s legacy. “I think he degraded the discourse of the court, frankly,” Greenhouse said. “His snarky dissenting opinions were ill-advised and enabled snarkiness in others. I think his, quote, originalist understanding of constitutional interpretation goes nowhere. That died with him.” She added: “He was a very colorful figure and great at calling attention to himself. He was kind of a cult figure. But I don’t think he’ll have much lasting impact.”
• On McConnell’s refusal to consider Obama’s appointment of Judge Garland to the court. “It’s truly unprecedented. … It’s totally cynical. It’s totally playing to the base,” Greenhouse said. She also disagreed with an observation by Shorenstein Center interim director Tom Patterson that Obama should have chosen a woman or a member of a minority group who would be more appealing to Democratic voters. “The brilliance of this nomination,” she said, is that the Garland choice will make Republicans “squirm” because he is exactly the sort of moderate they had earlier said they would confirm.
• On the Supreme Court’s order that the Massachusetts Supreme Judicial Court reconsider the state’s ban on stun guns. By custom, Greenhouse said, the Supreme Court would make such a decision without comment. But Justices Samuel Alito and Clarence Thomas added a caustic opinion suggesting the SJC had put a woman’s safety at risk. “Something’s not right here,” she said. “The idea is you don’t wash your dirty linen in public. … They thought they had to enlighten us with this 10-page screed.”
Greenhouse said that one way to make the court less politicized would be to put more (as in any) politicians on it. At one time during the Warren era, she said, not a single member of the court had served as a federal judge. Warren himself had been governor of California. More recently, Sandra Day O’Connor had served as an elected official in Arizona before entering the judiciary.
“I think a diversity of characteristics on the Supreme Court is very helpful,” she said.
Given that many Supreme Court decisions can go either way (after all, Greenhouse added, the reason most cases are before the court in the first place is because federal appeals courts in different jurisdictions reached opposite conclusions), a politician’s willingness to seek compromise might sometimes be superior than the certainty with which judges with legal backgrounds often act.
WGBH News contributor Dan Kennedy is a Joan Shorenstein Fellow at Harvard’s Kennedy School.