Commentary: A dysfunctional Supreme Court – get used to it

Senate Republicans have become experts in dysfunction. They seem intent on spreading the contagion to the U.S. Supreme Court.

The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

The Supreme Court’s non-decision in Zubik v. Burwell -- the latest challenge to the Obama administration’s effort to ensure that women receive contraceptive coverage as part of workplace health insurance – and its inability to decide other important issues bring into stark focus the damage that Senate Republicans have inflicted on the court by refusing to consider the nomination of Judge Merrick Garland to fill Justice Antonin Scalia’s seat.

In Zubik, the question was whether the religious interests of employers trumped the health interests of women. Rather than answer it, the justices sent the dispute back to the lower courts with a feckless and likely unsuccessful plea for everybody to please just get along and try to work things out. The action demonstrated that the 4-4 ideological divide will sap the once powerful Supreme Court of its power to decide any but the least controversial issues. Most disturbing, the gridlock threatens to continue indefinitely.

This was clear in the court’s decisions issued Monday. And it says a great deal that the court has accepted few cases for next year.

Some commentators see a faux silver lining in the court’s diminished power. They contend that a 4-4 ideological balance will depoliticize the high bench by forcing the justices to cooperate to find narrower, less controversial ways to resolve disputes.

Yet, this view ignores the crucial role that the Supreme Court now plays in protecting individual rights and maintaining progress toward a more just society in the face of both political dysfunction and political overreach, in shaping and clarifying federal law, and in reconciling conflicts among lower federal courts.

Surely, the four million potential beneficiaries of President Barack Obama’s deferred-deportation program don’t think it’s a good thing that a divided court may allow the actions of conservative lower-court judges to block the program. Surely, women who may need reproductive health services in Texas do not think it’s a good thing that these judges may allow the state legislature to eliminate all but a handful of clinics. Surely, citizens concerned about new barriers to voting this November want to have their rights decided by a functioning court. And, surely, individuals contending they have been improperly sentenced to death would prefer a full court to hear their appeals.

The justices themselves have contributed to this charade by insisting that their work continues as usual. Perhaps they should be forgiven for not fessing up that their institution has been grounded. But they demonstrate they cannot do their jobs with each case they return unresolved to the lower courts, each narrow holding that ducks the major issues presented and, most important, each case that they don’t accept because they foresee gridlock.

The Senate’s inaction has dragged the court into the stalemated political quagmire in which other U.S. political institutions have been wallowing. The importance of having nine unaccountable people with life tenure decide controversial issues is underlined by the idea that they stand above partisan politics.

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Granted, this notion is tested each time a new justice faces politicized confirmation proceedings. But it could finally be shattered by the GOP’s refusal even to consider Garland’s nomination. For it confirms that the Republican Party considers the court just another political arena.

Even if the Senate had moved promptly to confirm Garland, he could not have participated in this term’s decisions. But the most contentious matters could have been rescheduled for consideration next term -- with confidence that the court would have nine members.

Because Republicans have vowed not to consider any candidate nominated by Obama, there is little chance that a ninth justice will be on the court next term. Indeed, if Republicans maintain control of the Senate but don’t win the White House, the country may live indefinitely with an eight-member court. We could even watch the court shrink with the death or departure of each justice if Republicans retain hold of the Senate after the November elections. Last one turn out the lights.

Even if Democrats win the Senate and the White House, Republicans might still decide to filibuster any nominee. Democrats would then have to decide whether to nuke the Senate’s remaining filibuster capacity, as they did with other judicial and executive nominations in the face of Republican obstruction.

Since the Nixon administration, the composition of the federal judiciary – particularly the Supreme Court -- has been a central element of the Republican political agenda. President Ronald Reagan consistently nominated judges and justices who would pursue sharply conservative political goals masquerading as law.

He and his Republican successors succeeded. The resulting conservative majority on the Supreme Court has suppressed minority rights, limited reproductive freedom, weakened labor, disempowered consumers, curtailed health and safety regulations, promoted majority religion and declared that every individual has the right to possess a gun. The presumptive GOP nominee Donald Trump’s recent release of a list of very conservative prospective court appointments affirmed the continuing centrality of the court to the party’s conservative base. By dangling specific names as political bait, however, Trump also managed to threaten further damage to the court’s legitimacy.

Obama was in part able to win confirmation for his first two Supreme Court picks because neither would deprive the high bench of a conservative majority, and Democrats controlled the Senate. Since Republicans took the Senate in the 2014 midterm elections, however, the pace of judicial confirmations has slowed dramatically.

Though the GOP had virtually declared a halt to confirmation of Obama-nominated judges, the heightened politicization of the Supreme Court still seems stunning. Within hours of the announcement of Scalia’s death, Republican Majority Leader Mitch McConnell declared the Senate would not even consider any nomination from Obama.

The eight-member court’s difficulties are instructive for its future. On major issues, if the court is stymied by a 4-4 divide, the lower-court decision would remain in place, and important controversies stay unresolved. Opponents of organized labor, for example, are trying to prevent unions from requiring non-union employees to pay fees for the services the union performs for them. Because the Supreme Court failed to resolve the issue, which is pending in other courts, it creates the possibility that different legal standards will govern different parts of the country.

Major cases involving the administration’s deportation deferrals could also fall prey to 4-4 gridlock. The justices could issue a narrow decision that avoids a 4-4 split but leaves crucial issues unresolved.

On some emergency applications, the court may be paralyzed because of the 4-4 split. These can involve, for example, applications for stays of execution or imprisonment or – of particular relevance in this election season -- interpretation and application of laws governing voting.

In addition, given the intractability of the Republican-controlled Senate, the court cannot take cases for review in the future. Because there is no guarantee that the court will start -- or finish -- its next term with its full complement of justices, the Supreme Court cannot confidently schedule 4-4 cases for re-argument. It has already fallen behind in the number of cases it has accepted for resolution next year, and it has not taken, and likely will not take, any blockbusters.

Every nation that aspires to live under the rule of law requires a high court to provide definitive statements of what the law is. The Republican refusal to fulfill their constitutional obligation to advise and consent to Supreme Court nominees jeopardizes that aspiration and raises the prospect of continuing legal uncertainty on fundamental issues facing the nation.

About the Author

Herman Schwartz is a constitutional law professor at the American University Washington College of Law. William Yeomans served as acting assistant attorney general for civil rights in the Justice Department and chief counsel for Senator Edward M. Kennedy on the Senate Judiciary Committee. He is a fellow in law and government at American University Washington College of Law.

The views expressed in this article are not those of Reuters News.