A half-century ago, the brilliant British comedy troupe Beyond the Fringe produced “The End of the World,” a skit in which a group of cultists gather atop a mountain to greet the Apocalypse, prophesied for that very day. “Now is the end!” they chant. “Perish the world!”
An embarrassed silence follows.
“Well,” says the prophet. “It’s not quite the conflagration I’d been banking on … Never mind, lads, same time tomorrow.”
The sketch comes to mind as the nation’s capital decompensates over the death of Justice Antonin Scalia. Scalia’s body will lie in repose at the Court on Friday; but he had not even been removed from the remote ranch where he died before some Republican politicians proclaimed the End of the World. “I don’t think the American people want a Court that will strip our religious liberties,” said GOP presidential candidate Ted Cruz. “I don’t think the American people want a Court that will mandate unlimited abortion-on-demand, partial-birth abortion with taxpayer funding, and no parental notification. And I don’t think the American people want a Court that will write the Second Amendment out of the Constitution.” Mitch McConnell, restrained only by contrast, said: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president”—thereby proclaiming the next nine months a prolonged referendum on the Court.
Wednesday’s newspapers brought a hint that the Republican opposition is not entirely united in refusing to consider a White House nominee. But Cruz and other presidential candidates will try to hold them firm by threatening the wrath of the base.
Before locking the nation in an ultimate-fighting cage, it is worth looking at the one thing the upcoming battle will not be about: It won’t—repeat won’t—be, as Cruz claims, about control of the Supreme Court “for a generation.” And the Court’s current shorthanded status may produce results more complicated than the series of 4-4 affirmances currently being forecast.
To start at the beginning: A 79-year-old man died in his sleep.
This entirely unsurprising event stunned millions. I confess I was one. I see the justices regularly; I suspected at some level that Scalia was in decline. His color and posture were not good; his questions from the bench were sometimes puzzling. Nevertheless, the sheer force of the man’s personality made the idea of a world without him seem unthinkable. After 30 years, he had come to define the Court for two generations of lawyers and citizens.
Still, he was old, and for all people, great or humble, old age is but the anteroom of death, which comes when it chooses, not when planned for. And that’s my point: At the Court’s marble palace, death’s anteroom is crowded. Justice Ruth Bader Ginsburg will be 83 in a few weeks. Justice Anthony Kennedy will be 80 this summer. By the beginning of the next term, Justice Stephen Breyer, the young scamp of the senior crowd, will be 78.
I admire all three of these justices, in different ways, and as the Italians do, I wish them each 100 years. But the actuarial tables offer a somber prospect over the next four years. Scalia’s departure is the opening act, not the conclusion, of a historic generational shift.
If President Obama’s pick is confirmed, the Court’s moderate liberals will have a slight advantage in the head count.
That’s true for at least the next term, but not much longer. The new shape of the Court is much more likely to be determined by the next four years than by the next four months. The “partisan balance” of the Court may shift more than once.
Look at the current 4-4 split. Reporters take for granted that the Court’s high-profile cases—on issues such as abortion, the president’s immigration plan, religious exemptions under the Affordable Care Act, and others—will lead to deadlocks. Each lower-court decision would then be affirmed, leaving a strange patchwork of decisions, some applying nationwide and others only in specific circuits.
But as the historically wise journalist Lyle Denniston pointed out to me, history suggests that the justices will strive to avoid deadlock. Split courts have often set key questions aside for reargument in the coming term. (In 1985, for example, Justice Lewis F. Powell Jr. missed a third of the arguments for health reasons; the Court held three cases to reargue when he was back on the bench.) And, in the past, seemingly polarized justices have crossed over to forge narrow results, deciding specific cases while leaving larger issues for another day.
Chief Justice John G. Roberts, as any listener to right-wing radio knows, has crossed on occasion to vote with the four moderate liberals. But he’s not the only one. Justice Stephen Breyer, listed in the whip count as a “liberal,” is often open to persuasion by conservatives. Justice Elena Kagan listens when her colleagues talk as well. As an example, remember National Federation of Independent Business, the first Affordable Care Act case. The most radical and surprising result in that case was the Court’s decision that Congress could not withhold Medicaid funding from states that would not expand the program to cover more than the very poor.
That vote was 7-2, with Breyer and Kagan joining Roberts and rest of the right. In a few decades, we will know what really produced this coalition. But it is a sign that, inside the Court, the quest for agreement goes on. These may be partisan “blocs,” but they aren’t House Republicans and Democrats. The blocs may be porous.
I don’t disparage the importance of the fight that has begun; its long-term effect may actually transcend the identity of the new justice. The sudden intransigence of the Republican right is explicitly designed to harness the Court in the public mind to the current partisan dysfunction. How will it affect the four remaining conservatives to be told that they are part of—and agents of—the GOP general-election platform?
What, for that matter, does Chief Justice Roberts think of all this? We know that the chief sincerely yearns for a public perception that the Court is apart from partisan politics. I suspect that he does not believe that “the American people should have a voice in the selection of their next Supreme Court Justice”—at least not a direct one. How will he react to the vicious attacks of his former fellow clerk, Ted Cruz, who said not long ago that Roberts’s appointment was a “mistake” that led the Obamacare case to a “political outcome”? Or to Cruz’s new campaign to strip jurisdiction from the Court and impose term limits on its members?
Politics in Washington, writ large, is increasingly predictable. But history suggests that inside the Supreme Court, it may be a good deal less so. The current Republican tantrum may change minds inside the marble palace; it may do more to break a Republican “bloc” than Barack Obama ever could.