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.