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Ted Cruz and the new norms of Supreme Court nominations

Cruz said Wednesday that there is plenty of precedent for running the court with less than nine justices — which is true, by the way. 

Sen. Ted Cruz suggests if the vacancy created by the death of Antonin Scalia stays open for a few years, the court will manage just fine.
REUTERS/Aaron Josefczyk

The latest news in the development of the new norms around Supreme Court nominations comes from Ted Cruz. It’s consistent with — but a bit more explicit than — the last development.

That previous development was a statement by Sen. John McCain, campaigning for one of his embattled Senate Republican colleagues, that it was vital to keep the Senate in Republican hands because the Republicans would all stick together to defeat anyone Hillary Clinton nominated to the Supreme Court. McCain turned out to be wise enough to walk that statement back a little bit, but not in a way that was truly consistent with the old norm of senators insisting that Supreme Court matters must remain above partisanship.

Now comes Sen. Ted Cruz to one-up even McCain’s first, half-taken-back statement. Speaking at a campaign rally for yet another endangered Senate Republican, Cruz said Wednesday that there is plenty of precedent for running the court with less than nine justices. (That’s true, by the way: the size of the Supreme Court has ranged from six to 10 justices over history.)

So if the vacancy created by the death of Antonin Scalia stays open for a few years, the court will manage just fine, Cruz suggested. (There is a bit of a problem with an eight-member court, divided between four liberals and four conservatives, which is that the court might deadlock quite often. But that wouldn’t threaten the survival of the republic. It would mostly raise the stakes over the identity of the justice who would be able to break all those ties, one way or t’other.)

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Cruz tap-danced around the key question, of whether we are now entering a new era of straight party-line voting on Supreme nominees. If so, and if the Oval Office and the Senate majority are not controlled by the same party, we could end up with three or four vacancies that would last until Senate control aligns with the president’s party, or, assuming that enough vacancies had accumulated, perhaps a grand bargain could be reached involving several simultaneous appointments (a possibility that I mentioned in a previous post).

In that piece, I also mentioned that, in addition to the Scalia vacancy, Justice Ruth Bader Ginsburg is 83, Anthony Kennedy is 80 and Stephen Breyer is 78. The rest of the justices are much younger.

Cruz avoided openly advocating for a stonewall-all-Clinton-nominees approach, although that idea is present between the lines.

Cato Institute legal scholar Ilya Shapiro made it explicit in an essay in “The Federalist,” suggesting that Republicans should refuse to appoint any high court nominees put forward by Clinton. Shapiro wrote: “As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally,” Shapiro wrote. “I’m not sure such a position is politically tenable — barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president — but it’s definitely constitutional.”

And, of Minnesota note, conservative legal scholar Michael Stokes Paulsen of St. Thomas Law School, made a pretty radical-sounding (but nonetheless constitutional) suggestion in a National Review essay that Congress should adopt a law setting the new size of the Supreme Court at six justices. If such a law took effect now, it would end the speculation over who will fill Scalia’s seat, since that seat would no longer exist. And it would mean no new justices could be named to replace the next two to retire or die.

Wrote Paulsen: “A smaller court means diminished judicial activism. As the Court’s size shrinks, activist majorities become mathematically harder to put together. Four votes out of seven is harder to achieve than five of nine.”

It’s easy to suspect some partisanship in that idea, if one expects Hillary Clinton to be the next president, since it basically removes her power to even nominate a justice for several years. And Clinton would almost certainly veto such a bill if it reached her desk. But I have some sympathy for Paulsen’s “judicial activism” point. The Supreme Court has moved closer in recent years to becoming almost like another house of Congress, only with unelected members serving lifetime appointments and nonetheless having the final say on what can become a law, a final say that trumps the wishes of the American people, in Congress assembled.

I actually hold to the generally blasphemous belief that the authors of the Constitution never intended the Supreme Court to have this much power.

Marbury v. Madison, the famous and revered case in which the Supreme Court first asserted the power to strike down acts of Congress, was actually a hyperpartisanized cesspool of a power grab. But I recently attended a lecture at the University of Minnesota by Joseph Ellis, one of the leading historians of the founding period, whose most recent book on that topic, titled “The Quartet,” I wrote about.

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After that piece ran, I attended Ellis’ endowed lecture (named in honor of historian Paul Nagel and his wife, librarian Joan Nagel) in which Ellis discussed “The Quartet” and was asked, during the Q and A, whether he believed that the Framers of the Constitution intended for the Supreme Court to have as much power as they have now, the power to overrule Congress and the president on what laws can be passed and the ultimate responsibility for deciding what the words in the Constitution mean.

Ellis’ answer started with a flat: “ No.” Which got a laugh.

“If you read the Constitution on judicial power, you tell me what the hell are they thinking?” Ellis asked. “What they’re thinking is: the last thing we want this thing called the Supreme Court to be is supreme. We don’t want that.”

The power that we’ve come to call  “judicial review,” which amounts to the power of the Supreme Court to overrule Congress as long as they claim to be doing it in the name of interpreting the Constitution, was nothing anyone had in mind at the framing, Ellis said.

If you read Article III, which establishes the Judicial branch, you will find that it authorizes the federal judiciary to decide “all Cases, in Law and Equity, arising under this Constitution.” That’s the basis for Chief Justice John Marshall, in Marbury v. Madison, to assert that the Supreme Court can strike down federal laws. But if that’s what it meant at the time, it’s hardly clear from the language in the Constitution, and could easily have been made clear.

Ellis, for one, doesn’t think that’s what anyone meant at the time. It‘s a power not specifically granted, which has grown over the years. (The Supreme Court never actually struck down a federal statute with the acquiescence of the other branches, until its 1857 Dred Scott ruling, one of the most infamous cases in its history.

On the other hand, Ellis said that night at the U of M, the country has grown used to the idea that the Supreme Court has this authority and fears the government might be lost without it.

I asked Ellis whether he saw any chance that the country might head back in the direction of the Framers’ original plan, which didn’t include the supremacy of the Supreme Court over the other branches, and he said no, he didn’t think so. Americans believe that someone or some group of someones must have ultimate power to decide disputes, and they have become comfortable with the Supreme Court in that role.

Believing this was easier in some past periods when, he said, the public had the impression that the justices were playing it straight and not just voting their own beliefs. He mentioned that one justice (Hugo Black) who voted for the famed Brown decision ending “separate but equal” in public schools and other important civil rights rulings, even though Black himself was a former member of the Ku Klux Klan. That sort of thing, Ellis seemed to suggest, helped the public accept the court as the body that could rise above just imposing its own views. But, he added:

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“I do think that what we are going through now is the realization as a people that the Supreme Court itself is a political body. It’s not in super communication with the gods, OK? I’m telling you, I know a lot about the founders, and none of those people were gods. They were all imperfect. I don’t know too many Supreme Justices, but none those people have direct communication with the gods either. But we want to believe that the members of the court sit down, there is this process of deliberation that is sophisticated and nonpartisan.

“That’s not true. And in fact, it’s never been true.”

My own first deep dive into matters Constitutional was for a long series, published in the Star Tribune in 1987, the bicentennial of the Constitutional Convention, and subsequently published as a book. It was titled “Our Constitution: The Myth that Binds Us.”

A lot of things we believe about the Constitution are not really facts but are cherished myths. But our common belief in those myths binds us as a nation, as long as we mostly believe in them.

Recent developments in the overt politicization of Supreme Court appointments and rulings undermine those myths and, one might fear, loosen their power to bind us together.