Ted Cruz and the new norms of Supreme Court nominations

REUTERS/Aaron Josefczyk
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.

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.)

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.

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:

“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.

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Comments (16)

  1. Submitted by RB Holbrook on 10/28/2016 - 12:18 pm.

    The Framers and Judicial Review

    The practice of judicial review was well-established before the Marbury decision. Between ratification of the Constitution and Marbury, state and federal courts invalidated 31 statutes as unconstitutional. Before ratification (and after 1776), courts in at least seven states held statutes to be void as violations of the state constitution or some other law. To say the Framers could not have intended such a practice begs the question of why they did not prohibit it, since it must have been familiar to them.

    • Submitted by Jim Million on 10/28/2016 - 07:02 pm.

      Wondering, RB

      Would a somewhat smaller SCOTUS, perhaps by logistical need, be more selective in those cases it takes?
      One aspect of the currently smaller court seems to suggest that might be so. It seems more cases than usual have either been rejected or sent back down. Maybe its just more news coverage these days that seems to suggest that correlation.

      • Submitted by Hiram Foster on 10/29/2016 - 08:28 am.

        Would a somewhat smaller SCOTUS, perhaps by logistical need, be more selective in those cases it takes?

        There is little reason to think so, at least as long as the court is just one or two justices short. Bear in mind that even now, the work load of the court is far lighter than any other federal court in the country. No other federal court takes the summer and early fall off. I suspect most of the heavy lifting involved with writing decisions is done by clerks whose numbers could easily be expanded.

        I believe the numbers show that the Supreme Court takes fewer cases than it used to. It could reduce that number and still retain it’s importance in American jurisprudence. Also, bear in mind, that under the constitutions and statutes there are certain cases it must take, cases involving conflicts between the circuits, for example.

        • Submitted by Jim Million on 10/30/2016 - 10:46 am.


          Clarification appreciated here. I wonder if “conflicts between the circuits” become a greater burdon. Don’t recall reading much with respect to that.

          It seems to me the Court has run quite well, except perhaps for case burdon. I see no indications of Justice “group think” we would observe in other long-term personal/professional relationships. Perhaps SCOTUS is the last-standing institution of “respectful disagreement.”

          Thanks for your level knowledge.

      • Submitted by RB Holbrook on 10/31/2016 - 09:17 am.

        More Selective?

        I’ve seen anecdotal reports that SCOTUS has been unwilling to take cases that are likely to result in a 4-4 tie. Like you, I don’t know if that’s just anecdotal or if there is a real correlation. I also don’t know if that’s a good thing or a bad thing.

        BTW, SCOTUS is not required to take any cases. A circuit split is one factor that the Court considers in deciding whether to take a case, but it doesn’t create a requirement.

      • Submitted by Paul Brandon on 10/31/2016 - 11:06 am.

        The deadlock court

        is taking fewer cases because it is avoiding cases that could end up in a tied vote, which would be judicially meaningless.

  2. Submitted by Joel Stegner on 10/28/2016 - 01:48 pm.

    New norm?

    You insult our intellegence by suggesting failure to consider appointing Supreme Court justices is a new norm. The language is advise and consent, not delay and ignore.

    The Senate is clearly expected to consider the individual qualifications of every nominee, vote their conscience and explain any refusal to approve. Let’s say a Republican believes only white conservative men should be on the court. They are free to vote that way, but justify it.

    The fact that a President nominating them is how the process works. That does not disqualify a candidate. There is no reasonable way to think the Founding Fathers thought that.

    The Republicans who argue that are lazy cowards who lack the courage of their convictions. Build an individual case against all candidates you don’t like and share it with the voters. If they agree, you get to keep your cushy job and lifetime pension. If not, then go away to be replaced with someone who upholds the constitution.

    Of course, the author was able to find “legal scholars” who apologize for this dereliction of duty – someone has to defend the indefensible.

  3. Submitted by Logan Foreman on 10/28/2016 - 03:49 pm.

    Made clear??

    Like the 2nd Amendment?? Another example of recent nonsense from the right

  4. Submitted by Jon Kingstad on 10/28/2016 - 11:10 pm.

    Reverse Court packing

    Too bad FDR never thought of Cruz’s cunning plan: just wait for the present members to die off and then reduce the size of the Supreme Court. FDR blundered with the all too straightforward idea of expanding the Court so that the right-wing justices of that time could be outvoted.

    If it were not failed presidential candidate Cruz and faithful so-called “scholars” of the Cato Institute, no one would ever imagine changing the size of the Supreme Court or the means by which they are selected. Are there so many of our republic so blind as to not see what these sentiments really mean?

  5. Submitted by Hiram Foster on 10/29/2016 - 08:40 am.

    Intermim appointments

    To me, one of the sleeper decisions the court has made that is now beginning to loom very large is the case, basically striking down the president’s power to make interim appointments, specifically here to the federal bench.

    What I think the court overlooked in that decision, was the founders intent to ensure balance between the executive and legislative branches. Consider the problem. By establishing two independent and equal branches of government, the risk created was the possibility of stalemated government, one where neither branch could move or influence the other. In the case of the nominating power, after making the nomination, there was no way for the executive branch to pressure the senate to move the nomination forward. The founders’ ingenious solution was to give the president the power to make interim appointments. Effectively, they created a partial deadline for consideration of appointments. The senate could delay or refuse to consider appointments, but it would be with the knowledge that if they did, the president would have the option of filling the vacancy temporarily once the senate recessed. This was a remarkable example of constitution drafting, revealing an amazing understanding of how the theoretical framework of government being created would work in the real world of politics in the centuries to come.

    And the Supreme Court in it’s thoughtless and superficial intellectual process, totally blew it, creating the incipient constitutional crisis we are facing today.

    • Submitted by Jon Kingstad on 10/29/2016 - 08:37 pm.

      The Founders couldn’t imagine

      You’re most likely right about that decision. But where in the Constitution does it provide the executive with the power to make interim appointments? I don’t think it does. But your suggestion of how to solve the problem is good. I think it would follow from this train of logic: the President has the power under the Constitution to nominate a Supreme Court justice subject to the Senate’s “advice and consent”. If the Senate fails, or in Merrick’s case, refuses to provide it, for lack of a majority, their silence is equivalent to consent. I think Merrick should just show up ready for work at the opening of the Court’s next term. What follows is a more practical concern of how to manage a Supreme Court where you might have equal division of whether such a justice so appointed would be accepted. That would indeed be a “constitutional crisis.” But who knows? Maybe there are five justices there already who would say: “welcome brother!”

      I’m sure the Founders never imagined the ridiculous situation in this country today. On the other hand, they were more concerned with limiting the power and authority of a national government. But, honestly, I think, from what I’ve read about the Founders in their political lives after the Constitution, they would be as divided among themselves about modern events as we are as a people today.

      • Submitted by RB Holbrook on 10/31/2016 - 09:21 am.

        Interim Appointments

        “But where in the Constitution does it provide the executive with the power to make interim appointments?” Article II, Section 2: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

  6. Submitted by John Appelen on 10/29/2016 - 10:24 pm.


    It is somewhat pointless to have 9 if most of the thorny decisions are 5/4 or 4/5.

    I mean why even have Scalia / Ginsburg if they always rule(d) with their political philosophy instead of the Constitution. It seems we could go down to 7, 5 or 3, and have the same quality of rulings.

    LGBT marriage was a good example of us actually only having 1 impartial Justice who makes most of the decisions.

    • Submitted by RB Holbrook on 10/31/2016 - 09:19 am.


      Your comment is something of an insult to the members of the Court. I was no fan of Justice Scalia, but I always thought he made his rulings according to his reading of the Constitution. I thought his reading was very wrong, but I always thought it was genuine.

      Ditto Justice Ginsburg. I don’t see why an ideological bent translates into “impartiality.”

  7. Submitted by Hiram Foster on 10/30/2016 - 05:56 am.

    The irony

    Isn’t it ironic that this Supreme Court, with it’s carelessness and judicial hubris may have caused it’s own destruction? Of the three branches of government, the Supreme Court is the most tenuous. It isn’t elected by voters who support it. It doesn’t possess an army. It has even fewer divisions than the pope. All that it has is good will, the belief that in a government of laws and not men, it is above politics. That good will has been frittered away to the point where the court as an institution has no support anywhere. The senate no longer feels obliged to fill vacancies. The executive, after a bit of fuss about failure to consider it’s nominees, seems perfectly content to leave the court short handed. In the most bitterly contested presidential election of my lifetime, the fate of the court is a total non issue. As for the future, leading senators and commentators seem set to allow the court to simply melt away over time.

    Maybe this, what’s happening right now, is what The Federalist Papers warned us about.

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