As The Supreme Court Turns...
With the unexpected death of Supreme Court Associate Justice Antonin Scalia, the 2016 political landscape has shifted dramatically, from the current divided government between a Democratic president and a Republican-controled Senate to those who want to be the next occupant of the Oval Office.
With this weekend’s news, the intersection of presidential campaigns, separate government institutions sharing power, and the power of constitutional law all comes into a fiery focus for the remainder of the political year. And as a faculty member in all of these areas, this news creates a whirlwind of teaching opportunities.
Several of my classes are on constitutional law, from separation of powers and federalism to civil liberties and rights. Some of the best readings of Supreme Court opinions that my students comment on were Justice Scalia’s opinions, often his dissents. Scalia’s judicial belief in originalism is a core philosophical approach to judicial decision-making, countered oftentimes by fellow associate justice Stephen Breyer’s ‘living constitution’ jurisprudence.
And while many commentators will dissect Justice Scalia’s influence and contributions to American law, it’s the political dynamics that exploded just hours after the justice’s death was announced.
Declarations by Senate Majority Leader Mitch McConnell, followed by all of the GOP presidential candidates, to delay the ‘advice and consent’ (i.e., the confirmation) of an Obama nominee has demonstrated the broken nature of American government.
As the rancor developed, I immediately thought to another course that I teach, Introduction to American Politics. One of my classroom themes is that popular culture can teach us about American politics.
I show my students the episode from the TV show “The West Wing,” entitled “The Supremes.” With a Democratic White House and a Republican-controlled U.S. Senate, a “conservative anchor” on the Supreme Court has just died, and the political games begin with how to replace that seat on the nation’s highest court.
Early on in the vetting process, the White House staff interviews a liberal judge, who knows very well that she is considered “window dressing” for the consideration that draws the ire of the Republicans and declarations of a “bold choice” by liberal Democrats.
The leading contender is a moderate who, in an interview with the president, won’t commit to any “litmus test” on issues; instead, the moderate claims an “allegiance to the eccentricities of a case [that] will reliably outweigh my allegiance to any position” the president wished he held.
The president’s staff recognizes the political dynamics and agrees to a point that only a moderate would be tolerated by the opposition party, but then, thanks to two cats, a staffer proposes the idea of replacing the current elderly chief justice with the liberal candidate, and allow the Senate Republicans to pick a staunch conservative for the vacant seat.
After a series of presidential exhortations against the conservative candidate, the president considers the offer of the chief justice to retire, replaced by a fellow liberal, while the conservative takes the seat and the great battle continues on the Supreme Court.
There’s even a discussion about the Senate holding up the next vacancy on the court, much like what we heard from the today’s Republican presidential candidates about how the next president should be the one to pick the replacement, all with the hopes that it is one of them.
Ultimately, the fictional president is convinced to put both the liberal and conservative up for nomination. The ‘game’ of politics recognizes the value of opposing sides having a say on the nation’s court.
In comparison to Scalia’s passing, could a potential similar deal be cut? Instead of the elderly chief justice, perhaps one of the leading liberal voices—and one of Scalia’s close friends who would often spar with the conservative perspective—would consider her age and the opportunity to step down? Associate Justice Ruth Bader Ginsberg has been the point of speculation about when she may retire, and has actively denied such thoughts. But could the death of her fellow opera-loving conservative justice prompt her to consider such a scenario?
While television seems to play out more and more in political reality, the chances of a bitter and divisive battle over the next 11 months could only reinforce the polarization of the nation in the midst of a presidential campaign.
Both sides would argue for their respective strategies when it comes to filling Scalia’s seat, and consideration of changing a seat from conservative to even a “moderate” position will be one worthy of the annuals of future history.
But if both sides got what they wanted—two young, judicial ideological justices who would continue the fascinating and combative legal arguments that both Justices Scalia and Ginsberg brought to their long tenures on the court—then who could say they lost Scalia’s seat?
Maybe television is a better predictor of reality than reality itself. But for those who have seen the episode, the chances are slim that Donna’s parent’s cats get seats on the high court in today’s hyper-polarized environment. But it would make for great television, if nothing else.