While Congress can add justices to the Court, it can only do so if its act is “necessary and proper.”
The English fought a civil war over the issue of sovereignty. Charles I believed it lay essentially with him—by divine right no less. He asserted his right to tax subjects without Parliament’s agreement and to dismiss Parliament, which was in his view just advisory. In contrast, almost all members of Parliament believed that they shared in sovereignty and some thought parliament, not the king, was the supreme authority.
That division led to a bitter political struggle with apocalyptic rhetoric and then resort to the battlefield. The stakes were high, the methods of combat full of treachery. It ended only when the forces of Parliament beheaded the king. The question of sovereignty was not resolved intellectually, but it was decided militarily at Naseby and there is no doubt today about parliamentary supremacy.
Our confirmation wars today also reflect division over sovereignty. One party essentially believes that the Constitution as written is our fundamental law. Thus, sovereignty resides in two thirds of the legislature and three quarters of the state legislatures since only they can change our Constitution. This sovereignty is popular and supermajoritarian. The other party believes that the Constitution must be updated to reflect the progressive arc of history. Perhaps the direction of history is Progressives’ new divinity! To capture the arc of history, sovereignty ultimately needs to reside in the Justices. To be sure, the Justices must act according to rules of recognition that are themselves validated by progressive elites, including law professors, the mainstream media and the elite bar. But these two views of sovereignty are fundamentally incompatible.
On this account, Roe v. Wade transcends the issue of abortion, because its reasoning is so incompatible with following the Constitution as written. It is thus a powerful demonstration of one party’s view of sovereignty and an affront to the other party’s understanding.
We thus should not be surprised that our confirmation disagreements are bitter, marked by the rhetoric and treachery that accompany wars. And they have worked themselves to a crescendo now because filling the current vacancy may determine the nature of sovereignty for some time. Anthony Kennedy often cast ideologically conservative votes, but in multiple opinions on social issues and in rhetoric talking about the “transcendent dimensions of liberty” he was a member of the progressive sovereignty camp. He just sometimes disagreed about the direction of progress.
Thus, as the fundamental nature of the dispute over constitutional interpretation has been revealed over the years, the norms surrounding confirmation that made them peaceful and dignified affairs naturally disintegrate. It can hardly be otherwise. Unlike ordinary political issues, questions of sovereignty are difficult to finesse or compromise. Moreover, each side can appeal to history, because different periods of American history reflected different conceptions of sovereignty. Originalism was entirely dominant in the first hundred and fifty years of the republic. But progressive constitutionalism did hold sway in much of the twentieth century and many hold that to be a glorious part of our history, Roe very much included.
As with the English Civil War, this issue will not ultimately be resolved intellectually. Only when one party achieves a period of dominance like the Republicans after our own civil war and the Democrats during the New Deal will the issue be settled for generations to come.