The Attack on Constitutional Norms: The Case of the Supreme Court  

People often assume that most bad things are unconstitutional, but that is not true. Instead, many bad things are prohibited by norms that are not part of the Constitution.

The importance of constitutional norms – that is, non-legal norms that concern constitutional institutions – is illustrated by some recent controversies concerning the Supreme Court.

One of the most serious violations of a constitutional norm is that of court packing. For many years, Franklin Roosevelt’s court-packing plan was seen as one of his greatest blemishes. Today, Democrats are again talking seriously about court packing. Yet, whatever else one says about it, court packing is constitutional. Nothing in the Constitution prohibits Congress from changing the number of Justices on the Court. But the Court obviously does not function as it is supposed to if Congress can change the number of Justices to change the composition of the Court.

Another serious violation of constitutional norms is the refusal to vote on Supreme Court nominees. It has long been thought to be reasonable not to vote on a nominee in the latter part of a presidential election year. Exactly how late is hard to say. The refusal to vote on Merrick Garland’s nomination to fill the vacancy created by Scalia’s death in February of 2016 appeared to be an extension of that traditional norm. (Of course, it is not clear how much that norm was still in existence. Republicans argued that Democrats would not have voted on a Republican nominee if the positions were reversed and some Democrats agreed with them.)

It is now widely thought that if the Democrats retake control of the Senate in November that they will not vote on anyone President Trump nominates for a Supreme Court vacancy. This would keep the vacancy open for two years—and that, of course, could be extended to longer periods.

While leaving Supreme Court vacancies unfilled violates an important norm, it too is probably constitutional. There is nothing in the Constitution that requires the Senate to vote on nominees. Nonetheless, the Supreme Court will not function as it should if vacancies are left unfilled.

With our norms under attack, the obvious question is how to support them in this era of political polarization. One possible solution is for some centrists from both parties to compromise in order the support the norms. That is what happened in the past concerning the filibustering of lower court nominees. With the Democrats filibustering George Bush’s circuit court nominees, a gang of 14 centrist Senators, 7 from each party, reached an agreement in 2005 that said that the filibuster would not be used except in “extraordinary circumstances.”

The agreement was important. It saved the power to filibuster lower court nominees by an agreement to use that power only in exceptional situations. In fact, Brett Kavanaugh was confirmed as a D.C. Circuit judge as a result of that compromise.

This shows how a compromise by the center can reestablish a norm. But the compromise did not last forever, and in 2013 Senate Majority Leader Harry Reid led the Democrats to abolish the filibuster for lower court nominees through the nuclear option.

How then to reestablish our norms? One way is to have centrists, who are less enthusiastic about the actions of the more extreme members of their party, join together in support of the norms. While this method can sometimes work, it may not be enough to save many of our norms.

Reader Discussion

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on October 23, 2018 at 09:36:52 am

Why in the name of God would anyone want to preserve or restore any of the norms identified in this post?

The norms of the Senate, filibuster, blue slips and the like, that are largely responsible for the way Congress has failed to function for the last 50 years.

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on October 23, 2018 at 13:31:50 pm

The flouting of "Constitutional norms" is but a subset of the norms presently being flouted--openly, violently, proudly, self-righteously--by the progressive Left. And the word "norm" is too measly anyway, and a more dysphonic word would be hard to find.

Here is Iris Murdoch's version:

What may be called the ‘soul’ of the state, its morale, is (in liberal political terms) a surrounding atmosphere which is essential to the mechanism but not part of it. . . .The machinery of the decent state is continually serviced by an atmosphere of moral good will and high ideals which is essential to its survival.

At present, the atmosphere Murdoch speaks of has been poisoned by the progressive Left so thoroughly that a moral good will cannot breathe it. Our high ideals are under relentless, shrieking assault by the progressive Left, who pretend that they have better ideals, but those self-proclaimed "ideals" of the progressive Left all reduce merely to a line in a John Lennon song (Imagine all the people sharing all the world). That is a plaint, not an ideal, and it is in no wise an end for which "governments are instituted among men."

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on October 23, 2018 at 14:10:17 pm

SCOTUS doesn't even adhere to sane "constitutional norms"

WTF is "precedent"? "Settle law"? "Stare Decisis"? "Deference"?

And don't get me started on the fact that they will call an unConstitutional law "constitutional enough over the objection of 4 Justices.

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John Ashman
on October 25, 2018 at 02:06:47 am

We don't live in a constitutional republic anymore. That dream is dead. The Republic,as established by the Founders has,by incremental steps been reduced to a mobocracy democracy controlled by an Administrative State who,in turn,is controlled by very powerful men behind the scenes. In essence,all 10 Planks to the Communist Manifesto (albeit in modified form) has been woven into the American fabric. This could not have been accomplished without the aiding and abetting of a corrupt judiciary. They twisted,misinterpreted and misapplied the Law to such and extent that they allowed such monstrosities as the Income Tax,the Inheritance Tax,the Dept.of Education,the Federal welfare/warfare state plus a myriad of other Federal functions to come into existence. These functions should be reserved for the States,the People or should not even exist at all. It is sad to say that the Left has gotten everything they ever wanted.

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libertarian jerry

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