Winning the Court, Losing the Constitution

When Mitt Romney announced his openness to considering a Supreme Court nominee last Tuesday, he all but ensured that Republicans will be able to confirm a conservative replacement (now announced to be Amy Coney Barrett) for Ruth Bader Ginsburg, one of the Court’s most liberal justices. His statement, however, also did something that we aren’t accustomed to seeing in politicians’ press releases: intentionally or not, it hinted at profundity. In it, Romney declared that his decision was based not on a general concept of “fairness,” which so often lapses into subjective justifications for self-interest, but on “the immutable fairness of following the law” which, in the present instance, is “the constitution and precedent.” This is a worthwhile sentiment, and the circumstances surrounding the vacancy demonstrate just how out of fashion it is.

Sources of Legitimacy

Politics is about power: about who should have it and how it should be used. But, in any free government, it can’t be about the unlimited accumulation and exercise of power. Given the profound differences that exist in Americans’ conception of the common good and political morality, the classic question is what shared limiting principle exists to keep political actors within the realm of fairness and decency in their pursuit of and exercise of political power?

There is no shortage of answers to this question. In the current situation, Democrats have quite a few on the tips of their tongues: the Senate must do the same thing it did when a Democrat occupied the White House; it must allow the people to decide the question; it must follow the “dying wish” of the late justice. But as these examples show, such appeals to generic “principle” too often amount to ad hoc justifications for the outcomes that one side wants. The Court has given the Left its most impressive victories, and losing that incredible power to reshape society is such an unthinkable prospect that they were forced—in 2016 and 2020—to appeal to any principle they could think of to prevent it. As Romney further remarked, the left has “gotten very used to the idea of having a liberal court, but that’s not written in the stars.”

It’s not written in the Constitution either. The Constitution was long recognized as containing the consensus rules of the game—the standard to which all actors can appeal for legitimacy. It does not tell us what substantive goals to pursue, or how leaders should use their authority, but it sets the outer boundaries of that authority and specifies those actions that are not simply “wrong” or “unfair” but illegitimate.

It could serve this purpose because it was created by the universal consent of the states; its amendments were approved by overwhelming majorities; and the American people have lived (mostly) peaceably under its rules for nearly two and a half centuries. Its pronouncements represent not the passing preferences of this or that party, but the standards accepted by generations. While people have long disagreed with one another about political morality, and often disagreed about the meaning of the constitution, they have generally agreed with the principle that the constitution is the arbiter of basic legitimacy: The partisan struggle for political power is legitimate when it stays within the bounds established by the constitution; it is illegitimate when it transgresses them.

This standard has clear guidance for the current kerfuffle. America’s constitutional structure abhors concentrated power, which is liable to misuse and serves as an incentive for political actors to grasp it by any means necessary. As such, the Constitution divides the authority to appoint justices by requiring the “consent” of the Senate. When the Senate, however composed, does not approve of a president’s nominee, it has every right to refuse to give its consent. So in 2016, when President Obama nominated Merrick Garland to the Supreme Court, Mitch McConnell and Senate Republicans had no reason to apologize for saying no.

By refusing to entertain the Garland nomination with hearings, McConnell was undoubtedly playing political hardball. But the Senate majority, which can make rules for the body, and schedule hearings and votes as it sees fit, unquestionably has the constitutional authority to do so. Indeed, the majority’s actions do not even push the boundaries of its constitutional authority. The prospect that the Senate will refuse a president’s nominee is, presumably, the only reason it has the power to begin with.

It is a safe axiom of republican government that when a significant portion of society would rather destroy the regime than live with policy outcomes it disagrees with, the hope for restoration is slim.

One is free to disagree with and protest the Senate’s decision, free to think that Garland would have been a worthy justice, free to think that it is more fair and civil to give every president’s nominee an open-minded hearing. Likewise, one is free to disagree with the choice to consider Trump’s nominee, free to believe that it would be fairer to treat both nominees the same way, free to believe that the election should decide the issue. And importantly, one is free to put these moral questions to the voters. But such arguments should be distinguished from the question of legitimacy.

That distinction, however, seems to be fading in the public mind. Increasingly, personal and partisan views of justice or fairness are expected to inform not just our political goals, but our concept of legitimate political activity. Even more dangerously, the idea of contorting the constitutional order to match these superior moral standards is becoming more and more mainstream.

The Left’s Vision for the Future

Democrats and the media have blasted the Senate majority’s decision not just as poor, or imprudent, or likely to set a bad precedent, but as fundamentally illegitimate. Reaching beyond constitutional authority to their own moral standards, it just doesn’t seem fair that their president was unable to fill a vacancy before an election and a Republican one can. And since they see this act as fundamentally illegitimate, they can, in retaliation, declare that “nothing is off the table.”

Should they win back the Senate and presidency, they threaten to answer McConnell’s perceived hypocrisy with retaliation that explicitly aims to transform long-established institutions so as to better attain their partisan goals. Their threats, like McConnell’s actions, are all technically within the bounds of constitutional authority and therefore would be legitimate. But, unlike McConnell’s actions, these plans would go beyond the standard political process to actively reshape institutional forms for explicitly partisan purposes. In doing so, they would likely do irreparable damage to the idea of the constitution and its structures as universally accepted rules of the game.

Court packing would turn the Supreme Court into the ball in a game of partisan ping-pong, crushing any hope that it might regain its generally accepted legitimacy as an honest interpreter of the law. Adding justices for explicitly partisan ends, moreover, would be truly unprecedented. When FDR made his ill-fated attempt, he at least pretended that he had a neutral, objective goal in mind (the old guys just needed some young blood to keep them spry).

Abolishing the filibuster has nothing to do with the judicial vacancy (indeed, it was the abolition of the judicial-confirmation filibuster that allowed McConnell and company to confirm all of Trump’s justices and judges in the first place). It would set us up for a future of unchecked majorities from one side pulling the country headlong in the direction dictated by its increasingly radical base, at least until the other party takes over and does the same thing. Some activists have even suggested that impeachment—the constitutional process we were (correctly) told earlier this year was a weighty, solemn duty of Congress—should now be openly used as a simple, procedural stall tactic.

The coup de grâce in this threatened revolution would be the addition of new states to the Union for the explicit goal of gaining Democratic senators and electoral votes. Such an action, again with such an openly admitted purpose, would be the ultimate subordination of governance to personal and partisan power. The last two states admitted—Alaska and Hawaii—were done so on a bipartisan basis. Even in the wildly divided antebellum period, states were typically added as part of a grand compromise. To intentionally reshape the Union merely to manipulate the Senate and Electoral College would be such a radical act that many might start wondering why, if states can be added for partisan reasons, others can’t remove themselves?

But the legitimacy and longevity of our political institutions are less important than the ideological goals of the left. If the institutions as they are do not provide the desired outcomes, they might as well be destroyed. In more normal times, one might think these suggestions are merely empty threats, but as politicians cheer on movements physically destroying American cities, why would we expect moderation when it comes to our already embattled institutions? It seems entirely possible that the intentional undermining of our political institutions will now be a regular part of political discourse and a threat that hangs over every election. It is a safe axiom of republican government that when a significant portion of society would rather destroy the regime than live with policy outcomes it disagrees with, the hope for restoration is slim.

How We Got Here

All of this bitterness surrounding Supreme Court vacancies, fittingly enough, comes from the same desire to abandon the standards established by the constitution in favor of higher, more generic ones. The Supreme Court, having become a full-time constitutional revision council, is the most powerful branch when it comes to shaping the long-term trajectory of American government and society. With the snap of their fingers, five justices can undercut every governing institution in the country by creating new rights never mentioned in the constitution and never before affirmed by the people’s representatives or approved by the people through an amendment ratification. It therefore represents the ultimate power to break free of the standards the constitution establishes.

This power to elevate external standards of legitimacy above the clear, accepted ones of the constitution is perfectly encapsulated by the doctrine of substantive due process, which Justice Thomas has described as “a secret repository of substantive guarantees against unfairness.” Just like those on the left who argue that McConnell’s actions just seem so unfair that they must be illegitimate, so substantive due process presents justices with the power to declare that certain laws just seem so unfair that they must be constitutionally illegitimate.

So we return to a familiar theme: Our constitutional structure abhors concentrated power. Given the incredible power that has come to be concentrated in the Court to actively reshape constitutional standards without the troublesome task of building a societal consensus, why should we wonder that party leaders on all sides will do absolutely everything in their power to win a fight over the Court? As long as the Court has the power to act as a constitutional revision council, the temptation to tear the country apart over its vacancies will persist.

Is there any hope for reviving in the public mind what Romney referred to as the “immutable fairness of following the law”? Sadly, the prospects look bleak. Even some conservative intellectuals have begun to attack the notion of accepting the clear meaning of the constitution as empty, legalistic proceduralism, opting instead for their own conception of the “common good.” And it takes a hefty dose of naïveté to believe that Trump and the right-wing populists—who earlier this year declared impeachment proceedings to be not simply wrong, but “illegitimate”—have much respect for the constitution when it doesn’t further their goals.

With the Barrett nomination, conservatives may win the Court—a long-sought-after and satisfying victory. But the controversy surrounding it reinforces the reality that, unless something can be done to change the perception of much of the country, we may still lose the Constitution.