High Stakes Poker at the Supreme Court

By Eric Segall

Dahlia Lithwick is one of our best Supreme Court reporters who blends accuracy and creativity like no other (disclaimer, she generously provided a blurb for the back of my book). I try and usually succeed at reading everything she writes. Over the last few weeks, Dahlia has been lamenting the current eight person Supreme Court calling it “A Bird with a Broken Wing,” and arguing that the Justices are not able to do their jobs given the four-to-four stalemate. She has also observed with great regret that covering the Court has become “boring” and that covering the Garland nomination is difficult because “no news is no news.” Dahlia’s politics are unabashedly liberal or progressive, and like most Court watchers on the left she wants a nine person Court, and she wants it soon.

I don’t think Dahlia is going to get her wish anytime in the near future. The GOP Senate is most likely going to keep its promise not to hold any hearings until after the election and, if Hillary wins and the Senate remains Republican-controlled, my guess is the Senate still will not fill Justice Scalia’s seat with a Democrat for an extended time. If Trump wins, my guess is Dahlia and others on the left will long for the boring days of the eight-person, equally-divided Supreme Court.

          The question I want to raise here is what should a Democratic-controlled Senate do if Trump wins the Presidency and nominates someone from the list he released last week? Everyone on that list is qualified to serve on the Court by traditional standards. Would Dahlia still argue that the country needs nine Justices even though such a Court would be awful for most minorities, unions, and criminal defendants (among others)? The liberal American Constitution Society (I am on the Board of the Georgia Chapter and occasionally blog for them) has adopted the motto “We Need Nine.” Will that still be its slogan if Trump prevails in the fall?

One response liberals may make to a Trump victory coupled with Democratic control of the Senate is that Garland should have been approved and thus Senate payback in the form of refusing to confirm a conservative for that seat is warranted. Of course, the GOP will likely respond that waiting four years is different than waiting one, and in any event two wrongs do not make a right (yes they will say that). Moreover, would Democrats really stonewall for four years? And, what happens if another vacancy (or three) occurs during that time period?

Mike Dorf suggested to me that it is extremely unlikely that, if Trump should prevail, the Democrats will take back the Senate and thus folks on the left are not worried about the possible hypocrisy of wanting nine Justices now but only eight later. Even if Mike is correct, and I'm not sure he is, there may well be times when it will be in the best interests of Democrats to argue that a full nine member Court is not necessary. After all, as I have argued here and elsewhere, over the course of American history, the Court has rarely been progressive but it has often often conservative, even at times reactionary (1900-1936).

This entire Garland affair is extremely high-stakes poker. Democrats are betting Hillary will win or that they can put enough pressure on the GOP that they will confirm Garland before the election. But for now, my question remains: Would Democrats prefer a boring, evenly divided Supreme Court or a Court where Justice Kennedy is again the most liberal member of a five person conservative majority? Not having a good answer to that question is not good poker, and right now the odds of needing that answer are sadly, maybe tragically, pretty good.