Friday, June 29, 2018

Once Again Imagining A Smaller Supreme Court (not by design)

by Neil H. Buchanan
Note to readers:  Because of travel commitments, I wrote the column below (to be published today, Friday the 29th of June) two days ago, in what turned out to be the few remaining hours before Justice Kennedy announced his retirement.  (I also wrote it pre-Janus, but that predictably terrible decision would not have changed anything here.)

When I wrote the column, therefore, my musings about Supreme Court departures were entirely hypothetical, and I honestly thought that the column was a bit self-indulgent because, as I put it in the second paragraph, I was simply following a stream of consciousness that had been sparked by the Travel Ban decision.

Well, unhappy surprise to all of us!  With Kennedy's announcement, I considered rewriting the column, but I have decided not to do so.  Indeed, the paragraph that I wrote that begins "As an aside" (after the "confirmation equation"), regarding unexpected Supreme Court openings, is already being proved prescient.

Accordingly, although I would surely change some things if I were to allow myself to rewrite this column, I am happy to ask readers to take a look at these thoughts about the future of the Supreme Court that were written in blissful ignorance of Kennedy's plans.  There will be much more to write in the weeks and months to come.

I am hardly the only person who, upon hearing that the Supreme Court's five conservative justices had upheld Donald Trump's Muslim Travel Ban, immediately thought about the stolen Supreme Court seat that Neil Gorsuch currently occupies.  Somewhere, Mitch McConnell and the Koch brothers are drinking a toast to their ability to hijack the U.S. Constitution.

In his latest Verdict column, Professor Dorf has tried to find some silver linings in the conservatives' travel ban decision, and his thoughts do offer some solace.  Here, however, I will follow my stream of consciousness and start to think about how the successful theft of Merrick Garland's seat will play out in the very near future.

[I should also mention that I wrote a Verdict column this week, too, and it discusses what was one of the only good high-profile decisions of the Court's term.  Even so, I have to admit that it was a tax case (or more accurately a Dormant Commerce Clause case that happened to have the word "tax" in it), so I tried to spice it up by contrasting the case with some bad decisions by the Court and an ominous hint that the conservatives are going to ramp up their attack on the neutral expertise of the administrative state.]

Where do we go from here?  More specifically, what happens after the 2018 midterm elections if one or more Supreme Court seats opens up before the 2020 general election?  I have a few thoughts.

The first step is simple.  If the Republicans maintain a majority in the Senate after this November's elections, any subsequent Supreme Court appointment will be a mere formality.  No Republican Senator has shown the slightest hint of a backbone or independent thought in months (if not longer), so any shaved ape that Trump might put forward for the Court would be confirmed immediately.  Heck, at this point, why would Republicans even bother to hold hearings?

It is possible that there will be some navel-gazing about the impact of Trump's Supreme Court choice(s) on his reelection chances, but can anyone honestly imagine that it will be his court picks that determine whether he wins or loses in 2020?  This is, therefore, easy to predict:

Republican Majority after 2018 + Supreme Court Opening(s) = Confirmation of Hard Right Nominee(s)

As an aside, this logic would also clearly apply to any opening that might unexpectedly arise in the next six months.  Notwithstanding McConnell's unctuous claims about "the people" needing to have a say in Supreme Court appointments, that made-up rule obviously only applies when Democrats are in the White House.  If Kennedy or any of the others were suddenly to leave the bench for any reason, a 50-year-old replacement from the Federalists' wish-list would be seated immediately.

The more interesting question, therefore, is what will happen after 2018 if the Democrats take the Senate.  This possibility is very real, notwithstanding the forbidding electoral map faced by the Democrats.  At most three Republicans seats are in play this year, whereas ten Democrats are running for reelection in states that Trump carried in 2016.  Even so, it turns out not to be at all difficult to see a path to a 51-49 or even 52-48 Democratic Senate majority in January 2019.

What if that happens and Trump is subsequently faced with one or more open Supreme Court seats?  Importantly, we would no longer be looking at the difficult Senate races that Democrats face this year.  People like Joe Manchin (W.Va.) and Claire McCaskill (Mo.) will no longer have an immediate political life-or-death decision about whether to seem "obstructionist" to Trump supporters in their red states.  After 2018, which senators' decisions could most quickly become fodder for reelection campaigns?

The answer is that 2020 looks like a great map for Democrats.  That cohort of Senators, after all, is the group that was elected in 2014, when the Republicans finally won their current majority.  Because of special elections in two states, only 31 seats will be contested in 2020, and twenty of those seats are held by Republicans.  Moreover, I cannot find even one of those eleven Democrats who would appear to be in any danger of losing, whereas I count at least five of the Republicans who would be in competitive races without even knowing who their opponents might be.

Add to this the facts that general elections are better for Democratic turnout (which is one reason why this year's midterms involve so many now-vulnerable Democrats, who won their seats on Obama's coattails in 2012) and that 2020 will be people's only opportunity to vote against Trump himself rather than by proxy this year, and the result is a lot of Democratic optimism.

Maybe a better way to put it is this: If 2020 is not a great year for Democrats, we will have much bigger things to worry about than Supreme Court seats.

All of which means that, if any Supreme Court seats do open up after the mid-terms and before November of 2020, it is nearly impossible to imagine Democrats allowing a Trump nominee to be confirmed.  Yes, there are always people in the Democratic Party who will say that it is unbecoming to play tit-for-tat, but outrage about Gorsuch -- which is being reinforced by decisions like the Travel Ban case this week, with surely more outrages yet to come this year and into the future -- should keep weak-kneed senators from collapsing.

Would that cause Trump to offer a less extreme conservative nominee?  Please.  Trump would simply call Chuck Schumer stupid and dishonest and somehow call it all a reason to jail Hillary Clinton.  Insults are all he has.  He will surely use any confrontation over the Court to try to rally his base, but because his base is at all times fully rallied, that is an empty threat.

Given the ages of the Supreme Court justices, therefore, we could soon be back to where we were in 2016 after Justice Scalia died, wondering whether the Court will shrink through attrition without any new justices being confirmed.  Depending upon who departs, partisans on one side or the other will see an immediate advantage.  But now that Senate Republicans have gotten rid of the filibuster, the only question will be when the White House and the Senate will both be in one party's hands.

In short, the Court's current term is an especially bracing reminder to Democrats that their opponents shamelessly play hardball.  Yes, there is an old saying that "Democrats never miss an opportunity to miss an opportunity," but given the realities of the 2020 election cycle, it is extraordinarily difficult to see Democrats failing to respond in kind if they have the chance to do so after this year's elections.


David Ricardo said...

This post, like many other forums, continues to support the myth that the U. S. Senate is in play in 2018. As a quant, the numbers just do not work.

A GOP replacement for Sen. McCain will make the Senate 51-49. There are 8 to 10 vulnerable Democratic seats in play, and only three Republican ones. To control the Senate the Dems must lose only one seat and sweep the table of the three Republican seats in play. The odds ain't good. Dems in Florida, W. Va, Missouri, Montana, Indiana and North Dakota are at best 50-50. The probability of a sweep at this time, .5^6. Do the math.

There are also two events yet to happen. The first is a possible report by Mr. Mueller. The second is the selection and probable vote on a replacement for Judge Kennedy. No one knows how this will effect the election in November. If the Republicans get their Clarence Thomas clone this may satisfy them, with a lower GOP turnout as they celebrate their new ability to end abortion rights, restrict birth control and send the LGBT community to jail.

So yes, a Democratic controlled Senate is possible, but if the Dems win the House and lose only a net of two seats in the Senate, well, declare victory and go home and celebrate. The GOP will likely retain control of the Senate. Cheaters do not 'never win'. Actually most of the time they do win.

David Ricardo said...

A second comment.

What if McConnell has hearings on the new Justice but delays voting until after the mid-term in order to stimulate Republican turnout in the Senate races. In that scenario Dems could suffer major losses.

What about the risk that Dems would take control of the Senate and be able to block the appointment? That risk does not exist. In that situation McConnell would merely have a confirmation vote by a lame duck Senate. Yes he would be widely condemned. No, he doesn't care.

Heads they win, tails they win.

Joe said...

It is a "myth" that the Senate is "in play" but it is "possible," even in the view of someone who has been pessimistic about the status of the Democrats.

Fred Raymond said...

It's pretty much a given that SC decisions will be much easier to predict as there will no longer be a swing vote as such. 5-4, 5-4, 5-4....

Shag from Brookline said...

Recall Duke Ellington's "It don't mean a thing if it ain't got that swing." How might the nation accept decisions of the Trump Court? The political polarization that has resulted in political dysfunction of the elective branches has diminished public confidence in those institutions and has somewhat extended to the Judiciary and with the Trump Court may further worsen. This is a threat to America's national security. If the public is dissatisfied with the direction of the Trump Court, the past suggests changes will occur. But the world and America's enemies make this a more dangerous time.

David Ricardo said...

Per Shag, changes will occur, many and quickly

1. LGBT Rights: SSM will hold, but discrimination against the LGBT community will be unrestrictedly legal.

2. Campaign Finance: No regulation on money in elections; no disclosure requirements.

3. Environmental Regulations: Any challenges to environmental laws will be upheld.

4. Government Sponsored Prayer: Fully Allowed

5. Diversion of Tax Dollars to Religious Orginazations Including Schools: Fully Allowed except for Muslims and Flying Spaghetti.

6. Rights of Business over Labor, Regulations: Every decision for businesses (wait, that's already the case).

7. Gun Control Regulation: You're kidding, right?

Of course the big issue is abortion, but the only question is whether or not there will be a soft repeal of Roe, in which it is not overturned but states will be allowed to regulate it out of existence in those states that choose to do so, or hard or explicit repeal. Roberts may be able to prevent hard repeal, but it won't matter, the result will be the same. Abortion rights in some states, none in others, including almost all types of contraception and 'morning after' therapy. Planned Parenthood, kiss your butt goodbye.

So yeah, changes will occur.

Oh, for those of you who don't do the math, the probability that Dems will win all six races (Fla, WVa, Ind, Missouri, Montana, ND), 1.6% assuming a 50% chance and statistical independence. Five out of six, probability, 9.4%.

The probability they will win two out of the three Republican races (Nv, Arizona, Tenn) assuming 50% and statistical independence, 37.5%, winning all three, 12.5%. So assuming statistical independence and 50-50 races the probability of the Dems taking control of the Senate is about 2%. Of course the races are not completely statistically independent which improves the Dems chances if there is a movement towards them, but this could be offset in that some of the races are less than 50% probable for the Dems.

Pessimism, or reality?

Shag from Brookline said...

As changes come along, the public reactions will be important. See:

"The Supreme Court’s Loss of Prestige For the first time in a long time, more people disapprove than approve of its performance."
By Eric Posner October 7, 2015

A lot has happened since that article appeared, mostly Donald Trump. Post-Justice Kennedy changes may significantly lower the Court's approval in the eyes of the public. Consider Dred Scott. Consider the change in the Court in the course of the New Deal. Much of the public was in support of Brown v. Bd. of Educ. (Unanimous, 1954) as America went through troubling times with the civil rights movement. Eventually that led to Court changes, but things seemed to settle down, until Trump. Public outcry at some of the anticipated changes may be recognized by the Trump Court, especially with changing election results, which will take time. But if the public has little respect for the Court's decisions, some reversals may result. Time wounds all heels, and Trump is no exception. But my nagging fear as I noted earlier is national security.

Elon said...

Seems to me like your analysis, ex ante though it may have been, is pretty spot on. As you point out, events up until the new Senate is seated in 2019 are fairly predictable, and even the scenarios up until January 2021 don't seem particularly unpredictable (with a some intrigue on the side as to whether if the Senate remains Republican and there is vacancy, they would appoint a non-ideologue or moderate of some kind to give cover to their recent skullduggery). The more interesting question is whether a hypothetical Democratic Congress and President will be willing to pack the Court in 2021, and if so how. The "if" it seems to me turns primarily on whether the Roberts Court reverses Roe or reaches a similarly egregious (to liberals) result. The "how" is also interesting--would the Democrats have it in them to pack the Court in a way that pushes the Court away from politicization (and if so, how is this actually accomplished) or do they simply play the Trump/McConnell "too bad for everyone who disagrees with us, we call the shots now" card?

Shag from Brookline said...

The Legal History Blog has an interesting 6/29/18 post on a new book series on "Successful Public Governance" that begins with this quote:

"Societies can only have a serious shot at thriving when they are governed through public institutions that are trustworthy, reliable, impartial, and competent. Yet in the first decades of the 21st century, governments and public institutions worldwide have been challenged by deep and fast changes in their operating environment. There is therefore an urgent need for concepts, designs, and practices for successful public governance, which this groundbreaking new book series will seek to present."

Joe said...

I was not really a big fan of Eric Segall's eight justice approach when he posed it, but then I disagree with him various times. Being a liberal means I don't have to say "sorry." Anyways, I prefer a sort of 3-3-3 Court though guess it might be a 4-3-2 Court soon and a somewhat weak "3" being Roberts will be the conservative "moderate."

I think it would have been ideal if Garland actually was confirmed since it would have been a moderate 5-4 liberal Court with Garland likely joining conservative results on some issues at times going by his record. I won't be coy and deny I prefer a liberal leaning Court (fair is fair -- there never was a truly liberal leaning Court since Warren days though it did on certain issues). But, Garland, Breyer and Kagan are all moderate liberals. RBG is fairly moderate on various issues too. Sotomayor isn't exactly Thurgood Marshall.

I think that would have been a good general result that many conservatives could live with too. But, there want more, like seen in the ridiculous Affordable Care Act case where the law barely survived, the ridiculous idea that it was not allowed under the Commerce Clause seen even by some conservatives at the time.