By Daniel Epps
Just like everyone else interested in constitutional law (and just like many other people in America, too) I've been thinking a lot about the Supreme Court in the wake of Justice Ginsburg's death. In particular, I've been continuing to reflect on what's wrong with our current system that has led us to this crisis. I discuss some of the system's defects in this Politico interview last week.
In the interview, I talk about two failings with our system that should be pretty well understood by readers of this blog. First, there's the democracy deficit with our electoral system, in which the Senate and the Electoral College mean that the key decisionmakers may not represent the will of the majority of American citizens. Second, life tenure means that vacancies occur at unpredictable times, meaning that some Presidents get more opportunities to appoint Justices than others. These two problems interact with each other, making the problems worse. President Trump, who lost the popular vote and (so far) has only been elected President for one term, will get to appoint three Justices; Barack Obama, who won the popular vote twice only got to appoint two Justices.
On reflection, though, I think there's another problematic feature of our structure that makes these first two problems much more salient: that's the winner-take-all nature of (1) our political process and (2) our judicial processes.
Take the political aspect first. Senate elections are first-past-the-post systems. If you get the most votes, you win; it doesn't matter whether you win 51%-49% or 99%-1%. That can mean that small differences in elections can lead to huge differences in policy. In theory, we should see more moderate senators in states that are more closely split between liberals and conservatives. But that doesn't always happen. Ted Cruz won his 2018 Senate election by less than 3% over Beto O'Rourke; Cruz is one of the Senate's most conservative members. The fact that nearly half of the Texas electorate would have preferred the quite liberal O'Rourke isn't baked into Texas's representation in the Senate at all. So too with Presidential elections. Most states allocate their electoral votes on a winner-take-all basis. And then the winner becomes President no matter whether she wins by one electoral vote or gets nearly all of them. And again, even very close elections can lead to wildly divergent ideologies between the wining and losing candidates.
And then consider the nomination and cconfirmation process. The President gets to pick whoever she wants; the fact that the prior election was close doesn't matter, except insofar as the Supreme Court choice might influence the President's reelection prospects. And then in the Senate, all that matters is whether the nominee can get the support of 51 Senators (or perhaps even 50 plus the Vice President, if, like Michael Ramsey, you disagree with Larry Tribe about whether the Vice President has the power to break a tie in votes on judicial appointments).
Now take judicial procedure. What matters in a Supreme Court case is what five Justices think. The fact that there are four dissenters, or three, or zero, really doesn't matter. Sure, in some cases, those Justices might be able to persuade the majority to decide a case on a narrower ground. But there's nothing requiring a 5- or 6-justice majority bloc to do that. In practice, this means that some Supreme Court nominations are not that important, and others—such as the last two vacancies, which both shifted or will shift the Court's median Justice—are massively consequential.
Combine all this with a legal and political system that are each becoming increasingly more polarized, and you have a system that allocates Supreme Court vacancies semi-randomly, in ways that are hard to justify democratically, and in a system that makes it possible for one side to capture the Supreme Court by installing a majority of committed partisans to the Court. As I keep saying, this system just doesn't make any sense, at least for the world we live in today.
But I think if our system wasn't so winner-take-all, the other flaws with the system might be less troubling. Imagine if (1) Senatorial ideology more closely reflected the entire vote in their states; (2) presidential ideology reflected the entire vote of the electorate; and then (3) the confirmation process meaningfully incorporated the views of Senators outside the majority in some way. We'd probably end up with nominees that look pretty moderate, with smaller swings between the Justices appointed during Democratic versus Republican control.
And then imagine that the Supreme Court itself made decisions that somehow better incorporated the views of Justices who aren't in the majority. Replacing or changing the median Justice on the Court wouldn't be quite such a big deal; it would still matter, but it wouldn't necessarily be such an earth-shattering shift. And while the democracy deficit and randomness problems would still persist, they wouldn't introduce such massive swings between possible outcomes that our current system does.
Of course, seeing the problem is easier than fixing it. There are certainly models for moving away from first-past-the-post in the election context. We could have a system of proportional representation for electing legislators and then a coalition process for choosing the head of government, as many other countries do. I don't see an obvious way to make the views of the entire Senate relevant to the confirmation process. It's hard to imagine a system of unanimous consent working. But requiring 60 votes for confirmation, as we did before the filibuster for Supreme Court nominations was abolished, certainly made the system a bit less winner-take-all. And then when it comes to judicial procedure, I again don't have an easy solution. You could move to a system requiring unanimity for a judgment. In practice, that might lead to extreme minimalism, or it would lead to horse--trading between cases according to some informal norms within the Court. (Or it would just lead to utter deadlock).
In any event, even if I'm not clear on the solution, I think recognizing this aspect of the problem with the Supreme Court nomination process helps us explain the magnitude of the crisis. Until we fix at least one of the problems—the democracy deficit, the random distribution of appointments, and the winner-take-all nature of the system that enables each side to try to capture the Court with partisans—things aren't going to get much better.