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.