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The Supreme Court

Updated on November 15, 2017
RJ Schwartz profile image

I'm on the right side of politics and enjoy a good debate on government, the economy, and the rights of the people.

First occupied on October 7, 1935, the Supreme Court building is a fitting home for the nation's third branch of government
First occupied on October 7, 1935, the Supreme Court building is a fitting home for the nation's third branch of government | Source

The untimely death of Supreme Court Justice Antonin Scalia in February has brought the Supreme Court into the center spotlight of both the nation and the political world. With a November Presidential election looming, there has been a spirited debate from both sides of the political spectrum on what course of action would be best for America. The court prior to Scalia’s death had been balanced from an ideologically perspective. Scalia was almost always on the side of the majority rulings (except in 2014) and had been moving leftward in the last decade. With his death, the court is left without a median justice, or one who tips the balance in closely contested cases. Now it looks like both Stephen Breyer and Anthony Kennedy will both be seen as median Justices, and it’s very likely that many cases during the current term will end in 4-4 ties; when that happens, the decision of the lower court is affirmed without creating a precedent.

Capitol Visitor's Center
Capitol Visitor's Center | Source

Republican Senate

With the Senate being controlled by a Republican majority it looks to be a lengthy period before a new justice is confirmed. In fact Mitch McConnell, the Senate Majority leader has refused to even consider any appointment President Obama might choose to put forth. The concern by Republicans is that any Obama appointment would be the most consequential ideological shift on the court since 1991, creating a liberal majority that would almost certainly reshape American law and American life. Every occupant of the White House, when given the opportunity, tries to shift the balance of the court to their Party’s favor and President Obama has already had the opportunity to add two Justices during his tenure. This juncture is American politics is crucial as both Parties are pushing ideological issues. The last Supreme Court nomination with stakes this high was in 1991, when Justice Thurgood Marshall retired. Justice Marshall was considered by many to be the most liberal justice in modern history. His replacement, Justice Clarence Thomas, is considered the most conservative by those same measures.

President Obama introduces Merrick Garland as his Supreme Court nominee Wednesday at the White House. Garland, 63, is currently chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.
President Obama introduces Merrick Garland as his Supreme Court nominee Wednesday at the White House. Garland, 63, is currently chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. | Source

Judge Merrick Garland

President Obama has already nominated Judge Merrick Garland, currently the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit. He was appointed by former President Bill Clinton, is a graduate of Harvard and Harvard Law School, and as a Justice Department lawyer he supervised the investigations in the Unabomber case as well as the Oklahoma City bombing. He is 63 years old with a solid tenure as a Judge however his personal politics are being hotly debated. His track record of siding with regulatory agencies such as the EPA has many concerned as well as his support for Unions, both Democrat strongholds. President Obama describes him as a moderate but his past history of voting to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation is perceived as a threat to Second Amendment rights by republicans. His entire body of judicial work must certainly be considered by anyone who wishes to thoroughly vet him, but aside from his work, he is a Democrat and as a Democrat will likely follow party doctrine.

Vice President Joseph Biden
Vice President Joseph Biden | Source

The Biden Rule

The Republican Senate has relied heavily on what has been termed as the “Biden Rule” for rationalizing the waiting game strategy. While serving as a Senator, Vice President Joseph Biden argued that then President George Bush should defer filling a Supreme Court vacancy to the next President. Biden also said it was essential that the Senate refuse to confirm anyone Bush appointed. In an infamous speech on the Senate floor in June 1992, Joe Biden stated that there should be a different standard for a Supreme Court vacancy that would occur in the full throes of an election year and that the president should follow the example of a majority of his predecessors and delay naming a replacement. Biden was quoted as saying, “Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention. It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” Vice President Biden has attempted to walk back that speech saying his words are being mischaracterized, yet he’s had little political traction with that approach.

Joe Biden - No Supreme Court Pick Until After Election (1992)

Gouverneur Morris - author of the preamble to the US Constitution
Gouverneur Morris - author of the preamble to the US Constitution | Source

Procedural Rules

The Democrats are voicing a strong opinion alluding to the fact that there is no actual legal precedent to delay a nomination, and they are correct on that point. However the Republican Senate currently holds the high ground for the final decision, or at least it would seem that way. The Constitution requires the President to submit nominations to the Senate for its advice and consent. Yet, arguments are already being debated that an outright refusal to allow a hearing is similar to dereliction of duty. The argument is justified by saying the decision by the Senate to not act is in fact a waiver of its right to provide advice and consent. Republicans argue that this premise is wrong for multiple reasons. Advice and consent is a prerequisite for appointment and not Constitutional duty of the Senate. In fact, there is nothing in the Constitution requiring the Senate to act on nominations in any way. It does seem like an ineffective approach since if push came to shove, the Senate could simply vote Judge Merrick down or filibuster to keep it from ever coming to a vote. Many political scholars can recall when then Senator Barack Obama advocated taking such an action when Samuel Alito was up for confirmation. The Senate has, historically, rejected numerous judicial nominations by simply sitting on them indefinitely.

Nevada Senator Harry Reid
Nevada Senator Harry Reid | Source

Deadlocked

At the moment, things appear to be at a deadlock and despite the fact that President Obama has stated he would not do it, some Democrats are suggesting a recess appointment. The President by law may make a recess appointment of a Senior Federal Official while the Senate is in recess. Since the Constitution requires most senior federal officers to be confirmed by the Senate, any recess appointment must be approved before the next session of Congress. The Senate can certainly block the President from a recess appointment simply by not recessing. If the Senate does not adjourn for a period longer than three days, not recess appointments can be made. Former Senate Majority leader Harry Reid went so far as to keep the Senate from adjourning for two entire years to systematically prevent then President Bush from making any recess appointments at any level. There are many other examples of this happening in American history and the current Senate is simply following established Senate and Constitutional protocols and rules. As it stands, the Senate has no Constitutional duty to follow a timeline on granting a hearing and the President has no power to force their hand or bypass the confirmation process without violating the law.

John Tyler became the tenth President of the United States (1841-1845) when President William Henry Harrison died in April 1841. He was the first Vice President to succeed to the Presidency after the death of his predecessor.
John Tyler became the tenth President of the United States (1841-1845) when President William Henry Harrison died in April 1841. He was the first Vice President to succeed to the Presidency after the death of his predecessor. | Source

Lengthy Vacancies in History

If thing continue, then the vacancy in the court will be lengthy; almost certain to past at least a year. That would be the longest vacancy in fifty years, but by no means even close to the longest in history. Up until the middle of the 20th Century, it was common for the court to have vacant seats. Since the 1970’s the average time to confirm a new Justice was about 55 days. It’s been a common practice for departing justices to work with their respective parties to make their official retirement contingent on the confirmation of a successor, making the confirmation process much shorter. Prior to that, the longest vacancy was in in the mid 1840’s and lasted for 841 days, when the Senate simply declined to act on any of the nominations brought before them by President John Tyler. This lengthy period certainly serves to demonstrate that the Senate is justified in its current course of action. In the 1860’s a seat was open for 781 days. There were three vacancies lasting more than 500 days, two lasting over 400 days, and three to date of over 300 days. Supporting evidence can be found at the Pew Research Center as well as additional details of each vacancy.

A look at the longest Supreme Court vacancies in American History
A look at the longest Supreme Court vacancies in American History | Source
Scalia conducts a naturalization ceremony for 16 new U.S. citizens during the commemoration of the 150th anniversary of President Abraham Lincoln's historic Gettysburg Address on November 19, 2013, at Gettysburg National Military Park in Gettysburg,
Scalia conducts a naturalization ceremony for 16 new U.S. citizens during the commemoration of the 150th anniversary of President Abraham Lincoln's historic Gettysburg Address on November 19, 2013, at Gettysburg National Military Park in Gettysburg, | Source

The Court, One Justice Short

If the two sides decide to stand their ground throughout the remainder of President Obama’s term in office the court will continue with their summer docket with only 8 members. Estimates are that over 80 cases will be reviewed before the court is once again at full staff. One of this term’s biggest cases was argued on March 2, when the justices considered whether Texas’ strict regulation of abortion clinics impinges on a woman’s constitutional right to an abortion. If Judge Scalia was alive he most certainly would have been a sure vote to sustain the regulations. Any split decisions would revert to the decision made at the prior court of appeals. History does show us that when the court was in a period of prolonged vacancy that business went fairly smoothly and there were very few split decisions. Scalia’s death does present an immediate challenge to the court because he had participated in all the cases argued up until his death. The Justices collectively made choices about which issues to hear and which to forgo based on the assumption that Scalia would be sitting with them at the time of decision.

Ruth Bader Ginsburg began her career as a justice where she left off as an advocate, fighting for women’s rights.
Ruth Bader Ginsburg began her career as a justice where she left off as an advocate, fighting for women’s rights. | Source

The Court Is Going To Change

Even if Justice Scalia isn’t replaced during this President’s term, the ramifications for an unbalanced court remain the same. If Bernie Sanders or Hillary Clinton wins the upcoming election then the court will shift left. If a Republican wins, it will shift right. And with several other members of the court aged, the shifts could go very polarized in one direction or the other. Ruth Bader Ginsburg is 83 years old, Anthony Kennedy will be 80 in July, and Stephen Breyer is 77. With two left leaning Justices and one right leaning Justice potentially retiring in the next Presidential term, the makeup of the court could be anchored far right or far left for a decade or more. A far left court could limit second amendment rights; give more authority to the EPA and other agencies who are strong supporters of global warming. The Constitution would be considered a “dead document” and the progressive push on reproductive rights, race relations; organized labor, voting rights, open borders, globalization, and multiple other platforms would be advanced with zeal. The court would become a tool for social change that couldn’t be defeated. A far right court would be expected to apply Constitutional law to the letter, focus on judicial restraint rather than dominance, insure gun rights are protected, reduce government regulation, abolish Obamacare, perhaps enforce traditional marriage and define many of the grey areas that are argued about today. Either outcome will be a dramatic and long-standing change for all of America.

The Supreme Court: The Personalities and Rivalries That Defined America

Empty Courtroom Table
Empty Courtroom Table | Source

What a Stacked Court Could Mean For the Future

A stacked Supreme Court would become more powerful than the office of the President as it could decide on which litigation to preside over and make rulings which could in effect override established law. Since many of the issues we face as a nation are not represented in the Constitution, it’s often up to the court system to decide the final outcome. What constitutes a right? What constitutes a citizen? Who can vote? How much money can the Government print? What trade agreements are legally binding? Can Global Warming “deniers” be prosecuted? Is it legal for the government to take over major parts of the economy such as what happened with Obamacare? These are just some of the “what if” questions and rulings that a future court might see and if it is heavy to one doctrine or the other the results will be lasting and as close to permanent as you can get. So as the primary season battles continue to play out and we eventually get to Election Day, it will be the voters who decide ultimately on how the court will evolve. Yet, once the court has evolved, will anyone be able to control it?

Who was the best Supreme Court Justice in American History?

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Summary

What I've presented is a collection of possible scenario's based on today's facts. What will eventually happen is anyone's guess, but if things play out even close to how I've demonstrated that they could, all of our lives will be impacted to a high degree. Take pause before claiming victory or defeat as the outcome might seem great today but turn into a nightmare tomorrow. I'm interested in hearing your thoughts on the subject.....fight nice as my father used to say.

Comments

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  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    Good for him

  • profile image

    Old Poolman 20 months ago

    Tsad is taking a vacation to visit with his grandson.

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    I guess Tsad has given up on being part of the conversations about politics and such.

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    I guess Tsad has given up on being part of the conversations about politics and such.

  • bradmasterOCcal profile image

    bradmasterOCcal 20 months ago from Orange County California

    Ralph

    I mentioned it as the failure of the SC to make decisions that resolve the issues from the lower courts. IMHO, it doesn't matter who they get for the replacement as the SC has a design problem. If you look back at their record, and then look at the state of the country today, you can derive how they contributed to its decline. What the congress didn't mess up, the SC did.

    Both the left and the right over the years since the 70s didn't move the country forward. The litmus test of the worth of both congress and the SC is where we are today, and it doesn't look like the decline is going to stop.

    Anyway, as always feel free to delete any off the road comments of mine.

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    As a good Liberal, Leslie is expected to state that a fetus doesn't exist or face the wrath of her Democrat friends. This particular hub doesn't cover abortion, conception, god, or any of the other topics that get rehashed over and over on HP. Its about the Supreme Court.

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    Brad - A Supreme Court Recess Appointment must be confirmed before the next session of Congress - only one time in history has this happened and it was during the George Washington presidency.

  • lovemychris profile image

    Yes Dear 20 months ago from Cape Cod, USA

    That is your wish.

  • bradmasterOCcal profile image

    bradmasterOCcal 20 months ago from Orange County California

    That is not an argument to my comment, it is your wish, and only your wish. And God doesn't exist.

  • lovemychris profile image

    Yes Dear 20 months ago from Cape Cod, USA

    No, the fetus has no rights. Sorry, God made it that way. Moms life, moms choice. Dont like it?

    Curse the Creator.

  • bradmasterOCcal profile image

    bradmasterOCcal 20 months ago from Orange County California

    Ralph

    A great compendium on the SC.

    As far as the recess appointment, the thing that makes this inapplicable to the Supreme Court is that a recess is good until the position duration ends, but for the SC that is a lifetime. I don't think that was the goal of having the president make a judiciary appt.

    One of the fundamental problems with the SC is that the founders left the details to congress, not a great mind trust today.

    The SC no matter its composition has favored the expansion of the federal gov't. The mechanism they used was the two sentences comprising the Interstate Commerce Clause. Like the 14th Amendment this has been stretched way out of reason.

    The ICC was to regulate commerce between the states, and apportionment was the fair way to do that. Yet, the SC allowed the 16th amendment which did away with apportionment to pass Federal Income Tax. The power to tax was already in the constitution, but so was apportionment. That amendment enabled the federal government to effectively discount the existence of state rights.

    IMHO, the allowed the subsequent and continuing use of the ICC to enlarge the scope and size of the government. This is a zero sum power between the state and federal government. Now even if the amendment can't be technically considered unconstitutional, the implementation of it, can and should be reviewed by the SC. There are several constitutional protections that have been removed in the federal income tax. The right of privacy, right of self incrimination, and the forcing of filing under penalty of perjury. All of these have been thrown out by the SC over the years. The fed income tax is to get revenue, not to invade your privacy, of force you to incriminate yourself among others.

    The Supremacy Clause allows the federal govt to take what they want. The states have what is left over by virtue of the 10th amendment. So since the early 1900s the federal government has diluted the powers of the states. The Federal Income Tax has funded the federal government to take over those state rights. Today, the federal gov't has all the money and they can force the states to comply with whatever they want.

    In looking over most of the high profile SC cases, I don't really see many, or any that really resolved the issues brought before the court.

    Take Roe v Wade 1974. The constitutional right of women to have an abortion??? That case was three parts based on the duration and phases of pregnancy. Each trimester would involve the state more into the decision. Not a bad compromise on the surface, but the application of this case, missed a very crucial factor. The SC didn't determine the beginning of life. That is what has been causing the unsettled nature of abortion over the years.

    When does abortion take a life? It should be judicial notice, and that would make it clear on any constitutional rights. The mother and the baby both have rights, shouldn't they? Many of the low income democrat coddled use abortion as the day after drug. Multiple abortions should have to be evaluated as a medical condition or just negligence.

    I would rewrite the SC decision to add the beginning of life criteria, or will this become a child without the abortion. You can then qualify the quality of life for that child if it is endangered or some other condition that may make it more merciful to abort. Most abortions should be done early in the first trimester, or when the other conditions have been determined.

    At some point any constitutional right of the mother, and notice no one cares about the father, has to be factored against the implicit constitutional rights of the new life.

    As for simple majority decisions.

    This is only constitutional because congress has the power to make that the rule. But, the decisions should be made closer to the percentage required by the amendment process. So, at a minimum, it should be a 6-3, or even 7-2. Otherwise we will keep getting the bad, and political decisions of the SC. These decisions are the law of the land, but they don't resolved the issues of the lower courts.

    The more judges that agree with the decision, the better the decision. So, as I said, the 8 jurist SC court today, can make better decisions than the 9 member court.

    As far as the ideology of the justices, it shouldn't be based on liberal or conservative, but on resolving the issue.

    The SC decisions of Obamacare, and Gay Marriages didn't resolve the underlying issues, they just decided them. There is a big difference between the two.

    As I said, the SC decisions over the last one hundred years to favor growing the federal gov't was not consistent with the founders of the constitution. The purpose of the federal government was to decide the conflicts of laws between the states. The ICC was created for that sole purpose, or at least it should have been, but the SC used it to enlarge the powers of the federal govt, which results in the diminution of state powers.

    Now, thanks to these politically, and federally swayed justices of both ideologies, we have a federal govt that is obese, covering all the squares on the board, continuing a decline of the US that started rolling down in the 70s.

    The SC shouldn't be pitted internally as if they were two teams trying to win a volley ball match. The stakes of their games are very high, and we can't afford to lose any more because of their decisions.

    We already have this faux team concept in congress, and look how that is working out.

    The end result is when one of these faux teams fails, we lose the game. The search for the guilty doesn't reverse the score.

    Once again, I ran off the road, one that you have paved well.

  • lovemychris profile image

    Yes Dear 20 months ago from Cape Cod, USA

    He hung out w dickles cheney, went to Tea party meetings, and belonged to some weird Cultish men's group. Freak may be a better term. Oh, but that's " Hate speech" for the politically offended.

    "How dare you!" "He's a right wing icon"

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    I find it funny that you refer to Scalia as an ideologue - if defending the constitution is ideological, then I guess he's guilty. All Supreme court justices get more liberal over time - its a researched fact. Why is it that if you disagree with him, he is branded? Are you still feeling sour grapes over the Bush-Gore election ruling? Maybe his position on gay marriage? Obamacare?

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    Poolman, it almost seems like the court as a body is trying to elevate their status instead of just doing their job. President Obama has used the court system extensively during his tenure so I suppose they feel empowered.

  • lovemychris profile image

    Yes Dear 20 months ago from Cape Cod, USA

    But isn't it good, then, that Obama nominated a centrist, someone liked by Repubs and Dems alike? A good guy, not an ideologue like Scalia? Someone who can be fair?

    What is wrong with Garland?

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    Leslie, I almost fainted in line at wal mart when I started reading your post, but was quickly revived upon completing it. Thanks for reading and sharing an opinion. The bigger picture isn't the Presidency but as I laid out, the possible long term impact of a single party controlling the court for a long time. It's unproductive

  • profile image

    Old Poolman 20 months ago

    Ralph, another informative and necessary hub.

    I do wonder how much those who can't even name the Vice President really know about the Supreme Court. Based on Justice Roberts decision on Obamacare I also wonder if perhaps this court has not lost sight of their real mission. They were never intended to make laws, but to make sure laws fit within the boundaries of our Constitution. At least that is the way I understand it.

    It will be interesting to see how this plays out.

  • lovemychris profile image

    Yes Dear 20 months ago from Cape Cod, USA

    You did beautifully until the end....listing all bad things if court goes left, all good things if it goes right.

    We've seen this movie before. It was called The Lost Years. Not looking for a repeat.

    And it won't matter anyway. We see now that nothing will get done with Republican Senate and House if there is a Democrat president.

    And if it's a Republican president, say goodbye to women's rights, voting rights, union rights, livable wage, healthcare, we'll have war with Iran, China, all BRICS nations.

    Really, what's the use?

  • RJ Schwartz profile image
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    Ralph Schwartz 20 months ago from Idaho Falls, Idaho

    Thanks CJ - I hope this sparks a real discussion about the court. As much as I would like to see it swing to the right, I'm not entirely sure that would be the best thing for America. One of the things this nation really could use right now is some cohesion on many levels. I'm always reminded of that old Charlie Daniels song "In America" - we'll all stick together, you can take that to the bank, that's the cowboys and the hippies and the rebels and the yanks......you just go and lay your hand on a Pittsburgh Steelers fan and I think you're gonna finally understand.

  • lions44 profile image

    CJ Kelly 20 months ago from Auburn, WA

    A topic not discussed enough by voters or the media. The SC affects all aspects of our daily lives and many are unaware. We had to discuss a recent Supreme Court decision at a business meeting yesterday. We need to start educating citizens on the role of the Courts. Great hub, Ralph.

    This is why you nominate the guy who can win in the general election. Kasich's selections would have been better than HRC's.

    I went w/John Marshall as the best because he defined the Court (i.e. expanded the power). So by "best" I mean had the most effect on its future.

    Shared.