First Monday in October – Earlier this Week

October 6, 2016

The first Monday in October came and went earlier this week. With it the 2017 Supreme Court term began. I have some thoughts. Read on, s’il vous plait.

The Supreme Court exists as an anti-democratic institution, created by and through an anti-democratic Constitution. The people play no direct role in the selection of Supreme Court justices. Only because of the 17th Amendment to the Constitution—ratified 125+ years after the 13 states ratified the Constitution—do we elected directly United States Senators, who provide advice and consent with respect to individuals nominated to serve on the Court. That’s as close as we get to a direct role, for even in electing the president who nominates justices, votes mean more in one state and another because of the Electoral College.

Presently, and for the past 233 days, the Court has had eight justices. The Republican Senate majority has refused to consider President Barack Obama’s nominee, Judge Merrick Garland. Within hours of the announcement that Justice Antonin Scalia had died Senate Majority Leader Mitch McConnell announced: “This vacancy should not be filled until we have a new President.” Now we have “will,” as Leader McConnell controls the Senate calendar.

The Senate majority’s approach is anti-Constitutional, as it has effectively neutered the Supreme Court. Motives and political positions aside, the failure to fill the seat limits the Court’s ability to weigh in on important issues. Take, for example, voting rights. With five weeks to go before the 2016 election, courts have ruled on Kansas, Ohio, North Carolina, North Dakota, Texas, Virginia, and Wisconsin laws. (A.J. Vicens for Mother Jones has an overview for Mother Jones, in Here’s What’s Happening in the Battle for Voting Rights.) As it happens, the rulings tend to find GOP-supported legislation unconstitutional. So, from my particular perspective the outcomes are satisfactory.

Notwithstanding my political preferences, the Constitution does not contemplate a situation in which one party can prevent one branch from fulfilling its constitutional functions. Alas, the obstructionist party relies on a faulty, pro-democracy claim. It claims the people should have a right to be heard on November 8, before we act on a matter so important. Of course, the majority’s argument ignores completely the fact that when the people voted on November 6, 2012, they elected the electors who voted for Barack Obama, making him President of the United States until January 20, 2017.

We focused greatly on outcomes when we talk about the Supreme Court. Principles get lost, too often. For sure, the Court managed to deal with several important cases at the end of the 2016 Term. And the Court is hearing cases. (Here’s the SCOTUSblog October Term 2016 list of cases.)

That all said, one side has undermined the core Constitutional purpose of the Court: to serve as a check on the more democratic branches of government. But they use “more democracy” as their stated purpose. “Let the voters decide,” they say. First, democracy and the Court are antithetical for a reason. Second, here’s what Republican Senator Jeff Flake (Ariz.) had to say the other day:

Our position shouldn’t be that the next president ought to decide. Nobody really believes that, because if this were the last year of a Republican presidency nobody would say that.

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