In a flurry of parliamentary votes over a span of two hours on Thursday, the U.S. Senate completed its transformation into a markedly different body – at least in the way it exercises its constitutional role to provide “advice and consent” to Supreme Court nominations. It is far from clear, however, whether or how the end of filibusters over judicial nominees might change the Supreme Court itself.
If a historic shift in the nature of the Supreme Court is coming, it could do so from two very obvious causes: how presidents choose future nominees to be Justices, and how those who make it to the bench act once they are there. And each of those is most likely to be influenced by the continuation, or the relaxation, of America’s current – and embittered –partisan polarization.
The nature and tenor of American politics has always influenced who gets chosen for a seat on the court — from the time in 1795 when President Washington’s choice for a chief justice failed in the Senate, to the time this week when President Trump had almost no cushion of votes in the Senate for his choice to occupy a seat that had been kept open for a year to make sure a Democratic president did not get to fill it.
But the Supreme Court itself has not always mirrored the politics of the day and, at times, has been in open resistance. It is easy for modern historians to recall the early 20th Century court that refused to go along with the social and political demands arising from industrialization, or the 1930s court that set itself firmly against the economic and political demands of the Great Depression.
In short, the political culture is not always imitated in the judicial culture of the court, although that sometimes does happen. Presidents may pick nominees with the specific political aim of “stacking” the court, but their choices don’t always turn out to be what they expected. There are few better examples of this phenomenon than President Dwight Eisenhower’s deep disappointment at how William J. Brennan, Jr., turned into one of history’s most committed liberals, or President George H.W. Bush’s utter surprise at how David H. Souter so easily lined up with liberal colleagues.
The judicial process has its own ways of operating, and the modes of judging are starkly different from political maneuvering, especially on a multi-member tribunal like the Supreme Court. Judges influence each other differently. They work within the demanding disciplines of staying within the limits of precedent and of reaching decisions that can stand the tests of reason so that other judges follow and apply the law.
And, as the commonplace perception of justice indicates, it moves more like a turtle than a hare. It took decades to go from racially segregated public schools to modern integration, to go from separate legal spheres for women to near-equality, to go from isolation of homosexuality to same-sex marriage. Politics may help move such trends along, but also can seek to hinder them.
In the wake of what happened in the judicial confirmation process this week in the Senate, observers are now suggesting that President Trump and his successors in the future will be freer to choose more controversial or more ideologically extreme nominees, at least as long as a president is of the same political party as the one that controls the Senate.
It is true that the partisan base of each national political party of today has become more insistent that nominees to the Supreme Court be chosen from among lower-court judges who are believed to have proven philosophies on the bench, in hopes that they won’t change once on the Supreme Court. With an opposing filibuster no longer a threat, that approach surely could continue.
It is not entirely clear, however, that this can be guaranteed. For example, the hardest-core conservatives in the Republican Party remain deeply aroused that Chief Justice John G. Roberts, Jr., would turn out to be the one who found a way judicially to salvage the Affordable Care Act.
Legal and constitutional questions are not necessarily answered in the same way as political controversies, and part of the reason for a difference is the unusual dynamic of the Supreme Court’s process of forming alliances among eight colleagues on the bench. Alliances formed along philosophical lines among the Justices are not like those shaped by partisan influences.
In recent weeks, Democrats opposed to the nomination of Judge Neil M. Gorsuch often spoke as if they knew just what kind of Justice he would become, and how he would help move the current court more to the Right. They could not be sure of either, and neither could the judge’s supporters.
When he starts in the job (as he is expected to do next week), he will find quite soon how he fits into the existing patterns of the court, what chances he has of changing those patterns (if he is so inclined), and just how difficult it is – at least on the great issues that reach the court – to put together five votes to make a majority and then to write opinions to keep a majority from splintering.
The new Justice will also come to appreciate, before very long, that neither the political battle he has just been through, nor his years as a lower appeals court judge, had prepared him for the awesome challenge of having a vote, and a potentially decisive vote, on the court that gets to be the final arbiter of what American law is.