The Supreme Court of the United States started its new term without a ninth justice. For more than 200 days, the Senate has refused to consider President Obama’s nominee Merrick Garland.
In this post, Clair Burrill, an established attorney and long-time professor of Constitutional Law at The Santa Barbara & Ventura Colleges of Law, considers what this election means to the future of the Supreme Court.
Are you going to vote for President of the United States on November 8? Or are you going to be one of those who says: “I can’t stand either one of these candidates.” Or, “My vote won’t count anyway?”
Here is the number one reason you must vote: we have a crippled Supreme Court as the result of two unfortunate events. First, the untimely death of Justice Antonin Scalia, and second, the refusal of the U.S. Senate to act on President Obama’s nomination of Merrick Garland to fill the vacancy. I didn’t say refusal to approve the nomination. I said refusal to act on it. This refusal is unprecedented. Although, technically, there is nothing in the Constitution requiring the Senate to act, the Senate has never before refused to even consider a presidential nomination to fill a vacancy on the Supreme Court. Even Robert Bork, the American legal scholar who advocated the judicial philosophy of originalism, was considered.
Gridlock in Congress, Deadlock on the Court
It is, in my opinion, absolutely atrocious that the U.S. Supreme Court cannot do its job properly because of the “I’ll show you” grade-school mentality that rocks our government and national politics. The framers of our Constitution, and even James Madison, who advocated negative government, did not have in mind the sophomoric rancor that plagues our representative democracy today.
As a result of this rancor, significant national issues have not been—and cannot be—resolved. Since February, the Court has evenly split on several major cases that affect millions of Americans. The Court failed to resolve the right of public-sector unions to charge collective bargaining fees to non-members; it failed to decide whether employers can use religious exemptions to avoid the birth-control mandate in the Affordable Care Act; and it failed to determine the legality of President Obama’s executive actions on immigration.
When the Court issues a one-sentence decision that reads, “The judgment is affirmed by an equally divided Court,” the judgment of the lower court that was under review is affirmed. But, and this is a significant but, the Supreme Court’s decision in that case has no precedential effect. Hence, there is no national resolution of the issues presented, and there will be no national resolution until the vacancy is filled.
The Future of the Supreme Court Is at Stake
I do not care what your political persuasion might be, but here is why I say you must vote. If you think that it is imperative, as I do, that the vacancy on the Supreme Court be filled so that pressing national issues can be brought to final resolution, then you must vote regardless of any other feelings or leanings you might have about the two presidential candidates.
I suggest that, if you were to vote for Hillary Clinton and she were to win the election, there is a very strong chance that hearings will be set by the U.S. Senate to consider President Obama’s nomination of Merrick Garland and a very strong chance that he will be approved and appointed. This would result in the Court having four basically conservative leaning justices, namely, Roberts, Thomas, Alito, and Kennedy; and four basically liberal leaning justices, namely, Breyer, Ginsburg, Sotomayor, and Kagan; and one moderate, Garland. It would also open the door for Hillary Clinton to nominate replacements for departing justices in her four- or eight-year term as President. And you must also keep in mind, if the U.S. Senate remains dominated by the Republican Party, her nominations would, of necessity, have to be of moderate persuasion.
On the other hand, if you were to vote for Donald Trump, and he were to win the election, the U.S. Senate will take no further action on the Garland nomination but rather will wait until Donald Trump is sworn in as President. Further, there is no doubt that Donald Trump would nominate conservatives and, with a Republican dominated U.S. Senate, the make-up of the Court would definitely shift in a conservative direction, which could lead to reconsideration of the Supreme Court’s decisions on abortion, same sex marriage, immigration, voting rights, and discrimination on the basis of sexual orientation to name a few.
In my view, a vote for President is a vote for the future of the U.S. Supreme Court. If you prefer one type of Supreme Court over the other, vote accordingly, but, by all means, vote.