Brace yourself. When Justice Ruth Bader Ginsburg retires from the Supreme Court this summer, it will set off a frenzy of Supreme contention: Who will President Obama nominate to replace Ginsburg? Will conservatives, reeling from the Court’s narrow 5-4 decision in the Obergefell case, creating a national constitutional right to same-sex marriage, see the timing as a last-chance-before-the-election attempt by the Democratic left to substitute an equally extreme liberal appointee for the 82-year-old Ginsburg – an effort to entrench Obergefell before Republicans can get their hands on the presidency? How will conservatives react? What should they do?
This is a scenario, not a prediction. I must emphasize that I have absolutely no inside knowledge of any plan by Justice Ginsburg to retire after this Supreme Court Term, so as to enable President Obama to name her successor.
Still, it makes a certain amount of sense. One can certainly see the political logic to it. It is time for old Radical Ruth to go: she’s nodding off at the State of the Union (though one can hardly blame her for that); she’s making ill-considered and arguably improper comments signaling her preferred outcome on pending cases (that probably ought to have led her to recuse herself, as Ed Whelan has argued); and she clearly has been relying on her law clerks for some time now. One can readily imagine Ginsburg deciding that the time is right to leave, that her triumphant majority opinion in Obergefell (or concurrence to Anthony Kennedy’s) is a fitting swan song, and that she should exit on her own terms, now, and try to entrench her opinion as part of her judicial legacy by enabling President Obama to appoint her successor.
At the same time, one can readily imagine friendly nudgings in this direction from the White House. Think of it: a chance to make same-sex marriage and the Supreme Court (rather than Obama’s major foreign policy and national security failings) the political issue of the summer, run up the score on conservatives overwhelmed by a social tidal wave, capitalize on liberal momentum, and entrench Obergefell with the appointment of a hard-not-to-confirm Senator Amy Klobuchar – a mere kid at 55.
Political and legal conservatives need to start planning for this scenario. (It’s not just Ginsburg that could produce it, though hers seems the most likely case. A vacancy could occur from the unexpected retirement of any of several justices.) If and when it happens, Democrats will make the case that we cannot let the Supreme Court “limp along” with “just” eight justices. We certainly cannot wait a full year and a half – until after the next presidential election – to fill the seat (the argument will go). We can’t “play politics with the Supreme Court” in such manner. This presidential administration is not over; eighteen months is a long time; and – what, are we going to allow a situation where the Court might sometimes have four-four tie votes? A deadlocked Court, unable to decide anything – that would be unthinkable.
No, it wouldn’t. Just think about it for a moment. For openers, in such a situation the strategic timing of the resignation is itself obviously political – a calculated power-move to achieve or lock-in a preferred result. There’s nothing too terribly surprising with that, of course. It’s not even clear there is anything wrong with it. Justices have timed their retirements for political as well as personal reasons in the past. They can quit when they want to.
But by the same token there is nothing wrong with the equal and opposite reaction: A politically timed retirement likewise permits – invites – a political response to such an obvious attempt to manipulate timing. Nothing requires a Republican Senate to hurry up and acquiesce to a modern day “Midnight Judges” maneuver by a lame-duck administration with one lame foot halfway out the door. Politics is politics, and both sides play it. The process of naming and confirming Supreme Court justices is – by the framers’ explicit constitutional design – a public, political process. And what’s sauce for the goose is sauce for the gander. A politically motivated resignation and appointment can rightly be parried with a politically motivated refusal to go along with the game.
But can the Supreme Court really get along, for a period of more than a year and a half, with “only” eight justices? Of course it can. There is no prohibition on the Court’s deciding a case when it has been heard and decided by less than the full complement of nine statutorily allotted justices. And there is nothing in the Constitution that requires the now-familiar number of nine justices in the first place. The Court started with six, went up to seven, at one point reached ten, but has settled on nine for many years. The number is entirely a function of Congress’s statutes structuring the judicial branch of government, not anything in the Constitution. Constitutionally, eight is enough.
But wait a minute – isn’t eight an even number? On many issues, the Court would prove equally divided between original-meaning judicial conservatives and evolving-meaning judicial activists. Without Ruth Ginsburg, for example, the same-sex marriage case would have been a four-four tie, preserving the lower court’s ruling upholding states’ laws defining marriage as between one man and one woman!There would have been no Obergefell landmark! The lower courts, and the nation, would have remained divided over same-sex marriage! The issue would have remained in play! What on earth would we do without new Supreme Court decisions to tell us how to govern ourselves?
The answer is simple: We would govern ourselves. Unresolved, difficult, divisive, controversial constitutional questions would remain . . . well, unresolved and divisive.
That is as it should be. Again, think about it: If an issue is so divisive – and the Court itself so closely divided, with nothing near a consensus as to its correct resolution as a matter of constitutional law – and if no urgent national necessity requires immediate resolution, the presumption should be that the Court not reach out to make a dramatic new, unprecedented national resolution of the question. That’s a reasonable general principle any time the Court confronts an invitation to activism. Where such a decision turns on the vote of an about-to-retire justice, the presumption against activist innovation ought to be especially strong.
This is not quite to say that the Court lacks legitimate power to decide such a case. There is no requirement that the Court abstain from deciding a case within its jurisdiction, simply because a retirement may be imminent. Ruth Ginsburg is a Justice until the day she retires and her vote counts.
But there is a strong case to be made, on practical grounds, that the Court should not render a “landmark” 5-4 ruling under such circumstances. If, but for the vote of one justice on her way out, the Court would have been deadlocked, there is a strong argument for not resolving a major national legal controversy. The Court should not make a major decision on a 5-4 vote unless the imminent retirement would have made it a 5-3 vote. In short, if a retiring vote would have left the Court evenly divided, 4-4, the Court should think twice – nine times, really – about creating some dramatic new ruling that would instantly become vulnerable to reversal.
And if it’s true that the Court should refrain from 5-4 activism under such circumstances, there’s an even stronger case that the Senate should not acquiesce to political efforts to entrench a dubious and vulnerable 5-4 activist decision by means of a retire-and-switch substitution of a Young Ginsburg Clone for the 82-year-old retiree. If the decision in Obergefell is a hotly contested one – as it doubtless will be – it should remain hotly contested, not instantly set in stone. It is the Senate’s constitutional right and prerogative, recognized in the Constitution and championed by James Madison and Alexander Hamilton in The Federalist, to act as a check on presidential appointments to the courts. The Senate should resist manipulation designed to produce, or to shore up, questionable and divisive decisions. If senators believe an administration political game is afoot, they should simply refuse to play along, and put the issue over until after the next presidential election.
What do you do with ties, in the meantime? Again, there’s an easy answer. The Court has a standard practice about what to do in such situations, and it is a sound one: it leaves the judgment of the lower court alone. Ties go to the winner in the “court below,” but without setting a national precedent. This has happened many, many times in our nation’s history, and the republic still stands.
Eight is enough, at least for the time being. In general, it would be good for the nation for the Supreme Court not to propound major constitutional innovations by razor-thin margins. And in general it is good for potentially improvident innovations not immediately to be set in stone, especially when reached by a narrow majority comprised of a retiring justice. Rather, such decisions should be subjected to public debate and the checks-and-balances political and electoral process explicitly contemplated by the framers of the Constitution.