Bench Memos

Law & the Courts

Rank Nonsense from the New York Times

Today’s New York Times house editorial, “A Coup Against the Supreme Court,” is as inane as its hysterical title would suggest. The supposed “coup,” it turns out, is Senate Republicans’ exercise of their constitutional power to decline to act on the nomination of Merrick Garland to the Supreme Court—and the prospect that they might block any Supreme Court nomination by a President Hillary Clinton.

Since when it is a “coup” for elected officials to exercise their lawful powers?

A few other observations (among the countless criticisms that could be offered):

1. NYT contends that “the Supreme Court sits crippled, unable to resolve the most pressing legal questions facing the country” and that its “future as a functioning institution” is now in “doubt.” Oh, really? Tellingly, in its otherwise verbose editorial, NYT doesn’t bother to identify a single one of those “pressing legal questions” that somehow requires resolution by the Supreme Court.

There were four cases in total last Term in which the eight-justice Court split four-to-four (and thus affirmed the decision below). Yes, the Supreme Court thus failed to set binding nationwide precedent in those cases. But so what? Set aside that not all of the four cases involved conflicts among the circuits. The larger point is that there is no grave crisis in having the regional courts of appeals apply different readings of the law as they decide the cases before them. If there were such a crisis, why would Congress have left it to the discretion of the Court whether or not to grant review of cases that present legal questions on which the lower courts are in conflict? And why would the Court sometimes happily leave such conflicts to continue?

2. Invoking Hamilton’s Federalist No. 78, NYT asserts that the Court’s “legitimacy and authority depend entirely on the shared public acceptance of its verdicts.” But that assertion badly distorts Hamilton. What Hamilton says, rather, is that the Court’s legitimacy—the very basis of its power of judicial review—inheres in the fact that the Constitution is a “fundamental law” that judges must interpret in order to “ascertain its meaning”:

The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Having long applauded the Court for exercising will instead of judgment to impose liberal results, NYT can hardly position itself as a genuine defender of the Court’s legitimacy.

3. NYT absurdly contends, “Until this year, no one disputed that the president should have wide latitude in picking justices.” But the question whether the Senate should accord deference to a president’s Supreme Court selections is one that has long divided scholars and commentators. And it was NYT itself, as recently as the occasion of the last Republican nomination to the Supreme Court, that insisted that “the Senate has a duty to delve into the many areas in which Judge Alito’s record suggests he is an extremist [sic]” and “should question him closely on all of them.” (“Judging Samuel Alito,” Jan. 8, 2006.) (To be sure, “wide latitude” would still allow scrutiny of an actual “extremist,” but the fact that NYT’s lead complaint against Alito was concern over “where [he] stands on” Roe v. Wade shows that NYT’s label of extremism is entirely malleable.)

The sentences that follow NYT’s absurd contention might suggest that NYT means only that the Senate should give a Supreme Court nominee a floor vote. But here, too, it was NYT that, on the occasion of the last Republican nomination to the Supreme Court, urged Senate Democrats to deploy the “radical tool” of the filibuster to prevent the “far more frightening” prospect of having Samuel Alito become a Supreme Court justice. (“Senators in Need of a Spine,” Jan. 26, 2006.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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