The One-Weird-Magic-Trick Progressives Are at It Again

It is standard practice these days for progressives to argue that any institution, law, or rule that gets in the way of their preferred outcomes is illegitimate, should be destroyed, or at least should be obstructed from doing its job. Thus we have New York representative Mondaire Jones, just today, promising Court-packing and destruction of the Senate filibuster to get gun control:

The other thing that happens every few months, when it appears that progressives aren’t going to win a fight they believe themselves entitled to win, is that one of them writes an op-ed proposing some hare-brained magic trick — some theoretical Rube Goldberg gimmick in the rules — that will supposedly allow them to evade the consequences of losing elections, losing legal arguments, or failing to persuade people on policy. Faithless electors can give us Hillary! We can mint a trillion-dollar coin to fund the government without having to negotiate with Republicans! We can sneak Merrick Garland onto the Supreme Court through a loophole in the lame-duck Senate before Trump’s inauguration! We can have Breyer un-retire after Ketanji Brown Jackson is confirmed, so she gets added to expand the Court! Build Back Better could be substituted for some other bill after a cloture vote! Donald Trump can’t appoint judges while he’s under investigation! Etc., etc., etc. One of the wildest was when Slate’s Dahlia Lithwick argued with an apparently straight face that Garland should just pretend he was confirmed by the Senate:

Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in the manner of George Costanza.

Really, what could the other justices do? They aren’t going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And in the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there. . . .

Do I believe that this would be the single most fantastic thing that could ever happen to resolve the blockade of hysteria that now threatens both the court and the country? Yes I do.

Here is the Slate legal-activist team’s latest scheme, from Ryan Nelson, a civil-procedure and employment-law professor who has taught at South Texas College of Law Houston since 2021:

Federal law and the Supreme Court’s own rules establish the quorum of justices necessary to do business at six. Put another way, unless at least six justices agree to hear a case, the Supreme Court cannot act. Thus, a denial of quorum would deprive the presumptive five-justice majority in Dobbs from adopting Justice Samuel Alito’s leaked draft majority opinion, leaving Roe intact for now.

Deprivations of quorum are not novel. For instance, in 2008, the Supreme Court agreed to hear American Isuzu Motors Inc. v. Ntsebeza, a case concerning a group of businesses accused of maintaining apartheid in South Africa. Because so many large corporations were named defendants, four justices recused themselves due to conflicts of interest. As a result, the Supreme Court lacked a quorum and the five remaining justices were unable to rule on the case.

In such situations, federal law states that a majority of the remaining justices can either affirm the judgment of the lower court or, if they believe the lack of quorum is temporary, hold the case until the next term and decide it then. . . .

Four justices could deny the Supreme Court a quorum to hear abortion cases permanently.

Nelson’s suggested mechanism would be for four justices who already sat through briefing and argument and have seen a draft majority opinion to suddenly recuse themselves from the case: “Justices can recuse themselves from any case for any reason.” He compares this with the actions of legislative minorities to obstruct business, a telling admission of failing to grasp the difference between elected politicians and judges. There is an even more damning implicit admission when he says that “a court whose legitimacy is on life support is better than a court whose legitimacy has been aborted.” So, abortion is like removing a person from life support, you say?

Recusing without the vaguest reason of conflict would be wildly unethical. Nelson’s effort to analogize to Justice Robert Jackson’s taking a leave of absence to prosecute the Nuremberg trials is both preposterous and morally obscene. Article III states that the justices “shall hold their Offices during good Behaviour,” and Congress has impeached federal judges before; Congress would be amply justified in impeaching and removing from office any Supreme Court justice who acted this way to sabotage the Court’s operations simply because of finding himself in the minority. Nelson would not like what would happen if a Republican Congress did so in 2025 if there is a Republican president by then.

Also, because four justices are needed, the liberals can’t do this alone — they would need Chief Justice John Roberts to join them, after Roberts publicly announced the investigation into the leaked Dobbs draft as a “betrayal of the confidences of the Court” and pledged that, if the leak was “intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.” That doesn’t sound like a man who plans to walk off his job in order to prevent the Court from deciding the case. It would also be so out of character for Roberts — and for Breyer, for that matter — that one would assume the plan involves first having them abducted by aliens and replaced by sophisticated replicas. Moreover, because Breyer is leaving the Court, a permanent roadblock would also require recruiting the newest justice, Ketanji Brown Jackson, to begin her career on the Court this way.

Nelson also assumes that a scorched-earth effort to prevent the Court from deciding one case would not produce retaliation. But if four of the five justices in the Dobbs majority see that their work has been thwarted by a spiteful cabal, they could easily just start recusing as a bloc any time there is a cert petition requesting reversal of some conservative decision by an appeals court — hey, it beats trying to persuade a fifth, right? And if the Supreme Court closes its doors to abortion cases, who would stop appellate courts from simply treating Roe as a dead letter and allowing red states within their circuits to act as if it is already gone?

The rules themselves, if read and wielded in this same deranged spirit, could cause trouble for Nelson’s argument. As 28 U.S.C. § 1 provides, “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” That doesn’t specify whether it means a quorum on a particular case, or a quorum to do business generally. The Court’s own Rule 4 states, “In the absence of a quorum on any day appointed for holding a session of the Court, the Justices attending — or if no Justice is present, the Clerk or a Deputy Clerk — may announce that the Court will not meet until there is a quorum.” That suggests that the absence of a quorum prevents the Court from doing any business at all, not just in the case at hand. Even if a walkout was treated as applying only to a single case, four conservative justices could decide to hold the entire institution hostage until it resumes doing its job.

As specified by 28 U.S.C. § 2109, “In any . . . case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” First, this assumes that there is no quorum of qualified justices, but justices who have no conflict and have already participated in argument are qualified — they are just refusing to write opinions. When a justice recuses, the Court’s opinion traditionally recites that “Justice So-and-so took no part in the consideration of this case,” but it could not truthfully do so of justices who were active at the argument and presumably already voted in conference. Second, the decision on what to do in that situation lies only with “a majority of the qualified justices” — so, if the justices who refuse to do their jobs are excluded from the “qualified” justices, that would leave the five in the Dobbs majority to decide what to do.

Nelson and his editors at Slate are surely well aware that his proposal is ridiculous and stands no chance of happening. Furthermore, they would without question regard this tactic as illegitimate if wielded against them by the dissenters in, say, Obergefell v. Hodges. What does it say about them, and about what they think of their readers, that they are making this argument in public anyway?