“Would scores of people camp out on the Supreme Court sidewalk to see that argument?”
That’s the question that separates sleepy SCOTUS terms from the seismic ones. And this new term’s docket, so far, is a snoozer. Yet I come to celebrate, not condemn, this development.
Granted, as a lawyer, journalist and court junkie, I love a good proof of the Tocquevillian theorem — “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” — and the last decade of Supreme Court under Chief Justice John G. Roberts Jr. was rife with proof.
Most, but not all, of these blockbusters were decided by a 5-4 vote.
And this term? Copyright. Patent. Bank fraud. False claims. Bankruptcy. Antitrust. Sentencing. Double jeopardy. Ineffective counsel. Insider trading. Unreasonable seizure. Trademark.
Yet none of these cases are likely to split the Court down ideological lines, establish new rights or reverse precedents. So go back to the top and ask yourself the question. Your answer? That’s what I thought.
The drama went off the docket this year for two reasons.
First: Not every term will be the term of the century. The court went bonkers with the blockbusters over the past few years because that’s when those cases came to fruition, and few now are ripe for a similar feast.
Second: the deadlock.
The Senate Republicans’ vow not to fill the late Justice Antonin Scalia’s vacant seat until after the next president takes office means the eight remaining justices are wary of taking any case that will divide them evenly. That’s particularly true of high-profile and politically charged cases where the four Democratic appointees will oppose their four Republican-appointed colleagues. For example: The justices still haven’t scheduled oral arguments in a divisive church-state case they granted before Scalia’s death.
While the court last term managed to salvage narrow unanimity in a contraceptive mandate case that equally divided the justices by party line at oral argument, the eight members were not so successful in four other cases, including the 4-4 deadlock that left in place a lower court’s decision to block President Obama’s executive actions on immigration.
The justices don’t wish to repeat those experiences. After all, deadlocks, which yield no ruling at all, defeat the purpose of why the court takes most cases: to resolve differences among the appeals courts on particular points of law.
Rather than waste their time with futilely acrimonious arguments in open court and in private conference that will lead, at best, to unsatisfying compromises, the justices have shaped a docket heavy on the kinds of technical issues with little political valence that each year result in the court’s many unanimous or near-unanimous decisions.
That’s a good thing for the rest of us.
From the Gilded Age through the civil rights era and up through Justice Scalia’s death, we’ve placed our faith in a majority of nine unelected jurists to save us when the political process doesn’t or can’t deliver the results we want. But the habit risks blinding us to new political moments when rights may actually be won and defended at the ballot box instead.
Just look at the 2013 conservative victory taking down a key provision of the Voting Rights Act on states’ rights grounds, or the near-miss in 2012 to kill Obamacare in its cradle as a commerce clause violation. These cases wound up in the Supreme Court because Republicans figured it was more efficacious to nudge a majority of justices in the “right” direction than a majority of lawmakers. By choosing a judicial strategy, they lost the opportunity to truly win hearts and minds and — in time — secure the vindication of popular validation.
But if the judicial route seems off-limits — because the court shuns controversy — then ideologues and activists, indeed all of us, have to make do with democracy. Only months after the justices’ 4-4 deadlock in a challenge to North Carolina’s voting law, Democrats — particularly African American Democrats — in the Tarheel State this November may well boot from office the Republican governor who signed a law meant to dilute their very ability to do so.
Now, the truth is that this mercifully quiet moment will not last. With complete jurisprudential domination for a generation to come at stake this presidential election, the Democrats’ mantra of “We Need Nine,” echoed by Justice Ruth Bader Ginsburg, is not some battle cry of neutral institutionalists; it’s a lip-licking for a restoration of the Warren Court’s liberal revolution. And the stonewalling Republicans certainly will not desist from completing the counterrevolution they’ve pursued through 40-plus years of conservative-turned-liberal appointees, wobbly swing voters and the untimely death of an icon.
Sooner or later, there will be nine. Our presidential candidates are running on it. And Donald Trump or Hillary Clinton not only may get to choose someone to fill Scalia’s seat, but also that of Justices Ginsburg, 83, Anthony M. Kennedy, 80, or Stephen Breyer, 78. We may then see an ideological supermajority that decides — once and for all — the blockbuster issues that for a generation have had us camping out on the Supreme Court sidewalk.
As that horror or heaven awaits us, can’t we all enjoy this brief, sleepy interlude? Can’t we use it to dream of an alternate reality in which the Supreme Court concerns itself with the finer points of Intellectual Property and Bankruptcy law and leaves our thorniest political questions to the better angels of “We the people”?
Mike Sacks, a former Supreme Court and congressional reporter, is the national political correspondent for E.W. Scripps and host of “The Race,” a presidential campaign news show.