Rule That Is No Rule

A few days ago, McConnell told his Republican caucus that the new 6–3 majority is something the public “won’t be able to do much about for a long time to come.” But his confidence in the long view is misplaced. A constitutional crisis, by definition, throws into doubt the certainty or predictability of things; it is a turning point, a moment for decision and judgment. Our moment of crisis calls for the rendering of judgment on the following question: will the majority of the country allow an anti-constitutional minority, empowered by an anti-democratic constitution, to rule in perpetuity?

The Supreme Court in crisis

The following is an excerpt from Jack Jackson’s Law Without Future: Anti-Constitutional Politics and the American Right. Excerpted with permission of the University of Pennsylvania Press.

In the waning days of Trump’s first term (and possibly the final days of his Presidency) the Senate Republicans have installed yet another radical Justice on the Supreme Court, cementing a 6–3 ultraright majority on the Court. In addition to their ideological kinship, three of these Justices also share a history of having actively worked on the case of Bush v. Gore in 2000. That shared history is illuminating. In many ways, Bush v. Gore helped to inaugurate the constitutional impasse we find ourselves in today. The contours were visible even then: in arbitrating a contested election, a slender five-vote majority revealed cynical contempt for the practice of constitutional law by creating a new legal rule of “uniformity” in ballot recounts to halt the recount, and by stipulating that the rule applied only in this specific case—thus negating constitutional law’s underlying logic that newly announced principles apply to future cases. We can call this rule-that-is-no-rule the paradox of anti-constitutionalism. On the other side of the aisle, a terror of popular politics and a fetish for “the Constitution” led the Democrats and their institutional allies to end popular, democratic resistance in 2000 after the Supreme Court’s decision. In his concession speech to the nation, Al Gore said, “Now the US Supreme Court has spoken . . . while I strongly disagree with the Court’s decision, I accept it.”

Surely we are entering a period in which the magic of the Court’s “word” will no longer be guaranteed to work its charm. If the 2020 election is thrown to the federal courts, will a pro-Trump decision by the new 6–3 majority end with the same defeated quietude in the populace that the Bush v. Gore majority did? It is reported that President Trump badly wanted Barrett on the Court prior to the election for just this purpose. But the very success of the Right is likely also the source of its undoing: you can’t wage a long-term war on constitutional legitimacy and then imagine that legitimacy will be there when you need it.

The last-minute installation of Barrett on the Court by the same Republican Senate Majority leader who denied even a hearing for Judge Merrick Garland in 2016 may be the proverbial straw that breaks the camel’s back. What has occurred is not fully captured by the much-used charge of “hypocrisy.” Mitch McConnell has imagined that he and his majority could conjure a world in which one set of constitutional rules would apply to their party and another would apply to the opposition party. Such a regime is not simply dependent on everyday political hypocrisy: it in fact signals the very impossibility of constitutional government.

One source of hope for the anti-constitutional Right has been the breathtaking failure of liberals to offer serious resistance. Even at this late date one can spy this fecklessness in the performance of Senator Feinstein and Senator Schumer during the Barrett hearings; treating an abnormal constitutional freak show like business as usual is precisely how we arrived at where we are. But the ground is shifting. Calls to expand the Supreme Court or strip it of some its powers are growing louder. We are hurtling toward a constitutional crisis that will likely rival the one that rocked the Supreme Court when it struck down New Deal legislation in the teeth of the Great Depression. In fact, we are already there.

A few days ago, McConnell told his Republican caucus that the new 6–3 majority is something the public “won’t be able to do much about for a long time to come.” But his confidence in the long view is misplaced. A constitutional crisis, by definition, throws into doubt the certainty or predictability of things; it is a turning point, a moment for decision and judgment. Our moment of crisis calls for the rendering of judgment on the following question: will the majority of the country allow an anti-constitutional minority, empowered by an anti-democratic constitution, to rule in perpetuity?

The essay below, which explores the Senate’s refusal to grant Merrick Garland a hearing in 2016, is an excerpt from my book Law Without Future: Anti-Constitutional Politics and the American Right (University of Pennsylvania Press). The Garland case illustrates the ongoing disintegration of a commitment to constitutional democracy on the American Right. To understand where we are today, we need to reckon with where we have been.

The shadow of Trumpism looms over any thinking about the process of right-wing radicalization and its entry into power, but I want to suggest that the most important event in 2016 on this front was not Trump cobbling together 304 Electoral College votes despite winning neither a majority nor a plurality of the popular vote, but instead transpired in the US Senate. The Senate’s refusal to entertain any nominee put forth by President Obama after Scalia’s death represents an exemplary moment of anti-constitutionalism on the Right—and illuminates the widespread misdiagnosis of the phenomena. Senate Republicans launched a campaign unprecedented in modern times to strip the elected President of a constitutionally delegated power and rested this action upon an ad hoc constitutional principle—“let the people decide”—conjured up for this specific instance and no other. It was a repeat of the logic in Bush v. Gore. In response, those opposed to this serious erosion of constitutional norms could only dream once more of rising above politics, as if there in the thinnest air they could find a sturdy refuge for the rule of law.

A month after Justice Antonin Scalia died in his sleep on February 13, 2016, President Obama nominated Judge Merrick Garland of the DC Circuit Court of Appeals to fill the seat. Most observers agreed that Judge Garland represented a kind of “centrism” that, in normal times, would produce bipartisan support for his nomination in the Senate. Here is how the President introduced the nominee to the public and educated the public about the process as he viewed it:

Now, I recognize that we have entered the political season—or perhaps, these days it never ends—a political season that is even noisier and more volatile than usual . . .

I also know that because of Justice Scalia’s outsized role on the Court and in American law, and the fact that Americans are closely divided on a number of issues before the Court, it is tempting to make this confirmation process simply an extension of our divided politics—the squabbling that’s going on in the news every day. But to go down that path would be wrong. It would be a betrayal of our best traditions, and a betrayal of the vision of our founding documents.

At a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they’re disposable—this is precisely the time when we should play it straight, and treat the process of appointing a Supreme Court Justice with the seriousness and care it deserves. Because our Supreme Court really is unique. It’s supposed to be above politics. It has to be. And it should stay that way.

The President demanded congruence between means and ends: a political confirmation process can only produce a political Court, and because the envisioned end is an apolitical ideal, the means to achieve it must be through relentless depoliticization. Here the President sought not to guide but to banish politics by fusing nonpolitical means with antipolitical ends. Constitutional meaning becomes alien to politics as politics is dismissed as the noise of the ignorant wrestling over trivial matters or imaginary slights: “squabbling.”

The opposition labored under no such illusions, and instead developed a radical political theory and practice of installing Supreme Court justices. In doing so, Senate conservatives and their intellectual supporters set conservatism ablaze. First, the Senate Republicans (in unison, without dissent) broke with longstanding Senate tradition in denying any hearing on Garland’s nomination or for any nominee that the president might put forth, and thus overturned the foundations of US conservative thought by suggesting that “the people” should decide whom the next justice on the Court would be. Second, this emergent principle of popular participation was designed to dissolve beyond its invocation in the Garland case in 2016 (the Republicans were prepared to jettison it if Trump lost the election), so their new constitutional principle turned at once into the radicalism of an anti-constitutional non-principle. Bad faith infused the spectacle from beginning to end.

Justice Scalia’s death prompted an outpouring of reflections on his life and legacy. McConnell and Chuck Grassley, Republican Senate majority leader and Senate judiciary chair, respectively, published this encomium: “Supreme Court Justice Antonin Scalia was a towering figure whose sharp wit and formidable intellect were rivaled by a decades-long fidelity to our founding document and an enduring commitment to the rule of law. His death stands as a tragic loss for our country.” The leitmotifs of contemporary judicial conservatism are all present: an expressed devotion to the “founding” document, the conflation of fidelity to the document’s allegedly singular founding with the “rule of law” itself, and the imagined embodiment of these virtues in the intellect and career of Justice Scalia.

Senator Grassley also issued an individual statement after Garland’s nomination that reiterated faithfulness to originalist designs. The turbulent present would be governed by the solidity of the past: “When they structured our nation, the founders placed trust in three separate but equal branches of government . . . the power to nominate an individual to the Supreme Court is granted to the President and authority is given to the Senate to provide advice and consent.” All true. But immediately after expressing this commitment to the founders and their wisdom, the senator declared the past to in fact be no guide at all, for “[n]owhere in the Constitution does it describe how the Senate should either provide its consent or withhold its consent.” Absent explicit textual provision, the senator found himself in political and theoretical free fall and elected to abdicate the responsibility of advice and consent. Or perhaps paradoxically, he claimed the “majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year. . . . The American people shouldn’t be denied a voice.”

Throwing the nomination and confirmation process of Supreme Court justices to the American people is a provocative—and historically progressive—idea. A proper genealogy of this position would likely track back to FDR’s “court packing” plan in 1937, the Socialist Party’s call under Eugene Debs in 1912 to curb Supreme Court power and “elect all judges,” and further back to the anti-Federalists’ opposition to the federal judicial power for being “independent of the people, of the legislature, and of every power under heaven” (Brutus). Bracketing the merits of the proposition, one struggles in vain to find support for it anywhere in the two primary fonts of American constitutional conservatism: traditionalism and originalism. To put this in the language of traditionalism, can we say that there is a longstanding, deeply rooted right of the people to select the next Justice? And can the assertion that “today the American people . . . should be afforded the opportunity to replace Justice Scalia” be nestled comfortably within original understandings of “advise and consent” as conceived by “the founders”? It is not simply the absence of support in conservative thinking for this theory of popular selection of a Supreme Court justice; it is instead that this theory stands in stark contradistinction to the theories of traditionalism and originalism.

It is of course Edmund Burke who most famously defended tradition as the principal source of authority in Anglo-American constitutional thought. For Burke, infidelity to tradition snaps the bonds of allegiance and connection across generations and dissolves the inherited wisdom that a civilization has accrued over time. In the “science of jurisprudence . . . is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns.” Edwin J. Feulner, the founder and longtime president of the conservative think tank the Heritage Foundation, argued that “the modern conservative stands with Burke” because of Burke’s “abhorrence of ideology and radicalism,” his attachment to “policies of prudence,” and his idealization of “custom, tradition, and faith.”Every one of these alleged conservative virtues would ultimately be cast aside in the case of Judge Garland.

The Republican refusal to consider any nominee to fill Justice Scalia’s vacated seat on the Court constituted a radical break with the “customs and traditions” of the Senate. As one political scientist correctly pointed out, it is “certainly not a norm or tradition by presidents refraining from nominating in a presidential election year or by senators refusing to consider such nominations.” Indeed, there is simply no example in modern Court history of a blanket refusal to consider any nominee, rather than opposition to particular nominees.

In fact, the US Senate confirmed Supreme Court nominees in the election years of 1912, 1916, 1932, 1940, and 1988. And in 1956, President Eisenhower placed William Brennan on the Court via a recess appointment (the Senate confirmed him the following year). To find the most recent parallel, one would have to venture back to the tumult of Reconstruction, when the Senate majority, in implacable opposition to President Andrew Johnson, reduced the size of the Court and thus abolished the seat of appointment. Abandoning tradition for such an exceptional precedent is precisely what Edmund Burke rejected when he admonished English supporters of the French Revolution for attempting to link the revolutionary principles of the French to the English Glorious Revolution a hundred years earlier: “The gentlemen of the Society for Revolutions see nothing in that of 1688 but the deviation from the constitution; and they take the deviation from the principle for the principle.”

The Republican’s constitutional “principle” of 2016—that the Court should be directly influenced by “the people” and therefore no nominations to the Court should occur during an election year—would be a most curious one to the architects of the US Constitution: if the writers of the Constitution had wished to deny the President this particular appointing power during his final year in office, surely they could have expressed this in the document. Nothing in the text states or suggests that the powers of the President wax or wane while in office. In the real world of politics, the persuasive powers of the President do of course ebb and flow, and the ideological composition of the Senate can shift across a President’s term in office and contour the parameters of acceptable nominees to the Court, but neither of these facts establish a “principle” emanating from the text, as originally understood, that eliminates any of the President’s powers in year four of his electoral term in office. In fact, both George Washington and John Adams appointed Supreme Court Justices during their last year in office (Adams appointed Chief Justice John Marshall after losing the election of 1800 and prior to Jefferson being sworn in as president in 1801). Both text and practice cut against any nominally originalist effort to justify the Senate majority’s position that Justice Scalia’s open seat should not be filled by any Obama nominee.

The full scope of the departure from an originalist understanding of the Constitution becomes clearest when considering the political theory behind both the text and its application by the founders. Alexander Hamilton and James Madison, primary authors of The Federalist Papers, explicitly defended the removal of “the people” (in the everyday electoral sense) from participation in constitutional politics: in the originary moment, the people were explicitly and deliberately excluded from the selection of federal judges in general and Supreme Court justices in particular. The President possessed the appointment power, but between him and the people stood the Electoral College. The Senate possessed the confirmation power, but between the Senate and the people stood the state legislatures: prior to the ratification of the Seventeenth Amendment in 1913, the state legislatures elected US senators.

As we know, conspicuously absent from the appointment and confirmation process is the House of Representatives. The House of Representatives was designed to be most in accord with the wishes and desires (and dreaded “passions”) of the people. It was precisely this immediacy and dependency that, for the founders, rendered the House unfit for confirmation power. The Senate, by contrast, possessed distance from the people, and was therefore Hamilton and Madison’s favored half of the legislature in which to vest Supreme Court confirmation power. “To what purpose then require the co-operation of the Senate?” Alexander Hamilton queried. “I answer . . . It would be an excellent check upon a spirit of favoritism in the President, and tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

In the case of the Obama’s appointment of Judge Garland, this theory translated into practice: no one suggested Garland possessed an unfit character—indeed, after Trump’s election, Senator Mitch McConnell suggested Garland, whom he called an “apolitical professional,” as a possible head of the FBI. But in the Senate’s principled inaction on Garland’s nomination, the originalist vision crumbled because the newly articulated principle hitched the selection of the next justice to a view toward popularity and an immediacy to the people. The joint statement of Senator Grassley and Senator McConnell could not be further from an originalist understanding of the Senate’s role in the confirmation process: “[T]he American people have a particular opportunity now to make their voice heard in the selection of Scalia’s successor. . . . How often does someone from Ashland, KY or Zearing, Iowa get to have such an impact?”

Such a radically anti-originalist turn, ironically made in tribute to the imagined originalism of Scalia, raises a host of vexing questions for conservatives. If the people are to have a voice, then on what grounds does the advice and consent power remain in the Senate? Should there be a constitutional amendment to relocate this power to the House of Representatives? On what basis could Senators Grassley and McConnell oppose an amendment that proposed precisely this? If the voice of the people is most authentic and clear in a presidential election, shouldn’t the distortion of the Electoral College be abolished in favor of direct, nationwide popular vote? And how can any theory of a unilateral Senate right to partially annul the previous presidential election be squared with Hamilton’s observation that a President’s “nomination may be overruled: this it certainly may, yet it can only be to make place for another nomination by himself. The person appointed must be the object of his preference, though perhaps not in the first degree.”

The Senate checks the President with “advice and consent” power, but the President’s nominating power doubles back and also serves as a check on the Senate’s advice and consent power. If one power could defeat the other absolutely, there would be nothing to check and nothing to balance. The refusal of the Senate to even entertain the nomination of Garland was special precisely because the reasoning reversed the thinking of the founders by negating in principle the futurity of the nominating power of the executive. Here there was no check on excessive power; instead, there was more fundamentally a profound reordering and redistribution of power by the Senate and to the Senate.

Although the senators in the majority party cited over and over that their action emanated from constitutional sources (Article II, section 2), the party’s political motives make clear that what was being engineered was not a radically new constitutional principle but an assault on constitutional principle as such. The editorial board of the New York Times described the Senate majority’s refusal as “A Coup Against the Supreme Court,” but it went beyond just the Court—it was also a coup against the 2012 election and electorate, a coup against the underlying rationale of the senatorial power enumerated in Article II, and ultimately a coup against the futurity that underwrites constitutionalism. Because no sooner had the primary political thinkers and actors of the Right unveiled the theory of popular voice in selecting a Supreme Court justice than they abandoned it. This unprecedented action would not extend beyond the immediate case at hand, even though, paradoxically, the immediate case at hand was rationalized as a matter of principle (“the people should decide”) that by definition would have to govern beyond its first application to qualify as a constitutional principle.

In February 2016, when Obama nominated Garland, Donald Trump’s strange (if in retrospect unsurprising) ascent to power was not yet apparent. Even after he secured the GOP’s nomination in May, his path to the presidency appeared unlikely as murmurings about a convention challenge or an independent conservative candidate swirled throughout the summer months. The prospect of a victory by the Democratic candidate Hillary Clinton loomed on the horizon—and faced with that possibility, the specter of a prolonged constitutional crisis emerged. Leading Republicans who had embraced and enabled and enacted the nullification of Obama’s appointment powers in the name of “the people” began to argue that no Democrat would be permitted to fill Justice Scalia’s seat. On the eve of the 2016 election, Senator Burr of North Carolina said, “I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” Senator Cruz of Texas cited precedent of the Court having fewer than nine justices, suggesting that an indefinitely open seat would perhaps be ideal. And days prior to the election, a leader of the Heritage Foundation “signaled that this year’s Republican blockade of President Obama’s nominee, Merrick Garland, is just the beginning of a fight that could last the entire first term of a Clinton Presidency.” So-called moderate senators on the Right, those celebrated for being “more willing to compromise,” suggested a rushed confirmation of Garland during the lame-duck Congress if Clinton won the election—thus excluding the people from their supposed role in deciding the next justice.

One confronts here not rival or conflicting constitutional interpretations or visions. Instead, we witness an increasingly emboldened and ascendant anti-constitutional politics. The Garland event showed a radicalized Senate invoking a form of law to eviscerate the norm of law: a constitutional principle that proved to be not a constitutional principle. But many observers failed to accurately grasp the underlying cause of the situation. The Editorial Board of the New York Times turned to Bush v. Gore to make sense of the event, curiously citing Al Gore as inspiration for resistance in the face of an impending constitutional crisis. The Times celebrates Gore’s concession speech to the coup of Bush v. Gore as “one of the most important speeches in American history” because his speech affirmed the orderly work of honorable institutions “under the rule of law.” Gore’s concession speech the day after Bush v. Gore was indeed one of the more important moments of American history, but for different reasons: it taught the wrong lesson. Gore’s quiet and dignified acquiescence did not restore constitutional normality; it normalized its antithesis.

Of course, the constitutional crisis in question—a multiyear Senate refusal to entertain a Clinton nominee—evaporated when she won the popular vote but lost the Electoral College vote. This perfectly constitutional and perfectly antidemocratic outcome should spur some skepticism about unnuanced invocations of the rule of law: the negation of democracy was not a negation of constitutionality or law but its smooth operation, in total accord with its original principles. This too is a missed lesson from the case of Bush v. Gore, one studiously evaded in the ritual celebration of Gore’s concession speech. Our predicament today requires a democratic critique of the Constitution. Unthinking fidelity to the existing Constitution both saps and discredits the energies necessary for constitutional revision and political reimagining.

In any case, Donald Trump lost the people but nonetheless won, and thus so did the Senate coup. As one news headline put it: the Senate majority leader won his bet. Given that, why imagine a chastened return to constitutional normality? Interestingly, President Trump also dwells almost exclusively in the language of winning and losing—it’s the basic grammar of his political thinking. Asked if he had any regrets about using “divisive campaign rhetoric,” rhetoric that normalized the demonization of entire populations and fused the incitement of violence with the illegality of persons, he replied, “No, I won.”

In political theory, the antecedent for this kind of thinking is not James Madison or Edmund Burke. Its roots lie elsewhere. Writing not much later than a decade after World War II, George H. Sabine attempted to summarize the meaning of fascism and to place it within the history of political theory. Although fascism and national socialism were “philosophically valueless,” they nonetheless “indubitably happened, and since there can be no guarantee that their like will not happen again, they must be recorded as parts of twentieth century political philosophy.” Although these movements demonstrated a variety of attachments and grievances that differed across national frontiers or even between different sects within each nation, a few core convictions held them together. Two are most apt for the present. The first was that “both fascism and national socialism were before everything governments of men, with a minimum of dependable legal rules.” Second, the movements elevated, in almost inverse relation to the devaluing of the law, the concept of the will or, as the German Führer would say, “will and determination.”

During the confirmation impasse, one often heard that the Supreme Court had previously had fewer than nine justices on the Court, and that nothing in the Constitution stipulated a set number of justices. This is true. However, the number of justices is established as a matter of law, not senatorial discretion. It is a federal statute that provides that 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.” When Senator Ted Cruz, a senator with an absolutely sterling legal pedigree, casually states that there is historical precedent for a Court with fewer than nine justices to justify the Senate’s circumvention of normal legal means to alter the established number of Court seats (altering the number of seats by law, in contrast, may now be both wise and necessary), one is reminded of a fact from the darker recesses of twentieth-century European history that “it is hard to subvert a rule-of-law state without lawyers.” In the place of the normal procedures of law but still clinging to the text of Article II for legitimacy, the paradox of a constitutional principle against constitutional principle governs through no other basis than the power of “will and determination.” The vice president of government relations at the Heritage Foundation stated plainly that blocking any nominee by a Democrat to fill Scalia’s seat would require “an immense amount of willpower” once the principle of the people’s voice had been exposed as nothing but a delaying ruse. Thus, a central think tank of the modern American Right, which had only years earlier attempted to track its historical, political, and theoretical origins back to Edmund Burke, now replaced an essential regard for tradition with nothing more than a devotion to anti-constitutional will and determination.

Only a counterpower unafraid of politics and clear in what it confronts can check it.

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