American Justice 2017: The Supreme Court in Crisis

American Justice 2017

The Supreme Court in Crisis

Kimberly Robinson

University of Pennsylvania Press

Philadelphia

Copyright © 2017 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Garrett Epps, Consulting Editor

A Cataloging-in-Publication record is available from the Library of Congress

Cover design by John Hubbard

ISBN 978-0-8122-4997-2 hardcover

ISBN 978-0-8122-9475-0 ebook

Contents

Preface

1. Trench Warfare

2. The Stolen Seat

3. Stand Idly By

4. Quarter-Loaf Outcomes

5. Courting Politics

6. The Priceless Value of Citizenship

7. Macabre Challenges

8. Calm before the Storm

Appendix: Biographies of Current Justices of the Supreme Court

Acknowledgments

Preface

It is odd to say that the absence of something is what defines a thing. That, though, is unquestionably the case for the US Supreme Court’s 2016 term—a term defined by a vacancy.

The storied institution is so steeped in tradition that the Court’s own website declares that it is in many respects the same institution that first met in 1790. By statutory edict, the justices kick off each term on the first Monday in October. For practically all of its more than 225-year history, the justices have near-unanimously worn simple black robes instead of the more ornate attire donned by English judges. Since the late nineteenth century, the justices have engaged in the Judicial Handshake before each oral argument to remind themselves that differences of opinion on the Court [do] not preclude overall harmony of purpose, the website tells us.

In 2016, however, when the justices gathered to hear the term’s first arguments, there were only eight instead of the nine we have come to expect. That seat would remain empty for more than half the term. Indeed, the spot at the end of the bench reserved for the Court’s newest member had already sat empty for months.

Justice Antonin Scalia died unexpectedly on February 13, 2016, while on a hunting trip at a luxurious Texas ranch. Occurring in a rural community, the news was slow to trickle into Washington. But when it did, it sent shockwaves through the capital. Not only had the seventy-nine-year-old justice been on the Court for nearly thirty years, Justice Scalia was also one of the Court’s most well-known justices. A C-SPAN/PBS survey recently revealed that only 43 percent of Americans can name even one Supreme Court justice. But Justice Scalia’s gripping writing style and vivid language often caught the eye—or ire—of the American public. In one instance, he referred to the Supreme Court’s decision to uphold a portion of the Affordable Care Act (also known as Obamacare) as pure applesauce and jiggery-pokery. Another time, he denounced the Court’s decision to affirm the right to same-sex marriage by claiming that the Court’s reasoning resembled the mystical aphorisms of the fortune cookie. The decision was so bad, Justice Scalia asserted, that he would have hid his head in a bag had he signed onto it. One particularly notable example of dramatic language appeared in Scalia’s opinion in a 1990s dispute over after-school use of public facilities by religious organizations. Speaking about the Court’s murky Lemon test, which gauges when the government has become too intertwined with religion in violation of the First Amendment’s Establishment Clause, Justice Scalia said this:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in [Lee v. Weisman], conspicuously avoided using the supposed ‘test’ but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart.

Given Justice Scalia’s prominence in American jurisprudence, his death would have loomed large on its own. But it took center stage in the unforgettable 2016 presidential election after Senate Republicans vowed to block any nominee put forth by then president Barack Obama. With almost a year left in Obama’s second four-year term, the Supreme Court became the focus of an unseemly political battle that cast the Court as just another political body.

It is easy to view the justices that way—nine (or sometimes fewer) junior varsity politicians making some of society’s most consequential decisions based predominately on their personal and political beliefs. We seem to receive confirmation of this view every June when the Court is winding down its annual nine-month term. It is during this time that the justices frequently hand down a string of 5–4 decisions on issues that are hotly contested among the general public. These closely split decisions are more often than not decided along ideological lines.

The justices, though, do not see themselves this way. There are no Republican judges or Democratic judges, Scalia’s eventual replacement, Justice Neil Gorsuch, said over and over again during his confirmation hearing. Most, if not all, of the current justices seem to agree. Part of their job—in addition to deciding some of the nation’s most consequential issues—is to defend the integrity of the institution as not just another political branch. It is not a new concept. Alexander Hamilton famously wrote in Federalist no. 78 that the judiciary has neither force nor will, but merely judgment. The judiciary must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments, Hamilton declared. He warned that as the weakest of the three departments of power, the judiciary must take all possible care . . . to enable it to defend itself against the attacks of the executive and legislative branches.

Despite this long-held conviction—perhaps most prominently expressed today by Chief Justice John Roberts Jr.—the recent Court has not always taken all possible care to defend its reputation with the American people. Rightly or wrongly, the Court’s decisions regarding the 2000 presidential election, campaign finance, health care, and same-sex marriage have undermined the citizenry’s confidence in the institution.

These and other controversial decisions led to a crisis during the Court’s 2016 term. In October term 2016, as it is known by court watchers, the Court was seemingly hijacked by the political branches. Caught in a power struggle between the Republican-held Senate and the outgoing Democratic president regarding who would fill the seat left vacant by the death of Justice Scalia, the current justices were forced to press on through nearly an entire term shorthanded.

While the political spotlight was focused on the Supreme Court, scuttling any attempt to describe the court in apolitical terms, what did the justices do? Instead of publicly lobbying the American people or calling attention to the difficulties caused by the vacancy, they went on with their work, acting as if business was proceeding as usual while the confirmation battle played out. In public, the justices responded that they would just deal with it when asked about the shorthanded Court. In private, they likely struggled to present the Court as a functioning branch of government. True, no one can know for sure. The inner workings of the prestigious institution are obscured by secrecy. But narrow outcomes, historically low output, and the ducking of consequential issues hint at the strenuous effort the eight justices made to uphold the integrity of the institution.

This fourth book in the American Justice series tells the story of how the Court ended up in this crisis, how it dealt with the tumultuous situation, and where it is likely to go from here.

The book starts with the compelling tale of Gavin Grimm, a transgender Virginia teenager. The case turns out to the perfect example of the effects of the vacancy on the Supreme Court term—with odd procedural maneuvering and the avoidance of contentious issues that threatened to split the shorthanded Court 4–4. But the case did not start out that way, making it a captivating introduction into the Court’s 2016 term.

The story continues with the retelling of the dramatic political hijacking of the Supreme Court—from GOP leaders vowing to hold off President Obama’s Supreme Court nominee just hours after word of Justice Scalia’s death had surfaced to the bitter confirmation of his eventual successor, Justice Gorsuch.

Then this narrative takes a deep dive into how the justices dealt with the resulting crisis. One way was to deftly avoid divisive issues that could split the Court evenly and confirm its status as just another political branch. Deciding cases on extremely limited grounds—likely the only way the Court could garner a majority of justices—was another. Chapters 3 and 4 examine how the Court deployed these methods in cases dealing with issues as consequential as the separation of church and state and the right to vote to those as run-of-the-mill as insider trading and credit card fees.

The lens then gets broader as I explain how the Court got into the crisis in the first place. Procedurally abnormal and widely unpopular judicial decisions led the Court into its most notorious crisis: FDR’s court-packing plan. But despite that cautionary tale, the Roberts Court has veered onto a similar path. Chapter 5 looks at how the Court has used the First Amendment as a weapon to invalidate widely supported laws—an approach that contributed to the crisis in which the Court was embroiled for much of its 2016 term.

Chapters 6 and 7 demonstrate that even the most carefully orchestrated plans sometimes go off the rails. The Court was essentially forced into the blockbuster fight over President Donald Trump’s travel ban. The result was a much-anticipated but infinitely puzzling order that seemed to give both sides the opportunity to claim victory. But the justices also jumped into a less prominent, if no less consequential, dispute over hot-button criminal justice issues. The Court’s ostensibly voluntary foray into capital punishment, race in the criminal justice system, and law enforcement abuses stand in contrast to the rest of the term’s efforts to skirt controversial issues.

Finally, with a fully staffed bench, the Court now seems primed to leap back into the political fray. Taking cases dealing with such weighty issues as how legislatures draw voting districts, whether religious believers can exempt themselves from antidiscrimination laws, and the constitutionality of President Trump’s controversial travel ban, the Court’s 2017 term is shaping up to be a blockbuster. Should the Court continue with such aggressive dockets in future terms, that could lead it into paralysis yet again. Whether that happens will depend, of course, on how strongly the newly reconstituted conservative majority flexes its muscles—and whether the Court’s long-standing ideological make-up is upset by any retirements, unexpected illnesses, or deaths. Such events are now all that stands between a fully functional Court and the kind of crisis that impeded it in 2016.

Chapter 1

Trench Warfare

Anyone who is a parent—or really, anyone who has ever been a teenager—is likely to find Gavin Grimm’s Supreme Court case to be sympathetic. Sympathetic because the case involves a teenager. More sympathetic because it involves a transgender teen. And even more sympathetic because it has implications for the future of a group of kids more likely to commit suicide than their peers. But courts have the difficult task of weighing the needs of the few against the needs of the many. Known in the legal world as balancing the equities, the idea suggests that the extreme hardship of the few can be outweighed by the less-threatening, yet more broadly felt harms to the vast majority. And when that vast majority itself consists of uncertain teens, sympathies get muddied. Which brings us to Grimm’s case, formally known in the US Supreme Court as Gloucester County School Board v. G. G.

Gloucester County was a microcosm of the high court’s 2016 term—a term fundamentally shaped by the unseemly political battle that unfolded after the shocking death of longtime Justice Antonin Scalia. The clash left the Supreme Court shorthanded for more than a year and impacted not only the kinds of cases the justices took but also the way that they resolved them. In particular, the justices batted away contentious issues that threatened to split the evenly numbered Court 4–4 and cast it even more as a political institution. Ultimately, that was what happened in Gloucester County.

But it did not start out that way.

In August 2016, two months before the high court would kick off its 2016 term, Grimm was getting ready to start his senior year of high school. The insecurities and uncertainties surrounding such a momentous time were likely amplified by the fact that Grimm is a transgender boy—that is, Grimm was born a girl but identifies as a boy.

Grimm had been diagnosed with gender dysphoria, a "conflict between a person’s physical or assigned gender and the