The Constitution, political norms and the future of the Supreme Court

The death of Justice Ruth Bader Ginsburg has people all over the country asking questions about the future of the U.S. Supreme Court. Specifically, people are wondering if the U.S. Senate will confirm President Donald Trump’s nominee before the coming presidential election on Nov. 3. Many arguments are being made that such a move would not be fair since the Senate did not even grant hearings to President Barack Obama’s nominee in 2016 following the death of Justice Antonin Scalia.

“I do think there will be a new appointee to the Supreme Court before the election. There seems to be little standing in the way of that,” said Michael Dichio, assistant professor in the University of Utah’s Department of Political Science. “Technically, what President Trump and the Senate are doing is constitutional, and since they have the majority votes for it, I suspect they will confirm a justice before the election. But, nevertheless, if a justice is confirmed, it would be in record time for the modern age. All this goes to show that the Constitution’s silence allows for constitutional norms to constantly be in flux.”

The U.S. Constitution states that when there is a vacancy on the Supreme Court the president shall put forth a nominee and the Senate shall advise and consent. That’s it. All the arguments being made now and those made four years ago have nothing to do with what’s actually written, but instead with the perceived norms that can change depending on who is in power.

“A lot of these things that we see as guiding political behavior are just that. They are norms that are read in between the lines,” Dichio said. “If you watch you see them sort of slowly change and be justified in their changing over time, such that the next behavior becomes more acceptable.”

While Republicans are getting the most attention right now for shifting norms, they are not the only ones to do it. In 2013, then Senate Majority Leader Harry Reid shifted norms to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. Then in 2017, Republicans shifted norms again to eliminate a similar rule for Supreme Court nominees.

If Trump is able to have another justice confirmed, there is talk that Democrats could try to shift another norm to expand the number of justices on the high court from nine to 11 or 13. Again, there is nothing in the Constitution saying how many justices there must be, so such a change could be made.

“I think that would be a dangerous norm to break, because it makes the United States Supreme Court seem even more partisanly captured, and thus its decisions more illegitimate,” said Dichio. “The public is less likely to respect the court when it is seen as partisan and captured.”

There are some who worry that partisanship and shifting norms are already having an impact on the court as Trump prepares to nominate his third justice. Some fear the court will swing irreparably conservative for the next generation or more. But Dichio says worries over ending a liberal era are unfounded as such an era hasn’t truly existed.

“The United States Supreme Court, at least for the last several decades, I’d say, from the mid-1970s has largely put out more conservative decisions than liberal ones,” he said. “Now, there’s some years here and there where there have been more liberal decisions than not. So, 2016, for example, there was 36 so-called liberal decisions and 33 conservative decisions, but it’s more neck and neck than anything else in the 2010s.”

As the Supreme Court changes and evolves the thing to remember is that the ultimately the makeup of the judiciary branch, as well as the executive and the legislative branches, lies within the hands of the electorate. Voters decide who is in power; therefore, they choose who makes nominations, votes on confirmations and decides the norms.

“The power of the vote and public opinion has long influenced and constrained the court’s decision-making,” said Dichio. “Let’s hope the people are able to have their voices heard and counted come Election Day. Justice Ginsburg certainly wanted that.”