The Supreme Court’s recently completed term included some landmark decisions: access to abortions, affirmative action in higher education, gun ownership rights, and public corruption. The court also issued a 4-4 split decision in essence affirming an appeals court decision on a highly controversial immigration case. While these topics are often hotly contested political issues in addition to being complicated questions of constitutional law, the Supreme Court is generally seen as above the politics that ensnare the elected branches of government.
But this is an election year, and like flowing water finds the cracks in the pavement, politics is finding its way into the Supreme Court and in more ways than one.
I’ve blogged before about pending confirmation of appellate Judge Merrick Garland to replace the late Justice Scalia and the implications of 4-4 split decisions. I read a very interesting opinion piece in The Washington Post a few months ago asserting that President Obama could appoint Garland to the court by asserting that the Senate, by its inaction, has waived its right to “advise and consent” on the nomination. The opinion piece, written by a former clerk to Justice Thurgood Marshall, essentially argued that, like most other constitutionally provided rights, said rights can be waived by failing to assert them. The narrow question posed by the author centers on “what to make of things when the Senate simply fails to perform its constitutional duty.” The author points out that:
The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.
Want to see a political firestorm which could potentially embroil the court in partisan politics for the foreseeable future? A non-recess appointment should do the trick!
In other political news, Justice Ruth Bader Ginsburg recently gave her thoughts on a potential Donald Trump presidency. In an interview with CNN’s Joan Biskupic, Ginsburg called Trump “a faker.” In another interview with the New York Times, Ginsburg even went as far as to say, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”
Trump, never one to shy away from a fight, took to Twitter to strike back, claiming the justice’s “mind is shot” and encouraging her to resign. It seems curious to me that Ginsburg, while never one to shy away from voicing strong opinions, chose to wade knee-deep into the political waters that seem to be taking over the summer news cycle.
There doesn’t seem to be an end in sight to the madness. All I can hope is that the political tsunami that is currently being inflicted upon the court will settle down over the summer and will completely fizzle out by the time the court begins its 2016-2017 term in the fall — hopefully with a full lineup of nine justices.
UPDATE (Thursday, 1:40 p.m.): Ginsburg on Thursday morning apologized for her comments about Trump, saying she regrets making an “ill-advised” statement.