Jonathan Chait wrote what is probably the best discussion of what the death of Antonin Scalia really means, Will the Supreme Court Just Disappear? The point is that the Supreme Court has power because we all accept that it has power. This is the truth of any kind of political power. It’s like money: a shared delusion. As Chait noted, “While the Republican blockade may lack any precedent, it, too, is probably well within the law.” It isn’t a matter of law. The Constitution is pretty vague about it. What really matters are norms.
I’ve discussed the broader issue here many times. A couple of years ago, I wrote, Boehner’s Paradox of Power. There I discussed how John Boehner only had power as Speaker of the House as long as he didn’t use it. The moment he actually managed the House as he thought was right, he would be thrown out. And this is a situation that supposedly powerful people have always faced. Sure, Boehner could in theory have allowed the Debt Ceiling to be raised, but he couldn’t do it practically, so his power was thus theoretical and not practical.
Look at my discussion of Marbury v Madison. That was the case where the Supreme Court proclaimed itself as the institution that defined what the Constitution meant. Regardless of that, it was the result of the Court avoiding a confrontation with the executive branch where it would be shown to be powerless. And the truth was then as it still is that the Court has no way to enforce its decisions. It is only because the rest of the nation abides by the norm that the Supreme Court defines what the law is. Norms are a very powerful thing.
Think about it on the microscale. I think the vast majority of people are like me. I wouldn’t break into my next door neighbor’s house. And the reason is because I know it is wrong. My reason is not that I will get caught and go to jail. And this is the reason society is able to get along. We don’t need to resolve every issue by what the law says. We are socialized. We know the way that people are supposed to behave and that is how we behave.
This is also true of institutions. This is the basis of Kissinger on Revolutionary Power. They do not abide by norms because they see the system itself as invalid. And this is what we’ve seen with the Republicans over the past four decades — but most especially since Obama took office. There is no consideration for the way that things have been done in the past. If there is no legal document that says it cannot be done, the Republicans will do it if it is to their advantage.
Changing Norms for Not Replacing Scalia
Right now, the Republicans are making the argument that the president should not be allowed to appoint a new justice in his last year in office. This is clearly just an ad hoc norm they’ve devised that has no precedent. And if Scalia had died at the beginning of 2013 (the first year of Obama’s second term), they would have come up with a different ad hoc reason for why they should have filibustered for the next two years and then refused to allow any other appointment during the next two. And if Clinton is president next year, they will come up with another reason why it simply isn’t acceptable for a Democratic president to appoint a replacement to Scalia.
It is this total lack of respect for norms that most concerns me about the United States as a going concern. It would have been different in the 1960s, because everyone would be getting pretty much the same news. But roughly half the nation will be hearing nothing but apologetics about how whatever new norm the Republicans are destroying is totally right and just. And if the new norm is that presidents don’t get to place justices on the Supreme Court, why even accept the power of the Supreme Court? It is just one of our norms after all.
As Ian Millhiser pointed out in his discussion of the effects of Scalia’s death, a divided Court will mean that the law of the land will depend upon where you live. In a sense, it will be the Confederates getting what they wanted. All those nutcases who want to secede from the Union will get what they’ve so long wanted: the Dis-United States of America. They always knew they weren’t going to control New York and California, just as they knew they wouldn’t control France or Japan. But those glorious states under the Fifth Circuit Court of Appeals will be able to return to the “true” America of the 1830.
Antonin Scalia’s death could succeed where the treason of Jefferson Davis and Robert E Lee failed.