New York Times (Editorial)
October 3, 2016
This is American politics in 2016: the normalization of the deeply abnormal, the collapse of customs of behavior and respect, and the creation of an environment so toxic and polarized that the nation’s leaders struggle to carry out the most basic tasks of government.
In this chaotic climate, it can be easy to forget that the Supreme Court, which begins a new term on Monday, remains without a ninth justice nearly seven months after President Obama nominated Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia in February. That seat is likely to stay empty until well into 2017, and depending on which party wins the White House and controls the Senate, possibly long beyond that.
This is entirely contrary to the workings of a constitutional government, and it is inflicting damage on the court and the country. But the Senate Republicans care nothing about that as they continue their unprecedented stonewalling of Judge Garland’s nomination in the hopes of preserving the court’s conservative majority.
Meanwhile, the eight justices have split evenly in several major cases, which puts off any final judgment on lawsuits that affect millions of Americans. These include challenges to the right of public-sector unions to charge collective bargaining fees to nonmembers, to religious exemptions from the Affordable Care Act’s birth-control mandate and to the legality of President Obama’s executive actions on immigration.
The inability to issue precedent-setting rulings appears to have led the justices to grant review on fewer new cases than usual. So far, the new term’s docket includes cases involving, among other things, the use of race in redrawing state legislative districts, a free-speech challenge to a federal law that denies protection to disparaging trademarks, a challenge to the secrecy of jury deliberations when there is evidence that a juror was racially biased against the defendant and Texas’s unscientific standard for determining whether someone is intellectually disabled enough to be spared from execution.
Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.
For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called “possibly the largest rollback of voting rights” since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.
North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.
Other high-profile cases that demand attention from a full court include a challenge to a Virginia school’s refusal to allow a transgender boy to use the boys’ bathroom (the court in August temporarily blocked a lower court’s order in the boy’s favor, but has not yet agreed to hear the case); a 28-state lawsuit against the Obama administration’s effort to reduce pollution from coal-fired power plants; and the cases on immigration, birth-control access, and public-sector union dues that the deadlocked justices failed to resolve last term.
The court, particularly after it decided the outcome of the 2000 presidential election by a 5-to-4 vote, has struggled to overcome the growing public perception that it is little more than another political body, no less ruled by partisanship than the other two branches. The Senate Republicans’ insistence that no hearing can be held for the next justice until after the new president takes office only serves to reinforce that notion.
Conservative apologists pretend this is all just standard political gamesmanship, but nothing like it has ever happened before. Even when Democrats strongly opposed Republican nominees, like Robert Bork or Clarence Thomas, they still respected the president’s right to make a nomination, and they held hearings and had a full vote. In contrast, the Republicans have shut down the process entirely out of fear that the near half-century of conservative control of the court could come to an end.
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