A Dead Justice and A Split Court: Deadlock and Uncertainty Threatens the Legitimacy of the US State

Overnight the death of justice Antonin Scalia has made the role of the US Supreme Court a major issue in this year’s presidential elections. It has also undercut activist moves by the Supreme Court conservative majority to curb presidential power and roll back liberal laws on abortion, public sector unions, affirmative action, and political representation.

There is no pretense any more that the Court is an impartial body standing above politics. Within an hour after the announcement of Scalia’s death, the Republicans, led by Mitch McConnell, vowed to block any Obama nomination – implicitly rejecting the legitimacy of the 2012 election and the authority of the presidential office. So it appears that for the next 11 months at least, the court will be split 4-4 between liberals and conservatives.

Scalia was a pugnaciously partisan ideologue, constructing a rigidly “originalist” interpretation of the constitution that rationalized the reversal or gutting of liberal laws by prioritizing legal texts over legislative intentions. He was part of the majority that struck down the Voting Rights Act and upheld Citizens United. Activist Bianca Jagger tweeted: “I have never forgotten this quote ‘Mere factual innocence is no reason not to carry out a death sentence properly reached’.”

The implications of some of the court’s recent rulings now come sharply into focus. One in particular is the conservative majority’s shock decision last week to place a hold on implementation of the Obama administration’s Clean Power Plan that set emission standards on power plants. A lower court had already rejected state and coal industry appellants’ demand that the regulations be blocked while the case was heard, and normally the Supreme Court would have waited until the lower court had made its decision. The hold has the effect not only of neutralizing Obama’s regulatory agenda, but also sabotages international agreements on curbing carbon emissions.

The New York Times commented: “A clear majority of Americans, including many Republicans, agree that global warming is or will soon be a serious threat. Nearly two-thirds said they would support domestic policies limiting carbon emissions from power plants. But flexibility, a generous time frame for compliance and public opinion were not enough to sway 27 states that sued to stop what they call a ‘power grab’ by the federal government and Mr. Obama’s ‘war on coal.’ Many of these states depend heavily on coal-fired plants for their power and many are run by Republican governors, who either willfully disbelieve well-established climate science or find it politically impossible to take steps necessary to reduce emissions.”

The majority’s decision was also an unprecedented challenge to the legitimacy of executive action. Talking Points Memo noted: “the eagerness of the court to intervene in the implementation of the Clean Power Plan also plays into a larger narrative of a conservative Supreme Court preparing to wage war over how Obama has used his executive power. Coupled with how the Supreme Court has framed a blockbuster immigration case heading its way, the stage is set for the court to engage in the question of whether Obama’s executive powers need to be reined in.”

It stood to concretize a split between the three branches of government, encouraged by the polarization of state legislatures, a stalemate in Congress, and Republican ideological denial of the dangers of global warming that prevents a rational energy policy. Essentially, the erstwhile Court majority had openly set itself up against public opinion and thrown in its hand with the oligarchical opponents of any kind of regulation.

According to ThinkProgress: “This particular challenge to the Clean Power Plan does not arise in a vacuum, however. It is really only one face of a multi-faceted effort to shrink the powers of the presidency and prevent agencies like the EPA from carrying out their lawful authority. Last November, at an annual convention of the Federalist Society — a conservative legal organization whose members include several sitting senators and three Supreme Court justices — the gathered attorneys appeared obsessed with various plans to limit agency actions. … The states challenging the Clean Power plan rely heavily on a 2014 opinion by Justice Scalia suggesting that ‘clear congressional authority’ may be necessary when an agency takes a novel regulatory action. … The challenge to the Clean Power Plan… is also one of the most ambitious attempts to rethink the role of government to reach the Supreme Court in years. And five justices thought this challenge had enough merit that they halted the Clean Power Plan before any lower court had even considered those rules.”

Since Congress is likely to be deadlocked for the indefinite future, such a challenge to the legitimacy of the executive branch’s actions would have made it virtually impossible for it to function. A Democratic president, whether Clinton or Sanders, would have found the power of the office severely curtailed.

Scalia’s death has brought this challenge to a screeching halt. Under the court’s rules, 4-4 split decisions will not set precedents and will leave intact the lower court rulings under review. Linda Hershman pointed out in the Washington Post: “Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. … Even if the GOP blocks [Obama’s] nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority.”

UPDATE: Talking Points memo notes: “Even if a Republican president ultimately names Scalia’s successor, the conservative legal movement will have suffered a dramatic setback by virtue of how many important cases it had queued up for this year that will be thrown into turmoil by a court with only eight justices and the potential for 4-4 tie votes. … the Supreme Court’s critics have been … pointing to a pattern in which a right-leaning justice sends a hint that the court is ready to take a case targeting some particular precedent, which in turn prompts legal activists to rush to get a case like that to the court’s doorstep. Legislators in red states have meanwhile pushed the envelope in legislation — with, for example, laws that restrict abortion access and voting rights — on the assumption they’d face friendly terrain if challenges to the laws made it to the Supreme Court. That advantage is no longer a given.”

Obama now has eleven months to craft his legacy. And the stakes in the presidential election have been raised significantly. As Josh Marshall commented: “Regardless of what happens with Justice Scalia’s replacement, there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term. The stakes on all the issues people care about—from abortion to guns, from campaign finance and voting rights to affirmative action and the environment, depend upon 9 unelected Justices who serve for life.”

Despite the Republicans’ plans to prevent Obama appointing a new justice, he must do so in order that government continues to function. He must not allow the extreme right to provoke a constitutional crisis that would benefit only the plutocracy in its economic and political assault on working poor and middle class Americans. Otherwise the US will further lose state legitimacy and become as fractured as the Republicans themselves.


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Filed under 2016 Election, Antonin Scalia, clean air act, judicial overreach, State legitimacy, Supreme Court, Uncategorized

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