We may be living in the final days of the Supreme Court of the United States

Constitution, meet crisis.

CREDIT: AP Photo/Pablo Martinez Monsivais
CREDIT: AP Photo/Pablo Martinez Monsivais

Sen. Richard Burr (R-NC) joked to Republican volunteers on Saturday about gun owners shooting Hillary Clinton. In audio first obtained by CNN, the North Carolina senator talks about wandering into a gun store and seeing a magazine with Clinton’s picture on it. “I was a little bit shocked,” he quips, that “it didn’t have a bullseye on it.”

He later apologized. And, in fairness, it is unlikely that the sitting chair of the Senate Intelligence Committee believes that assassination is the appropriate response to a Democratic woman running for president. But the same recording in which he made those remarks also captures his thoughts on the appropriate response to a Democratic presidency. And it is a constitutional crisis.

“I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

“If Hillary Clinton becomes president,” said Burr, who is currently locked in a tight race to keep his seat in the Senate, “I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

Rigging the Court

Burr is at least the third Republican senator to openly admit that this is the plan if Clinton wins the presidency. Sen. John McCain (R-AZ) made a similar promise last month. And Sen. Ted Cruz (R-TX) also alluded to a coming judicial blockade if Republicans retain the Senate in a Clinton administration.

While other senators (and McCain’s own spokesperson) have tried to distances themselves from this kind of rhetoric, their statements hardly foreclose the possibility of such a blockade. Sen. Orrin Hatch’s (R-UT) statement that “close scrutiny of any future Hillary Clinton nominee will be particularly critical since she has advocated shifting the court to the left” is a fairly representative example. Even the more moderate-sounding Republicans are emphasizing their ability to block the kind of nominees that a President Clinton would view as acceptable appointments to the Supreme Court.

As I explained when McCain suggested that only Republicans should be allowed to appoint Supreme Court justices, the GOP’s proposed blockade is “nothing less than an existential threat to the Supreme Court.” Courts, unlike elected bodies, draw their legitimacy from two sources — their obedience to a written text and the widely-shared belief that judges are appointed in a fair and constitutionally sanctioned process.

As Alexander Hamilton wrote, the judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” It depends upon the elected branches’ belief that judicial orders are worth enforcing, even when the people elected to govern disagree with those decisions.

But that belief will be shattered if Republicans take up Burr, Cruz and McCain’s charge. For while it is one thing to ask the executive to enforce a decision handed down by a fairly constituted bench, it is another thing altogether to ask it to become the servant of a rigged judiciary.

What’s at stake

This problem is exacerbated by the growing gap between how Democrats and Republicans view the Supreme Court’s role in a democracy. In my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, I argue that liberals and conservatives largely reached a truce in longstanding battles over the nature of our Constitution during the Nixon through Bush II administrations. Since the Franklin Roosevelt administration, liberals railed against judges who tried to impose their own economic policy preferences on the nation, and conservatives largely conceded that the liberals were right beginning in the 1970s.

President Nixon railed against judges who “impose their social and political viewpoints on the American people.” President Reagan promised judges who would exercise “judicial restraint.” President George W. Bush labeled court decisions that did too much to hobble the elected branches as “judicial lawlessness” and “a threat to our democracy.”

But this general view, that democracy is the rule and judicial intervention is the exception, no longer has a home within the Republican party. They abandoned it in their Ahab-like obsession with killing Obamacare. They abandoned when they demanded that religious conservatives be given broad immunity to the law, even if that immunity strips other people of their rights. They did it to strip President Obama of his lawful authority, even when that authority is explicitly given to him by federal law.

And many of their leading voices gaze upon the Supreme Court and see an opportunity to turn back a century of liberal triumphs. Sen. Mike Lee (R-UT), a conservative thought leader in the Senate who Donald Trump floated as a possible Supreme Court justice, believes that child labor laws, Medicare and Medicaid are unconstitutional. Other senators fantasize about reviving long-discredited doctrines that prohibited the minimum wage and laws protecting the right to unionize.

So when Burr, Cruz, and McCain threaten to transform the Supreme Court into a Republicans-only club, that threat needs to be understood alongside the GOP’s increasingly aggressive demands on the federal judiciary. The question is no longer just whether Roe v. Wade survives, or whether universities can take certain steps to increase racial diversity on campus. The question is whether our elected officials will still be allowed to govern in a way that displeases Republicans. It is also whether, given the conservative justices’ hostility to voting rights claims, our elections can be skewed in ways that prevent Democrats from prevailing even when they enjoy majority support.

The end of the Supreme Court

Given this wide gulf between Democrats and Republicans regarding the Court’s legitimate role, it’s time for a thought experiment. Imagine that Hillary Clinton wins the White House, but Republicans retain the Senate and keep her from appointing a justice for her entire presidency. Over the course of her four or eight years in office, three more vacancies open up as the Court’s most elderly members eventually succumb to mortality. Then imagine that a Republican wins the White House in 2020 or 2024, and that this Republican swiftly fills those four vacant seats.

This can happen, by the way, even if a majority of the nation would prefer a Democratic Senate to a Republican Senate. Indeed, it is happening right now. According to the voting reform group FairVote, “the 46 Democratic caucus members in the 114th Congress received a total of 67.8 million votes in winning their seats, while the 54 Republican caucus members received 47.1 million votes.” A ThinkProgress analysis determined that nearly 171 million Americans are represented by Democratic senators, while only about 150 million are represented by Republicans. If the Senate bore any resemblance to a democratically legitimate legislative body, President Obama’s Supreme Court nominee, Merrick Garland, would have become a justice months ago.

So it is very easy to imagine a future where President Hillary Clinton is hobbled by a Republican Senate for her entire presidency, no matter what the American people have to say about this arrangement. In this future, however, many states will still be able to pass laws, and some of these laws would be reviled by Republicans. Although there’s no good argument that a state minimum wage law is unconstitutional, for example, the idea that such laws are invalid is gaining ground among Republicans.

So here’s the hypothetical: Let’s say Washington’s governor signs a $15 minimum wage law in 2023. Two years later, President Mike Pence fills the four vacancies on the Supreme Court, and the newly constituted bench strikes down California’s law in a 5–4 decision. If you are the governor, and you’ve just watched one of your signature pieces of legislation wiped away by a rigged bench applying an extraordinarily dubious legal theory, do you obey that decision, or do you declare that the state of Washington no longer recognizes the legitimate authority of the Supreme Court of the United States?

As you can probably tell from the title of my book, Injustices, I harbor a deep ambivalence about the Supreme Court as an institution. The terrible legal theories discussed above — the ones striking down child labor laws and the minimum wage, for example — aren’t all hypothetical ideas. They are actual decisions that the Supreme Court handed down in the darker moments of its history. The GOP doesn’t seek to built a libertarian dystopia from nothing; it largely seeks to revive doctrines that once commanded a majority on the Supreme Court and are now discredited.

So America could become a very dark place if the hypothetical Democratic governor mentioned above simply acquiesces to the decisions of a rigged Supreme Court. At the same time, however, there are very real consequences to a decision not to obey the Court’s rulings. If Washington is not bound by an admittedly illegitimate decision striking down a minimum wage law, then why can’t Mississippi declare it is no longer bound by Court decisions protecting marriage equality?

Of course, in a world where only Republicans get to name justices, liberal decisions of any kind are unlikely to last very long. But there also needs to be some institution that can say what the law is. The reason why we are a Union — a single nation — and not an atomized group of fifty separate nations, is that federal law means exactly the same thing in Michigan as it does in Florida or Utah. One of the primary functions of the Supreme Court is to maintain that uniformity. But it cannot do so if it has been wholly discredited by partisan efforts to rig its membership.

There’s no optimistic way to spin these facts. The next several years could be very bleak for the Supreme Court, and, ultimately, for the Constitution. In their quest to maintain conservative control of the judiciary, Republicans are playing with a fire that can burn the cords tying our Union together. And it is likely that they will unleash that fire if they keep control of the Senate.