by Chris Edelson, assistant professor of government, American University School of Public Affairs
In the days following Justice Scalia’s death, the Senate and President have been gearing up for a high-stakes battle. Nominating a new justice to the Supreme Court is always an important event, but congressional dysfunction raises the stakes to new levels.
Just hours after Scalia’s death was announced (in some cases, within only a few minutes), Republicans rejected the notion that President Obama could name any new justice to the Court, insisting the vacancy should remain open until the next president is elected. If the Republicans stand by this initial decision, their strategy could backfire as their party could be seen as obstructionist (recall the response to the government shut down). Democrats might exploit an opportunity to rally their base to the polls in November. It will be interesting to watch this unfold. But it’s also worth taking a step back and considering why stakes surrounding Justice Scalia’s successor—whenever he or she ultimately joins the Court—seem so high.
There is a perception that the Supreme Court has the last word on important and controversial issues that divide the public, including civil rights, immigration, gun rights and regulations, and reproductive rights. When the Court speaks, that is the end of debate—or so conventional wisdom has it. As Justice Robert H. Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” But this is not correct. As a historical matter, the Supreme Court has rarely been able to put divisive issues to rest—and as a constitutional matter, there are almost always ways for the other branches of government, or the public, to make new policy even after the Court speaks.
Consider Brown v. Board and Roe v. Wade—perhaps the two most significant cases the Court decided in the 20th century. Brown hardly resolved the debate over racial discrimination, leaving many central issues open. Some states defied the 1954 decision for years—and even today, many schools are racially segregated. It took congressional action in the 1964 Civil Rights Act to address discrimination in employment and public accommodations. As for Roe, from the start, the Court left room for legislators to regulate abortion. Since the Court’s 1992 decision in Planned Parenthood v. Casey, room for legislative action has only increased, and both Congress and state legislatures have eagerly responded by passing a raft of laws aimed at restricting access to abortion. The Court has upheld most of these restrictions.