The empty chair: Polarization and the end of the Supreme Court

A Scalia replacement would be instrumental in deciding the fate of an individual’s right to keep and bear arms, in determining the boundaries of religious freedom, the extent of LGBT and abortion rights, the nature of political speech and campaign finance, the strength of labor unions, the extent of congressional delegation to executive bureaucracies that regulate the environment, the workplace, private property, the schools, and much more. The power of the appointment can be seen in the reaction to the immigration decision: It was not only the president’s authority that was in question but also the legal status of millions of illegal immigrants. With so much at stake, it seems reasonable to conclude that his replacement will take the bench only under conditions of unified government.

Especially because the price of obstruction is so low: Refusing to confirm Merrick Garland is not the same as shutting down the government before Obamacare goes into effect. For one thing, the operations of the Court are not affected in a way that can be easily portrayed on the nightly news. There may be more ties allowing lower-court rulings to stand. But this outcome does not make voters’ blood boil like closing national parks does. It’s not the fate of Garland that will drive voters this November but the fear of losing their rights, their possessions, their entitlements, their country, their families.

Ironic: Throughout his career Justice Scalia warned against an overreaching judiciary that replaced democratic judgments with its own. Because his warnings were not heeded, the Court grew into a leviathan that touches all aspects of American life, determines where self-government ends and rule by bureaucrats begins. Yet the prestige of the institution—just how big it had become, how much control of it mattered—could not be revealed fully until Scalia died. And now that he’s gone, it’s possible, not likely but possible, that the refusal to confirm his successor inadvertently will limit not only the Supreme Court’s numbers but also its power.

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