There is a certain amount of angst over who will be the next U.S. Supreme Court nominee after the death of Antonin Scalia (may he RIP). A lot of the concern has to do with who President Barack Obama will pick (Politico has a list here) and whether the U.S. Senate will try to block it, as conservatives are pushing to happen, or wait until the next president is elected. Senate Majority Leader Mitch McConnell seems more in favor of running out the clock, but with McConnell you never know. One thing Linda Hirshman suggested at The Washington Post is running out the clock will give Obama the victory anyway because of how Supreme Court votes are tallied.

But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it.

Hirshman does point out the 4-4 split will probably help conservatives on Texas’ abortion law and Obama’s immigration executive order because of the 5th Circuit’s more conservative bent. But a lot of the judicial theater can be traced back to the fact the federal government has far too often broken its own “separation of powers” rules, and everyone seems a-okay with it. Here’s how historian Harlow Unger portrays the federal government’s attempt to ignore the Constitution in his biography on Chief Justice John Marshall:

President George Washington staged the first such coup in 1789, his first year in office, by sending Treasury Secretary [ Alexander ] Hamilton to borrow and spend funds without an appropriation or authorization from the House of Representatives as required by the Constitution…Congress staged its share of coups as well. In 1798 it scrapped the Bill of Rights with passage of the Alien and Sedition Acts of crush opposition to and criticism of the government. Later, with President [ Thomas ] Jefferson’s encouragement and consent, Congress passed the Judiciary Act of 1802, removing opposition-party judges in violation of Article III, Section 1, that “judges…shall hold their offices during good behavior.”

So Marshall did his own move around the Constitution by creating judicial review during the Marbury v. Madison case:

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

One thing which is quite interesting is Unger believes Marshall’s decision is a good thing because it could keep the government from breaking the Constitution (emphasis mine):

After a decade of unconstitutional assumptions of power by the executive and legislative branches Marbury v. Madision was the first assertion of extraconstitutional powers by the judiciary. Assumption of the right of judicial review and the power to void unconstitutional laws enacted by Congress and signed by the President gave the Supreme Court equal power with Congress and the President and, indeed, the power to check the actions of both the legislative and executive branches of government. Since Marbury the Supreme Court has voided about 200 federal laws as unconstitutional, but in doing so, it often incurred harsh criticism for overstepping constitutional boundaries into legislation.

Marshall and Unger have a point, but it also spawned the political war over the Supreme Court. It’s why Ramesh Ponnuru complained in National Review the GOP should fight against Obama being able to nominate Scalia’s replacement because justices aren’t known for “neutrally interpreting a Constitution that does not grant them significant authority to decide nearly as many policy questions as they do…” It’s why the creation of judicial review also started the war between judicial restraint vs. judicial activism and how judges interpret the Constitution. One thing Damon Root’s book Overruled points out is judicial restraint was actually something progressives like Oliver Wendell Holmes, Felix Frankfurter, and Theodore (and Franklin) Roosevelt supported, while the more conservative justices like Pierce Butler and Willis Van Devanter were judicial activists. This is why FDR attempted court-packing so he could get more judges who would support his unconstitutional New Deal legislation against free markets. But judicial restraint later became a tool of conservative judges on certain issues and something Robert Bork tried to convince the Senate he’d be a champion of (via Root’s Overruled):

Indeed, during his confirmation hearings, Bork took pains to remind his Democratic interrogators “that there was a time when the word ‘liberty’ in the Fourteenth Amendment was used by judges to strike down social reform legislation.” Those conservative and libertarian judges, Bork argued, “were wrong because they were using a concept to reach resulted they liked, and the concept did not confine them, and they should not have been using that concept.”

This entire debate over who should replace Scalia wouldn’t be going on if the government (federal, state, and local) were willing to follow the Constitution and not get involved in issues it shouldn’t get involved in. It’s an example of long, hard battle against the leviathan of government, and how it tries to seep its way into all of our lives. This is why it’s so important to elect politicians at every level who will take up their slings and arrows against big government. This is why conservatives and libertarians have to thoroughly vet candidates who claim to be adherents of the Constitution and hold them accountable when they go astray. This way judicial review won’t be an issue and the theater of who should replace a Supreme Court justice will (finally) die on the vine.