Behind the Supreme Court Standoff

The stalemate between the U.S. Senate and President Barack Obama over the Supreme Court nomination of Merrick Garland is without precedent. And while the standoff dominated the news cycle in March, there’s much more to the story, says Justin Crowe ’03, associate professor of political science and author of Building the Judiciary: Law, Courts and the Politics of Institutional Development (Princeton University Press, 2007). Here are some of his insights.

We’ve been building to this moment for some time. “When Reagan nominated the conservative Robert Bork to the court, the Democratically controlled Senate blocked him 58-42,” Crowe says of the 1987 appointment that became a pivotal moment in the development of recent Supreme Court politics. “Since then we’ve seen more justices strategically timing their retirements, a move toward appointing younger and younger nominees and the level of obstruction rising.”

March 2017 is the soonest a new justice will be confirmed. “That’s how long it will take for the next president to nominate someone and for hearings to be completed,” Crowe says.

Until then, an evenly split court will make judicial matters complicated. When a case results in a tie, the lower court’s decision stands—but only in the jurisdiction in which the case was tried; the ruling does not establish any national precedent. “This presents a problem when two circuits hear similar cases but rule differently on them,” Crowe says. “We will undoubtedly see issues from cases that end in a tie this year percolate up from another circuit when we have a ninth justice.”

Still, nine is not a magic number. Crowe says the number of justices on the Supreme Court has ranged from as few as five to as many as 10 (for a brief time in the 1860s). The number is set by statute, not by the Constitution.

And Garland himself is a complicated nominee. “He’s not as liberal as many expected for an Obama nominee,” Crowe says. “But if the Senate says Garland is too liberal, they can argue they won’t accept anyone more liberal than him in the future. At the same time, there’s an argument that Obama should have nominated the most liberal justice he could find”—in part to mobilize voters. “A nomination like Sri Srinivasan of the D.C. Circuit, for example, might have mobilized the Asian-American vote. Furthermore, voters who don’t tend to consider the Supreme Court a crucial campaign issue might have taken up this cause and voted some of the obstructionists in the Senate out of office.”