POLITICS BY OTHER MEANS
Justice Antonin Scalia’s death has me thinking about South Africa. (Doesn’t everyone think about South Africa when a Supreme Court justice dies?) More specifically, as someone who works on both legal and political issues in developing countries, I’m constantly exposed to the interface between the two. And one of the best studies of that interface is UCLA law professor Richard Abel’s book about using the courts to fight South African apartheid three decades ago.
Without doing full justice (so to speak) to his thesis, suffice to say that his book’s title encapsulates what Abel ably argues: law is Politics by Other Means. Law was used in South Africa as a tool of repression. Nevertheless, human rights lawyers’ somewhat successful litigation there was an element of the much larger battle to undermine the country’s racist government. Law was part of politics.
Which brings me back to Scalia. My South Africa reference aside, the point I’ll make here is not mainly about race, though that’s part of the political equation. Rather, his death opens the door to explore what’s at stake in replacing a Supreme Court justice. As the debate plays out in the 2016 campaign, Americans are in for an education.
Scalia’s death has triggered a hypocritical political scrum. Progressives argue that (Republican) Senate Majority Leader Mitch McConnell should heed the words of his own 1970 law review article, and let President Obama appoint whom he pleases. Conservatives conversely claim that a 2007 speech by Democratic Senator Chuck Schumer proves that blocking President Obama’s eventual nominee would be legitimate. In these and many other ways, the two sides assert that Important Principles are at stake.
Cry me a river on both counts. Let’s face it: This battle is not about conflicting principles. It’s not about the law or the Constitution. It’s not about whether the Senate should at least give Obama’s nominee a hearing, contrary to McConnell’s vow to the contrary. It’s not about whether we should wait a year or more for a Scalia’s replacement to take office.
It’s about power.
NO FALSE EQUIVALENCE
Don’t get me wrong. I’m not saying that important principles don’t favor Obama. And I’m not saying that principles should not be proclaimed. In fact, doing so is part of the power struggle at play, since they affect the public’s perception of the battle.
Nor am I arguing for a false equivalence between Republicans and Democrats here. In ways that reach at least as far back as Bill Clinton’s impeachment, Republicans (abetted and egged on by right-wing media) have done far more than Democrats to throw cooperative, informal norms of governance out the door.
After all, Mitch McConnell did state at the start of Obama’s presidency that his priority was to see Obama fail. And who can forget the House Republicans’ threat to default on the nation’s debts?
Such efforts even extended to the courts themselves. Republicans have blocked almost all of Obama’s federal appellate court appointees since taking control of the Senate last year. And Scalia himself arguably did more than any jurist to politicize the Supreme Court’s place in the twenty-first century.
Nonetheless, what if the roles were reversed over the Obama nomination? What if George W. Bush were still in office, with a Democratic Senate majority, and was about to appoint another would-be Scalia? Or even another would-be Anthony Kennedy, the Court’s swing vote, who usually but not always swings to the Right?
Many of the same people arguing to let Obama decide would turn on their rhetorical heels. They would say that, with so much at stake, the next President should select who gets nominated. They would assert that the Supreme Court is something the country should vote on in 2016. I certainly would.
SO WHAT’S AT STAKE?
Yes, there are important principles at issue here. And there’s politics, and power.
All of this boils down to control of a non-elected body that, for better or worse, makes most of our most important public policy decisions.
So what’s at stake? It’s how America in the years and even decades ahead handles health care, climate change, immigration, voting rights, Wall Street, and a slew of other issues impacting our democracy and economy.
SO WHAT’S NEW?
Many might ask “What’s new?” about discussing the Supreme Court in political terms. We all know that the Court is a political body, don’t we?
No, we don’t.
By and large, presidents and their nominees steer clear of discussing the nominees’ political and policy views. Senate confirmation hearings typically probe a nominee’s qualifications as a jurist rather than their politics, even though politics is the elephant in the room.
Our national narrative puts the Supreme Court at the apex of our society’s supposedly apolitical rule of law. Elite cynicism aside, many folks still buy into that story. In fact, that myth fuels the Court’s legitimacy.
And as with this current controversy, we fall back on matters of principle rather than politics in debating Supreme Court appointments and decisions.
Supreme Court justices probably tell themselves that they are simply interpreting the Constitution, legislation, regulations, and precedents, to the exclusion of articulating their own political and policy preferences. As Stanford law professor John Donohue wrote in commenting on Scalia’s judicial philosophy, “the capacity of ideology to foster self-delusion cannot be underestimated.”
So what’s new? By in effect electing a Supreme Court justice and selecting the Court’s direction, the 2016 presidential (and senatorial) campaign will to some extent strip away the Court’s veneer of law. It will expose what’s really at play – a whole host of momentous political and policy decisions.
Now, whether stripping away that veneer is a good thing is another matter. But the irony of Scalia’s death is that it illuminates a reality that he both denied and exemplified in his life: law at the level of the Supreme Court is often politics by other means.
This is something that South Africa and much of the developing world already know. As for America, welcome to the real world.