Over half a year has passed since President Obama nominated Judge Merrick Garland to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. Although Senate Republicans have offered only laughably bad reasons for failing to act on the Garland nomination, it appears that their strategy of intransigence will succeed. Should Hillary Clinton be elected president in November, the Senate might confirm Garland during the lame-duck session before year’s end. But for now, we are stuck with what law professor Garrett Epps has aptly called a “Schrödinger’s Court”—an uncertain superposition of the majority-liberal Court that will likely emerge should Clinton win and the majority-conservative Court that will likely emerge should Donald Trump be elected president.
Indeed, as with all things Trump, even if the GOP nominee should prevail in November, it is not entirely clear what direction the Court would take. In May, Trump released a list of very conservative but otherwise conventional potential Supreme Court nominees. Yet last week, rumors swirled that Trump might nominate venture capitalist Peter Thiel to the Court. Although conservative on some issues, Thiel would likely be something of a wild card. His views are probably best described as libertarian. Meanwhile, Clinton herself recently signaled that she would not be bound by Obama’s choice of Garland. If the vacancy remains when she takes office, she might nominate someone considerably more liberal.
In this state of Heisenbergian uncertainty, it is tempting for those of us who follow the work of the high Court to play a waiting game. And certainly, with respect to some important issues, uncertainty about the outcome of the presidential election and the Senate elections warrants caution. At the same time, however, Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much we expect.
The Relative Unimportance of the Supreme Court
It is common for critics of the Supreme Court to lament its supposedly outsize role in American life. Whether the attack comes from the right or the left, the basic complaint asserts that the Court has arrogated to itself the decision of questions that the Constitution properly leaves to the democratic process. There is some truth to this critique, but it is overstated.
To begin, there are vast swaths of our public life about which the Court has almost nothing to say. The courts do not participate in deciding whether we go to war. The courts do not decide or disturb tax rates or interest rates. They largely defer to Congress and the executive branch on whether and how to regulate the economy. They play at most a marginal role in the setting and implementation of environmental policy.
Moreover, even in areas in which constitutional limits appear to be important, the courts are often secondary actors. Consider two issues that exercise critics, one from the right and the other from the left: same-sex marriage and gun control.
Conservatives both on and off the Court criticized the 2015 ruling in Obergefell v. Hodges—which recognized a constitutional right to same-sex marriage—on the ground that it decided a question that ought to have been left to the state-by-state democratic process. As Chief Justice John Roberts argued in his dissent, by handing the proponents of same-sex marriage a judicial victory, the Court deprived them of “the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause . . . just when the winds of change were freshening at their backs.”
With due respect, the Chief Justice’s complaint fundamentally misunderstands the relation between social and political change on the one hand and changes in judicial doctrine on the other. The Court decided the case the way it did precisely because public opinion had changed. Judges and justices do not crudely decide cases based on public opinion polls, of course, but they are human beings whose values and attitudes tend to move with the values and attitudes of others in the society. As society became more accepting of homosexuality in general and same-sex marriage in particular, the Court came along for the ride. Different personnel on the Court could have affected the timing of the recognition of a right to same-sex marriage, but the ruling itself was probably inevitable.
From the other ideological direction, consider the Supreme Court’s rulings in 2008 and 2010 recognizing an individual constitutional right under the Second and Fourteenth Amendments to private possession of firearms for self-defense. Many liberals complain that these rulings invoked a tendentious law-office history in order to stymie effective gun control. What they overlook is that, as law professor David Cole argues in his recent book Engines of Liberty, the Court’s gun rights decisions parallel its same-sex marriage ruling: In both instances, the judicial rulings mostly followed and consolidated public attitudes. Notably, the Supreme Court cases play only a minor role in limiting gun control in America. Many states now protect gun possession far beyond anything the Court’s rulings require.
None of this is to say that the Supreme Court is wholly irrelevant. Even with respect to guns, it is quite possible that the Court’s jurisprudence has led to additional deaths. The 2010 case, after all, invalidated a strict gun control measure in Chicago, where the murder rate has recently spiked. It is possible that some of that blood is on the Supreme Court’s hands.
But only a small fraction of the blood that has been spilled. As with most aspects of American life, the Supreme Court did not create high rates of gun violence or gun ownership. Its contribution to the latter is at most small.
The Ideologically Uncertain Future
Some areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus. Robust protection for freedom of speech is a prominent and, in some sense, surprising example. It is surprising because, until relatively recently, the most notable proclamations from the Court about the importance of free speech came in early-twentieth-century dissents by Justices Louis Brandeis and Oliver Wendell Holmes, Jr. Even in the 1960s, when the Court began to provide serious protection for dissenters, free speech was controversial.
But no longer. Today, Democratic and Republican appointees alike endorse the fundamental outline of free speech jurisprudence, which is more protective than in any other constitutional democracy. Should our next president threaten freedom of speech—by, say, attempting to “open up” the libel laws or by targeting political opponents for law enforcement, as Donald Trump has threatened to do—we can expect resistance from a solid majority of the Court.
Other aspects of the Court’s jurisprudence over the next generation are uncertain, but not because we don’t know who will sit on the Court. We don’t know what new issues will arise or how or even whether they will break ideologically.
The experience of the 1940s through 1960s is instructive. By the time he died, President Franklin D. Roosevelt had appointed seven of the then-sitting Supreme Court justices, some of whom would remain on the Court for decades. All of those justices were selected because they were expected to uphold the New Deal and other regulations of the economy—and they did. However, over time, new issues came to dominate the Court’s agenda, especially civil rights and civil liberties. Justices who had been ideological comrades on economic regulation found themselves on opposite sides of the new controversies.
New issues could likewise scramble familiar patterns. New surveillance technology could pit traditional conservatives willing to defer to government against libertarian conservatives. Advances in artificial intelligence could give rise to legal claims on behalf of machines. Or, as I argued in an earlier column, long before robots have rights, we could see successful claims made on behalf of non-human animals.
No one should assume that they know where the justices will necessarily stand on such new questions. Views about animals do not have a clear ideological valence. Of the justices now on the Court, Samuel Alito seems the most likely to find merit in legal protection for animals, based on his solo dissent in the 2010 case of United States v. Stevens, where he sympathetically and accurately described “the animals used in crush videos [as] living creatures that experience excruciating pain.” It is anybody’s guess which justice would be most sympathetic to legal claims on behalf of robots.
To be clear, I am not arguing that who appoints the next several justices to the Supreme Court is an unimportant question. It will likely matter a great deal on closely contested issues like abortion, affirmative action, federalism, and the scope of religious rights to opt out of general laws. No one who cares about these and other issues should discount the stakes for the Court in this election.
But we should also avoid two mistakes that can accompany thinking about the uncertain future given the Court’s current eight-justice configuration. One is thinking that everything is up for grabs. It isn’t. The Court still decides many more cases unanimously than by a single vote.
The other mistake runs in the other direction. It assumes that future divisions among the justices will track current ideological divisions. Some will, but others won’t. Even when we know who will appoint justices—indeed, even when we know who those justices are—we do not necessarily know the path of future decisions. In some sense, every Court is a Schrödinger’s Court.