Our decisions could reverberate for decades
Since Justice Antonin Scalia’s passing in February, the Senate has refused to fulfill its constitutional duty to hold a confirmation hearing for Supreme Court nominee Merrick Garland. This wild election cycle may have distracted voters from the vacancy, but the role and composition of the Court should be at the forefront of voters’ minds as Election Day approaches.
Hamstrung and diminished, the Court has struggled to resolve important questions facing our nation. With a series of 4-4 deadlocks, narrow rulings and forced compromises, the Court has been unable to provide needed guidance on tough issues like immigration, the power of unions, public corruption, and religious objections to contraception and LGBT equality.
One possibility that could spell nightmare for Americans across the political spectrum is a repeat of Bush v. Gore, with a closely disputed election coming before the Court. A Court again dividing along party lines might have to let some lower court’s resolution of the presidential election stand. Unfortunate as it seemed for nine unelected justices to pick our 43rd president by a 5-4 vote, for a lower court to pick our 45th would be a prescription for prolonged paralysis or utter chaos.
Even without a disputed election, voters’ decisions in both the presidential and Senate races this November will reverberate for decades. If Hillary Clinton wins but Republicans retain control of the Senate, an obstructionist Senate could extend the current confirmation battle, whatever the prior assurances to the contrary. If Donald Trump wins, he could nominate extreme conservatives, as he has promised to do, who would erode hard-fought victories for the rights of women and racial and sexual minorities. Worse yet, Trump could borrow from the Senate’s playbook and refuse to fill vacancies altogether, leaving issues vital to our future to be settled by a weakened eight-member—or, if another justice were to depart or die—seven-member Court, one likely controlled by Republican appointees.
Next month, voters decide who will nominate and confirm future justices. They will thereby shape the role of the Court in our constitutional system and the meaning of our Constitution’s ambiguous terms. Re-electing the Senators who have led the unprecedented abdication of that institution’s constitutional responsibility could embolden them to continue the confirmation battle, even if Clinton wins.
Trump’s election in particular would erode vital protections for vulnerable groups in our society—or worse, result in the further weakening of the Court, with the many dangers that would entail. The genius of our Constitution was its separation of powers, but the relationship between the branches consists of both checks and responsibilities. This election day, voters determine the future of that vision.
Tribe is a professor of constitutional law at Harvard Law School.
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