I am, personally, ecstatic to see marriage equality spread across the United States. My marriage means more to me than I can properly express, and I am overjoyed that so many same-sex couples will soon be able to join one of humanity's most beautiful institutions.
Antonin Scalia is not overjoyed. He begins his dissent in the most apocalyptic manner possible: "I write separately to call attention to this Court’s threat to American democracy."
Scalia quickly dismisses the topic of marriage. His dissent, he says, is not about the issue itself, but about the Court itself — and the dangers it poses: "The substance of today’s decree is not of immense personal importance to me … It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."
This is, as is often true with Scalia, a bit overheated. The American people could change the Constitution if they wanted to see same-sex marriage barred — and conservatives, it's worth noting, tried and failed to do exactly that a decade ago. Hell, Americans could amend the Constitution to dissolve the Supreme Court is they so chose. They are not being ruled by the Court so much as pushed by it.
But the immense power of nine robed elders is a discomfiting fact about American democracy — and all the more so in an age when Congress is typically too gridlocked to respond. It is common today for the Court to make sweeping decisions with the logic that Congress can always revisit the issue, even though, in this polarized era, it is rarely possible for Congress to successfully revisit these issues. And so it is the Court's judgment that stands.
And while Scalia's warnings are eloquent, his actions routinely prove his point rather than heed it. On Thursday, for instance, Scalia's furious dissent lamented his inability to rip health insurance subsidies away from 6.4 million people because he had decided to forget how to read words in context. And in 2000, of course, Scalia chose to join a 5-4 majority handing the presidential election to George W. Bush, rather than permitting a full recount to go forward in Florida.
But that is exactly why it's worth taking Scalia's warning seriously. As much as Scalia recognizes the dangers of the Court's powers, even he is unable to resist using them when it suits his agenda. Today, he is in the minority, and so he feels and laments his powerlessness; tomorrow, he may be in the majority, and the rest of us will feel our powerlessness. The authority liberals are cheering this morning may be the same they rue in a decade. Indeed, plenty of left-leaning legal scholars, notably Harvard Law School’s Mark Tushnet, have grown broadly concerned about judicial review and its ability to usurp democratic processes.
The Supreme Court is unrepresentative, unaccountable, and unpredictable. Its vacancies are dictated by the mortality and partisan considerations of its members, and its composition is an accident of which party happened to hold the presidency at the moment when a justice's age, illness, and frailty became undeniable.
The result is that Supreme Court appointments are not distributed evenly. Bill Clinton, in his eight years as president, filled two vacancies on the Supreme Court — the same number as George H. W. Bush in his four years as president. Eisenhower filled five vacancies in his two terms, while Reagan filled three, and George W. Bush, like Clinton, filled two. Gerald Ford was in office for only two and a half years and appointed someone to the bench; Jimmy Carter was in office for four years and got no appointments.
There have been efforts to change this. During the 2012 presidential campaign, Texas Gov. Rick Perry proposed a more regular approach to Supreme Court succession: "A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year." It's a good idea, though Perry obviously didn't get anywhere near implementing it.
But in its absence, and with a Supreme Court divided 5-4, every election has the possibility to be among the most important in recent American history. This has, in turn, led to perverse incentives within the political process: Political parties are terrified of appointing a justice who later betrays them — either through ideology or simply through mortality — and so they vet candidates harder for political fit, and constrict their selection to younger candidates who are likely to hold their seat for many decades.
I do not have an answer to this problem. The Supreme Court, for all its issues, plays a critical role in American democracy, and its absence is a far scarier prospect than its presence. But that doesn't mean its power shouldn't worry us, at least a bit. Scalia is both right about that, and an example of it.
