The Constitution does not have much to say about who gets to sit on the Supreme Court.
In Article III, Section 1, we are told: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
It goes on to say that judges will serve “in good behavior” and Congress can’t cut their pay.
There’s a little more information in Article II, Section 2, which says: The president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
That’s it. That sentence and a half is all the Founders gave us to work with.
And everything we’ve become used to seeing when we install judges who can overrule the elected government for as long as they live are just norms. That means everything, from televised hearings before the Judiciary Committee to a roll-call vote in the Senate are, like the photo op with the nominee’s family, unwritten rules or traditions.
So, Senate Majority Leader Mitch McConnell and President Trump have a point when they say that they are within their rights to use a partisan process to ram through a Supreme Court nomination just weeks before a national election they appear to be losing.
There’s nothing in the Constitution that says they can’t do it. But they are violating some norms, including one that McConnell invented just four years ago, claiming that a president should not be allowed to nominate a justice in an election year.
You can’t go to jail for violating an unwritten rule, but there are still consequences, which could come as soon as Election Day.
McConnell seems to be OK with that. Conservative judges can do things that elected officials can’t. Republicans didn’t have the votes in the Senate to overturn Obamacare three years ago, but they may have the votes they need on the Supreme Court, which takes up the case a week after Election Day. They could never pass a constitutional amendment that eliminate’s a woman’s right to choose to terminate a pregnancy, but you only need five votes on the Supreme Court to overturn Roe v. Wade.
Losing an election is not the only possible consequence, however. The Constitution does not say how many judges need to serve on the Supreme Court. We’re used to nine, but it could be 100.
It doesn’t really say that they have to serve for life, either. Those are just norms.
If a Congress and a president wanted to change the number of justices on the Supreme Court or put limits on their terms, they could, although they would probably run into trouble in the Senate, where the rules allow a minority to block legislative action.
But the filibuster rule is not in the Constitution, either. It’s just a rule, one that the majority of the Senate can change any time it wants. It’s a norm.
We live in a time of norm busting, and we are finding out how easily they fall if people in power don’t want to restrain themselves. It didn’t start with Trump, but he has taken it to a new level.
Last week, Trump refused to commit to a peaceful transfer of power if he were to lose the election.
Again, it’s just a norm.
The Constitution doesn’t say the losing candidate has to call the winner after the votes have been counted and concede. It doesn’t say the outgoing president has to welcome the new president at the White House on inauguration morning so they can drive together to the Capital. It doesn’t say that old president has to sit on the platform and politely listen to the speech.
But the fact that presidents have been doing that, or something like it, since the second president took office is a pillar of our democracy. It’s why we don’t need to have a revolution every time the people want to change administrations.
It might look like they are going through the motions, but these are not empty rituals. They show that everyone is acting in good faith, even if they don’t feel like it. These traditions are visible signs that the system is working, which is important because most of the time the system functions out of our sight.
Maybe these norms were just for show. Maybe we’ve come to a point where everyone understands that the Supreme Court is just another political branch of government that allows the party in power to exert influence outside the limits of electoral politics.
Maybe we’ll find that we never really needed those norms. Or maybe we’ll find out that they were holding up the roof.
Either way, we’ll find out. Because once they’re gone, they’re gone for good.
Send questions/comments to the editors.
