In today’s political environment, seeking solutions outside of our partisan proclivities is a challenge. This is especially true when such solutions require us to actively undermine those proclivities. Despite this difficulty, sometimes moments of such importance arise that we must grit our teeth and set partisanship aside for the sake of our country. This year is one of those moments, and we all have the chance to take action and ensure the basic functioning of the Supreme Court.
Regardless of your political views, the growing potential for more 4-4 decisions handed down by the Supreme Court should be worrying. Procedurally, a tie upholds the previous ruling issued by a lower court. However, if two lower courts disagree and the Supreme Court ties on the issue, both lower court rulings are upheld. Practically, this could lead to laws and executive orders differing from circuit to circuit, and often state to state. The Supreme Court would cease to be the final authority on the Constitution.
While the American people have become inured to our defective Congress, assuming a broken court system would be similarly tolerable is a mistake. Over time, the country could devolve into a patchwork of fragmented laws that would significantly erode the federal government’s ability to actually govern.
To illustrate this, it’s useful to examine the Supreme Court’s recent ruling on same-sex marriage. The case was brought before the Supreme Court because two Circuit Courts disagreed about whether the Constitution guaranteed same-sex couples the right to marry. Had the Supreme Court ended up with a 4-4 tie, it would have meant both of the Circuit Courts’ interpretations were correct. This outcome would have essentially left different parts of the United States operating under different Constitutions.
Whatever issues you are passionate about, the courts are probably playing a role in shaping them. Over the past few years, there have been circuit splits on topics such as access to abortion, the Affordable Care Act, the Second Amendment right to bear arms, and the Fourth Amendment right against unreasonable search and seizure. Had all these cases come before a broken Supreme Court, the resulting series of ties would have created legislative and legal bedlam.
Many Senate Republicans, including Wisconsin’s Ron Johnson, have refused to even consider President Obama’s Supreme Court nominee. They are clearly hoping a Republican takes the White House in November, allowing them to appoint a conservative instead. The problem is that Justice Scalia passed away in February and our next president won’t be inaugurated until January. Supreme Court appointments are months long endeavors, so even in Johnson’s best case scenario, the Supreme Court will have been broken for over a year. That will likely be extended indefinitely if another Democrat is elected president.
Given the high stakes of Supreme Court appointments and the decades-long hold they have on our political system, without public outcry, this obstruction might seem worth the risk. If Americans do not push back against this indefensible behavior, it will continue to escalate into even more instances where party loyalty is prioritized over loyalty to the American people and our Constitution. This is why we cannot sit back and allow Republican Senators to blatantly obstruct an appointment to the Supreme Court.
We deserve more from our government than partisan power grabs. Whether you identify as a conservative, progressive, or something in between, you have the chance to make your voice heard and urge your senators to do the right thing – ensure the Supreme Court continues to work for all of us.