U.S. Supreme Court nominee and chief judge of the United States Court of Appeals for the District of Columbia Circuit Merrick Garland (R) and Sen. Jeff Merkley (D-OR) greet one another before meeting in the Hart Senate Office Building on Capitol Hill May 19, 2016 in Washington, DC.
Photograph by Chip Somodevilla via Getty Images
By Mark Kende
June 22, 2016

Any day now, the U.S. Supreme Court is supposed to rule on three monumental constitutional cases involving affirmative action, abortion, and immigration, which could affect millions of people. But the Supreme Court may not really be able to decide these cases, as it only has eight justices after Justice Antonin Scalia’s death. And Chuck Grassley, a U.S. senator from Iowa, has been undermining separation of powers and obstructing American democracy for over 80 days. By refusing to hold hearings on President Obama’s nominee to a vacant U.S. Supreme Court seat, Senator Grassley has essentially shut down part of the government, diminishing the judiciary and the president at the same time. He should reverse course.

Even some members of his Republican Party think so, such as Ken Starr, as do many Americans of both parties, according to recent polls.

Senator Grassley, a virtually life-long politician and non-lawyer, is chairman of the U.S. Senate Judiciary Committee. He’s been steadfast in his refusal to hold hearings on Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to the Supreme Court. The D.C. Circuit is often referred to as the second most important court in the land. Even the Republican-appointed U.S. Supreme Court Chief Justice John Roberts has complemented Garland’s abilities.

The problem is that Senator Grassley is ignoring a federal law, 28 U.S.C. Sec. 1, that specifies the U.S. Supreme Court shall have nine members. With just eight members, the Court cannot resolve certain controversial cases. It can split 4-4, which means that there is no uniform rule of law. The lower court ruling is then maintained for one region of the nation. Thus, Alabama could effectively abrogate a constitutional right that New York recognizes. The Supreme Court could even remain enfeebled this way for two terms. Another option is that the Court could postpone deciding the case. Or, as in Zubik v. Burwell this term, the Court could refuse to decide (since it cannot break the tie) and issue a brief per curiam opinion vacating the lower court decisions and requesting that the parties work it out. Since Zubik involves multiple lawsuits about how religious organizations can exempt themselves from the Affordable Care Act’s contraception mandate, this per curiam could also create confusion.

In the early 19th century, U.S. Supreme Court Chief Justice John Marshall authored the famous decision in Marbury v. Madison, which established the power of courts to review the constitutionality of statutes. And in another famous case, McCullough v. Maryland, the Court upheld the constitutionality of a national bank. Both of these cases emphasized the importance of national uniformity regarding the U.S. Constitution’s meaning. Senator Grassley is infringing on these two century-old precedents regarding the judiciary’s powers.

In addition, he has undermined democracy by not letting the president carry out his constitutional appointment obligation. Millions of Americans elected President Obama twice, for four-year terms. The people voted their opinions. But the senator has missed the message, as he is nullifying one of the president’s key constitutional powers during his last year in office.

Senator Grassley and other Republicans argue that the U.S. Senate has the power to give its “advice and consent” regarding nominees. Yet the senator’s refusal to hold any hearings on the nomination does not meet that requirement.

Senator Grassley has also said the country should not select a new justice in a polarizing presidential election year. But numerous Supreme Court nominees have been treated otherwise. For example, a Democratic Congress in 1988 held hearings and confirmed Republican Supreme Court nominee Justice Anthony Kennedy.

 

Unfortunately, Senator Grassley is following close to the example of Democratic President Franklin Roosevelt who tried to manipulate the Court’s numbers for political reasons. Congress then rejected this effort, and it was probably Roosevelt’s most infamous act. Senator Grassley is not doing much better.

Courts are fragile, as they depend on the good faith of the other branches of government to fund them and to implement their decisions. In other nations, the decline of independent courts has historically been accompanied by the rise of autocracy. Hungary and Poland are current examples. This could happen here.

It is troubling to see Donald Trump’s intemperate criticisms of judges based on their ethnicity and religion. Even Senator Grassley gave a speech excoriating Chief Justice Roberts this year, presumably because the Justice voted to uphold the individual mandate part of President Obama’s Affordable Care Act. Americans should unite to support separation of powers, restore democracy, and insist on Senator Grassley’s lifting of his illegal partial shutdown of the U.S. Supreme Court and the presidency. The Senate Judiciary Committee should hold hearings as soon as possible on the Garland nomination.

Mark Kende is the director of the Drake University Constitutional Law Center, and the James Madison Chair Professor in Constitutional Law at Drake Law School.

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