Filibusters Will Not Prevent Trump from Filling the Scalia Seat

There is much to be said in favor of a supermajority rule for confirming Supreme Court Justices. As Mike Rappaport and I argue in the Judicial Filibuster, the Median Senator and the Countermajoritarian Difficulty, the result of such a rule will be more moderate justices, less likely to go to any extremes. At a more theoretical level, a supermajority rule will temper the countermajoritarian difficulty — the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches.   Judicial review under this confirmation rule would be more likely to impose the long-term limitations on popular government that most people themselves desire.

The filibuster, however, is a weak supermajority rule, because a partisan majority of  Senators can change it any time through the so-called nuclear option. Despite my preference for a supermajority confirmation rule, the filibuster is unlikely to survive, if Senator Chuck Schumer has implied, the Democrats are inclined to filibuster Trump’s Supreme Court nominees. Noah Feldman is thus wrong in claiming that it is plausible that the Supreme Court will continue to operate with only eight members.

First, the filibuster for Supreme Court confirmations has been gravely weakened by the previous Democratic controlled Senate’s elimination of the filibuster for other nominations, both for the executive branch and for the lower federal courts.

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Noah Feldman on Sebelius and Same Sex Marriage

Noah Feldman is a Harvard Law Professor and the author of a popular book on the Supreme Court, but his recent column is extremely problematic for two reasons.

First, Feldman makes the following claim about Supreme Court caselaw:

In 2005, in Gonzales v. Raich, the Supreme Court held that Congress could make it a crime to use medical marijuana even when the drug was home-grown by the user, was not sold, and did not move in interstate commerce. The key precedent was the 1942 case of Wickard v. Filburn, which presented almost the same facts and reached the same conclusion regarding the production of wheat for home use. (Wickard was also the central case cited by Chief Justice John Roberts when he cast the deciding vote to uphold the Affordable Care Act last June. As much as conservative justices might regret Raich, there is no way Roberts would undercut his controversial vote to accommodate potheads.)

But as Mike Ramsey points out, this claim in the parentheses is clearly mistaken:

Look at that parenthetical closely.  Surely anyone who’s paying attention knows that (a) Wickard was a commerce clause case; (b) in the health care case (NFIB v. Sebelius) Chief Justice Roberts voted to uphold the Affordable Care Act’s individual mandate under the federal government’s taxing power, not the commerce power; and (c) Roberts joined Justices Scalia, Kennedy, Thomas and Alito to say that Congress did not have power to enact the individual mandate under the commerce clause.

A quick look at Sebelius confirms that, in fact, Roberts (naturally) did not even cite Wickard (much less make it the “central case cited”) in the section of his opinion upholding the Affordable Care Act under the taxing power (Section III.B).  Roberts did cite and discuss Wickard in his commerce clause analysis (Section III.A), but that was to distinguish it and to refuse to uphold the Act on the strength of Wickard.  In sum, Professor Feldman’s suggestion that Roberts upheld the Affordable Care Act under Wickard is flatly wrong.

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