Supreme Court Shenanigans !!!

In the United States, the Supreme Court is the highest court, given the final say on what laws really mean, and if they're cool with the Constitution. Well, this power was not given given, but taken. Back in the day, the Supreme Court ruled it is the duty of the court to say what the Law is. And everyone went with it. You might think the Law would say what the Law is, but even the best, most well-intentioned legislators cannot write a law that covers every possible edge case for the rest of time, nor be able to consider how this law will interact with every other law. So someone's got to make the final call on the Law and the Supreme Court is that someone. This makes the Supreme Court supremely important, constitutionally and politically.

While Congress gets to make the laws and the president gets to enforce the laws. It's the nine court justices that both referee and adjust the laws. So if you're playing the game for pure maximum political advantage, you want to influence the refs. Now, to be above this influence, each justice serves for life. So appointing a new one is an irreversible decision, that will affect decades of law. Only when a justice resigns or dies does a seat open. Filling that seat starts with the president, who the Constitution gives the sole, absolute power to select a nominee, with no restrictions whatsoever on who the nominee can be. No prior judicial experience required. But, particularly in modern history, presidents tend to select federal judges with long and clear case rulings, hoping the past predicts the future.

[Mr. President] No surprises, please. This is my chance to influence government long after I leave.

[Grey] Of course, the whole point of justices serving for life is so, once in, they are politically beholden to no one and don't have to strategically plan how their current rulings will affect their next career move. Getting on the Supreme Court is the final move. Now, while the president can nominate whoever they want, Congress must approve the nominee. Well, not the whole Congress. The lower House of Representatives with its hundreds of members gets to do... nothing. It's just the exclusive upper house with its two senators per state that historically decides with a two-thirds majority.

Before the Senate votes, it puts the nominee in front of the Judiciary Committee, which conducts the world's most arduous job interview over weeks, asking the nominee just about everything in their lives they've ever done and their opinions on everything that could ever happen. All broadcast for the country to watch. Which is why nominees play their cards close to their chest. Answering questions about what they would do in theoretical cases with:

[Nominee] I couldn't possibly comment on a case not before me, that would be unbecoming of a future justice.

[Grey] Meanwhile, behind the scenes, the FBI investigates everything private about the nominee's life they might not wish to discuss before the cameras. When the Judiciary Committee inquisition is over, the whole Senate then gets to vote yay or nay. Nay, and the nominee is rejected and the president must pick someone new to start over. But yay! And the Supreme Court has a new justice to help uphold the Constitution.

[delightedly] Yay! All done. Thank goodness such a vital process doesn't have any asterisks or political shenanigans…

[sadly] Ohhhh Alright. Let's do this. First are the normal political shenanigans around election dates. While the president can nominate as soon as a seat opens, there's no timeline for when the Senate has to vote on the nominee, and so can just… not. Running out the clock, gambling on the next election getting a president of a different color. On the flip side, there's no minimum time either, so an aligned president and Senate, with an unfavorable election looming, can work together very quickly to appoint a new justice.

These are normal election-time shenanigans. But shenanigans beget shenanigans. So the Senate doesn't work all year round, taking seasonal recesses, often in the summer and in the winter. Or, if it's pandemic season, it's recess time too. If a Supreme Court seat opens while the Senate is on recess, according to the Constitution, the president gets to instantly appoint someone straight into the Court who gets to stay there through the current Senate recess and the next Senate session. This is a recess appointment. And boy does the Senate not like them. Even though the appointed recess justice is temporary, they're still a real justice, getting to vote on cases before the Court, without Senate approval.

And recess appointments aren't just for the Supreme Court, but all sorts of government jobs. The constitutional idea being that legislating the government isn't full-time work. The Senate, for the first 140 years of its existence, spent half or more of each year in recess. But executing the government is a full-time job. Stuff's got to get done even if the Senate is on vacation, so the Constitution gave the president the ability to temporarily fill vital positions, for a minimum length of time, even when the Senate's not around. And the Senate will get its say later when they're back to work.

[Mr. President] Seems reasonable to me.

[Senate] Don't like it.

[Grey] But for 230 years, the Senate did like their Senate recesses and thus presidents got their temporary recess appointments.

[delightedly] Until the shenanigans began! If a seat opened while an unfriendly Senate was in session, the president could just wait until they went on recess to make the appointment and thus at least get their unalloyed favorite on the court straight away for a few months.

[Senate] Well, if you're going to wait until we're on recess, then we'll never take a recess.

[President] You want to work all-year-round? Go right ahead.

[Senate] Oh no, we'll take our vacations, just not a recess.

The Senate had found a constitutional loop-hole: the pro-forma session. I will now re-enact, word for word a complete day in the Senate with a pro-forma session. I will be playing two parts: the Clerk and the Senator. Ahem.

[clears throat] Begin scene.

[Senator] Senate will come to order. The clerk will read a communication to the Senate.

[Clerk] To the Senate, under the provisions of rule 1, paragraph 3 of the standing rules of the Senate, I hereby appoint the honorable senator from the Great State of Delaware, to perform the duties of the chair. Signed, President Pro Tempore.

[Senator] Under the previous order, I declare the Senate stands adjourned for three days.

[Plop]

[Grey] End scene. That's it! An entire workday complete in what is quite often literally less than twenty seconds.

Okay, here's what's going on. The President Pro Tempore of the Senate is the longest-serving senator and who runs the Senate's procedures. But they can temporally delegate that power to someone else. This is what the letter the clerk reads into the record is doing. Translation: "This senator is in charge today." And then the senator now in charge performs one action.

[Senator] "Hey everyone, go home. Let's meet again in three days".

[Grey] Why three days? Because the rule in the Constitution is that if the Senate wants to take a three-day break it can do so any time it likes, but a four-day break requires approval from the House of Representatives. But there's no rule against taking a three-day break every four days, as long as something happens on the fourth day. And the minimum possible something is the pro-forma session that calls for another three-day break.

Oh and by the way, the senator in charge is the only senator in the room.

[gleefully] All the others are on vacation. How is this remotely legit when a quorum of 51 senators is required before the Senate can, you know, do anything?

Well the Senate itself has decided the rule is to presume that a quorum is present unless someone asks for a roll call to show otherwise. So if the one senator who is present does not ask for a roll call who knows how many senators are in the room. We'll just presume it's 51.

So the Senate takes just as many breaks as it ever did, but is never officially at recess, so if a justice unexpectedly resigns or dies, the president is blocked from making a recess appointment. It's impressive rules-lawyering according to the Senate, but shenanigans according to the president, so it was inevitable that they would get hauled before the Supreme Court to make the final call. The executive position being: if all the senators are back at home except for the one junior kid with orders not to roll call and note to say the magic words, then by no means is the Senate in session.

And, the Supreme Court, in a nine zero decision completely agreed.

[Chief Justice] Listen, Executive Branch, I know you're annoyed, but you don't get to tell the Senate when they're in recess. And also now we don't have to work with the temp.

[Grey] And thus recess appointments, while theoretically still part of the appointment process, will practically never happen again as long as the Senate keeps up their pro-forma sessions. Even though, delightfully, the Senate's official website still talks about taking their annual August recess. Which is the political equivalent of one branch of government sticking out its tongue at the other.

But shenanigans beget shenanigans. Now, of course, the Senate is not one thing, but 100 separate senators who are or aren't members of the same party as the president. So while the Senate blocked recess appointments to always get to perform their confirmations, the shenanigan escalation was to get the number of senators who need to agree with the president's nomination as low as it can be.

This top sneaky shenanigan paperwork plan had the exciting name: The Nuclear Option. But it's so bureaucratically boring the details will induce coma in the listener, (speaking from experience) so we'll skip the details and just get to the results. The two-thirds vote needed in the Senate to approve a Supreme Court justice was the historical starting place but that got whittled down to three-fifths, then dropped down to half plus one, which in practical terms means just one-half exactly, because when there's a tie in the Senate, the vice president (who will obviously side with the president) casts the deciding vote.

Through the nuclear shenanigans, it's become much easier for the president's nominee to get permanently on the bench and now the confirmation of the Senate the Constitution requires can literally mean exactly half of the senators disapprove. Again, rules-lawyering or shenanigans, is a matter of opinion but shenanigans beget shenanigans and there are more nuclear options still just waiting to be picked up.

For example, imagine the president and Senate get a justice on the court, and then later, a government of a different color is elected. Because justices serve for life, there's nothing the executive and legislative branches can do until a justice dies or resigns.

[maliciously] Or is there?

Oh, what's this? Judicial impeachment? I didn't know that was an option. It is. Surprise! Congress can impeach and remove Supreme Court justices. Now, this has never happened… fully. There was one impeachment hearing of a Supreme Court justice back at the start of the 1800s, but the vote to convict didn't pass. The whole incident set the precedent that the Supreme Court should be left out of partisan politics and justices shouldn't be removed for political advantage.

But precedents aren't laws, and this incident did leave a little unclear what the reasons to impeach could be. So that nuclear option is lying around. Another technically possible nuclear shenanigan is forced recess. The Constitution does have this power where the president can (quote) from time to time force the Congress back to the capital, presumably to sort out some emergency business (like in a war or a pandemic) and then can forcibly dismiss them when done.

Now the exact clause has this weird detail that if the Senate and House don't agree on how long their recess will be, the president gets to decide. So, if the Congress was on recess and if the president called them back to then immediately dismiss them and if the houses disagreed on how long the recess would be, then the president could force a long recess and make recess appointments till their heart's content.

It shouldn't take much imagination to see why the forced dismissal of Congress by the president would be the most truly of nuclear shenanigans and the fallout would affect, like every part of the government. But that's the sort of thing that can happen when shenanigans infinitely escalate.

And given the supreme importance of the Supreme Court, doubtless the rules-lawyers are always looking for more. Two recurring nukes being either trying to get term limits on the Supreme Court justices (but only when it's politically advantageous) (and also to make the justices more politically influenceable) or failing that, simply packing the court with more.

But, of course, if and when any possible nuclear shenanigans triggered, doubtless the Supreme Court will instantly get involved to make the final call. And if their earlier decisions are anything to go by, don't bet a lot of money on the Court deciding to make it easier to mess with the Court, but who knows?

In the meantime, the current, possible process is pretty straight forward. The Senate never goes on recess, officially. So when a seat opens the president picks a nominee. And half or more of the Senate must confirm that nominee to the highest court of the land.

[soft sneaky music fades]