Sen. Chuck Grassley attacks the Supreme Court, John Roberts.

Senate Judiciary Chairman Chuck Grassley Just Took a Torch to the Supreme Court and the Chief Justice

Senate Judiciary Chairman Chuck Grassley Just Took a Torch to the Supreme Court and the Chief Justice

The law, lawyers, and the court.
April 7 2016 6:27 PM

Chuck Grassley’s Supreme Court Coup

The Senate judiciary chairman just took a torch to the high court for the sake of partisanship.

Chuck Grassley
Sen. Chuck Grassley doesn’t want a debate—he wants a coup. Above, Grassley at a committee meeting on Capitol Hill in 2015.

Brendan Smialowski/AFP/Getty Images

Sen. Chuck Grassley is in a tough spot. The Republican from Iowa, who chairs the Senate Judiciary Committee, has to decide whether or not to grant Judge Merrick Garland a hearing or to continue the unprecedented obstruction of President Obama’s Supreme Court nominee. When a guy dressed like Ben Franklin is trolling you through town halls in Iowa, you know you’re in trouble.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

But Grassley’s bigger problem is that he has indicated in the past that he knows better than to take a torch to the Supreme Court for the sake of partisanship. Like most court-watchers, Grassley is well aware that the institution is often political, and that it always has been. But like most court-watchers, he is also aware that the continued viability of the institution rests on the jagged myth that the court can transcend politics and those moments when the court actually lives up to that ideal.

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Grassley surely knows better than most that the court has only the public’s esteem to shore it up—and he knows better than anyone that the public trust demands at least some confidence the judicial project is about more than brute power and party loyalty.

Grassley knows all that, but as pressure on him has ramped up to hold hearings—and a vote—on a seat that remains empty, he’s apparently decided it doesn’t matter anymore. On Tuesday, Grassley gave a speech that went after the Supreme Court as a purely political institution, pantsing the entire high court, and Chief Justice John Roberts by name, on the floor of the United States Senate. In so doing, he not only damaged the Senate’s relationship with the court in a way he may not be able to repair, but also exposed his own hypocrisy as chairman of a judiciary committee tasked with ensuring that the court can function.

Grassley went after Roberts specifically for having the temerity to give a speech before Justice Antonin Scalia’s death, where he noted that “the [nomination] process is not functioning very well” and that well-qualified nominees—including current Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor—should have been confirmed along bipartisan lines.

No way, said Grassley. If politics have overtaken the nomination process, it’s the court’s fault. “What’s troubling is that a large segment of the population views the justices as political,” Grassley said. And whose fault is that? “The justices themselves have gotten political,” he declared. “And because the justices’ decisions are often political and transgress their constitutional role the process becomes more political.” In fact, Grassley added, (apolitically) his own constituents believe that Roberts “is part of this problem.”

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“They believe that the number of his votes have reflected political considerations, not legal ones,” Grassley continued, adding with a flourish “so, physician, heal thyself.” To add a little mob flair, he then warned the chief not to insert himself into Garland’s nomination fight.

To be fair to Grassley here, we should consider: Isn’t he just telling the truth about politics influencing court opinions?

The problem with this defense is that the judiciary chair’s double-helix of hypocrisy gives him no standing to call out Roberts or any member of the court. Grassley has—at various times in his career—argued that the court is different from the other two patently political branches. For instance: In January 2006, with Alito having just been appointed to the high court, Grassley argued that the politics had nothing to do with the nomination process, nor the court. “The Senate’s tradition has been to confirm individuals who are well qualified to interpret and to apply the law and who understand the proper role of the judiciary to dispense justice,” he said. This coming from the man who is now arguing that politics is the reason we can’t have a hearing.

But the extra special hypocrisy sauce here is that Grassley now says that the only way to depoliticize the court would be to appoint nominees who conform their political views to those of the Republican Party. “Justices appointed by Republicans are generally committed to following the law,” he said. And then he argued that the court is too political because Republican nominees don’t act sufficiently politically. “There are justices who frequently vote in a conservative way,” he said. “But some of the justices appointed even by Republicans often don’t vote in a way that advances conservative policy.”

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Wait, what? So the problem for Grassley isn’t “political” justices—it’s justices appointed by Republicans who don’t advance “conservative policy” 100 percent of the time. And with that, he revealed his real issue. His Senate floor attack isn’t about depoliticizing the court at all. It’s about calling out Roberts for being insufficiently loyal to the Tea Party agenda when he voted not to strike down Obamacare.

What is really being said here is that there is only one way to interpret the Constitution and that is in the way that “advances conservative policy.” According to Grassley’s thinking, a justice who fails to do that in every single case before him or her is “political” and damaging the court. By this insane logic, the only way to protect the court from politics is to seat nine Chuck Grassleys and go home. And to achieve this type of court he will stop at nothing, including trash talking the entire institution from the Senate floor and threatening the chief justice who will, because he is chief justice, decline to respond.

Again, remember back at the time of the fight over Alito when the same Sen. Grassley warned, “the Supreme Court does not have seats reserved for one philosophy or another. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of government.” What that seems to have meant in retrospect: There is only a single judicial philosophy and if I don’t get a nominee who shares that philosophy, I’ll happily slander the whole court.

Grassley’s aides like to claim that he believes in his heart that this unexpected election-year vacancy offers the country a rare opportunity for a national debate about the role of the Supreme Court. We have a forum for just such a debate. It’s called a confirmation hearing. But Grassley doesn’t want a debate. He wants a coup.

Speaking Thursday afternoon at the University of Chicago Law School on the court’s role, President Obama warned against exactly this form of dangerous and destructive politics. When people “just view the courts as an extension of our political parties—polarized political parties” he warned, public confidence in the justice system is eroded. “If confidence in the courts consistently breaks down, then you see our attitudes about democracy generally start to break down, and legitimacy breaking down in ways that are very dangerous.”

Sen. Grassley has made the choice to hold no hearings and have no vote for an eminently qualified jurist because—as he has now openly stated—there are only two legitimate justices on the Supreme Court, the two who agree with his viewpoint 100 percent of the time. Grassley, and the rest of his Republican colleagues who continue to refuse hearings and a vote on Merrick Garland, have seamlessly and shamelessly turned the entire judicial branch into their own, private constitutional snowglobe.