Professor Garrett Epps contributed a comment today to The New York Times online, “Partisanship Is Being Imposed Upon the Supreme Court.”
Begins Epps: “The nation’s political dysfunction, like a toxic flood, has fouled the historic courtroom at 1 First Street, NE. But the sludge is not flowing from within the court.”
Epps, the Supreme Court correspondent for The Atlantic and the author, most recently, of American Justice 2014: Nine Clashing Visions on the Supreme Court, said that even with Justice Antonin Scalia’s “acid pen” in the mix, the justices – at least from the vantage point of the press gallery – seemed to get along and enjoy their work.
Since Scalia’s death in February, Epps wrote, he has been touched by the “determined, almost gallant” efforts of the justices to keep doing their jobs, knowing that 4-4 affirmances serve no one well.
“Like a bird with a broken wing, the court hasn’t stopped trying to fly. But it can’t,” he wrote.
The court’s order on Monday in a case involving access to contraceptive coverage under the Affordable Care Act had the “pathetic sound of failure,” Epps said: “’Can’t you see Mommy’s not feeling well? You children work it out among yourselves!’”
(The court did not decide if the ACA’s birth-control mandate violated the Religious Freedom Restoration Act, but instead sent the cases — which were consolidated into one, Zubik v. Burwell — back to the federal appeals courts.)
The crisis is likely to last well into next term, he continued: “History may remember it as a moment that, like the 1937 ‘court-packing’ crisis, changes the nature and self-image of the court forever.”
Epps also cautioned the Senate’s Republican leadership not to be too confident that, if the party succeeded in filling the Scalia seat, the court would do the GOP’s bidding:
“[H]owever justices may reach the bench, they often tend to forge a loyalty to the court that transcends that to party.”