Will the Supreme Court Just Disappear?

Its power is derived from custom and deference. How old-fashioned.

- Jonathan Chait

At about 4:30 p.m. on Saturday, February 13, the San Antonio Express-News reported that Supreme Court Justice Antonin Scalia had died. Within minutes—before the rest of the country even knew for certain whether the report was correct—the gears of conservative activism had begun to turn. “If Scalia has actually passed away,” tweeted Sean Davis, a former Republican staffer and co-founder of the conservative publication The Federalist, at 5:52, “the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president.” At 5:53, conservative activist Phil Kerpen tweeted, “Senate must keep vacant past election.” At 5:56, Conn Carroll, the communications director for Republican senator Mike Lee, was already certain this position would prevail, writing, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” By 6:20, less than two hours after the first reports of Scalia’s death, Senate Majority Leader Mitch McConnell had issued an official statement declaring, “This vacancy should not be filled until we have a new president.”

The world changes fast these days, but it doesn’t change that fast. In reality, the old order—the only one we’ve known, in which custom dictates that presidents have a right to fill Supreme Court vacancies with a justice who has at least somewhat friendly views—had already disappeared. Scalia’s death revealed the tectonic shifts that have taken place beneath our feet. It was the demise not only of a towering justice, or even of his slender majority, but of the institution’s ancient and inviolable standing in political life.