A few months ago something weird happened. Virginia had passed a law aimed at preventing trans students from using the restroom that corresponds to their gender identity, and a federal district court had entered a preliminary injunction blocking that law from going into effect. In other words, the district court had preliminarily determined that the law was discriminatory, and had rejected the law before it had been considered fully at trial. And the U.S. Court of Appeals for the Fourth Circuit had affirmed that decision — likewise preliminarily rejecting the law before a full trial had taken place. But this isn’t what was weird.
The weird thing happened at the Supreme Court. After being blocked at the district court and again at the court of appeals, the county school board trying to enforce the new law asked the Supreme Court to stay the district court’s injunction. In other words, the school board asked the Supreme Court to unblock the law — so that the discriminatory law could be enforced against trans students — at least until the law could be fully considered (and perhaps still rejected) at trial. And the Supreme Court agreed.
Now, you might ask: “What’s so weird about a conservative Supreme Court allowing this bathroom law to be enforced against trans students?” Well, there are no longer five conservative votes on the Court, and it takes five votes to stay an injunction like this. So where did the fifth vote come from? From Justice Breyer — one of the “liberal” justices. And why would one of the liberal justices join the conservatives to unblock a law that two lower courts had already determined was discriminatory? According to Justice Breyer, he did it “as a courtesy.” The discriminatory law could still be rejected later, after a full trial. Breyer was simply allowing the full trial to occur. Again, “as a courtesy.”
That was weird. And it got some attention. Indeed, it drew criticism. Especially from the left.
But some saw Breyer’s courtesy as an attempt to depoliticize the Court — or, more pointedly, as an attempt to elicit the same courtesy from his conservative colleagues. The idea was that Breyer might be voting with the conservatives, in a case that conservatives cared about, in the hopes that one of those conservatives might vote with the liberals later, in a case that liberals cared about. It was a judicial “I’ll scratch your back if you scratch mine,” so to speak.
And apparently it worked. Last night, a man on death row asked the Supreme Court to stay his execution, at least until his appeal could be fully heard. The Court has typically denied requests like these, especially when it appears at first blush that the prisoner’s appeal has no merit. The four liberal justices have often wanted to grant stays like this — to allow the prisoner to have his full appeal before being executed — but they’ve been unable to draw a fifth vote from any of the conservative justices. Until now.
Last night, Chief Justice Roberts returned Breyer’s courtesy. “I do not believe that this application meets our ordinary criteria for a stay,” wrote Roberts. “This case does not merit the Court’s review,” he said. Nevertheless, Roberts provided his fifth vote for a stay — “as a courtesy.” The prisoner’s appeal still might fail and he still might be executed. But Roberts was willing to allow the full appeal to occur. Again, “as a courtesy.”
And with that, Breyer and Roberts gave us a glimpse of cooperation, of collegiality, of mutual respect and good-governance — something truly weird, because it’s something we haven’t seen for a while. For the past eight years, the Republican Party has been engaged in a long-term strategy of obstruction — particularly when it comes to judicial nominees. They’ve taken a transparently unprincipled stand against President Obama’s effort to fill the Supreme Court vacancy, for example. And now they’re talking about blocking all efforts to fill that vacancy for the next four years, if Hillary Clinton is elected. (On Twitter, some of us have described this as the right’s new “Court-pruning plan” — the opposite of FDR’s transparently political Court-packing plan from the 1930s.) To many, it appears likely that Republican obstruction will only intensify — on all fronts — if Clinton is elected.
This is why the Supreme Court’s moment of courtesy is so significant. Because it points the way forward. We’ve had eight years of obstruction and gridlock in the Legislative Branch — and we’re facing at least four more years of the same, if nothing changes. In the Judicial Branch, Justice Breyer offered an olive branch. And Chief Justice Roberts accepted it and returned the courtesy. This exchange should be viewed as model behavior.
President Obama offered an olive branch several months ago, when he nominated Merrick Garland to fill the Supreme Court vacancy. At a moment of hyperpartisan gridlock, in an election year when he could have chosen a 40-year-old African- or Asian- or Hispanic-American liberal — which would have further politicized the Court and mobilized Democratic voters — Obama instead chose Garland, a 63-year-old white moderate who has been praised by Republicans. Obama effectively neutralized the Supreme Court vacancy as an election issue for Democrats. And, like Breyer, he’s taken some heat from the left for doing so.
So far, senate Republicans have rebuffed Obama’s offering by refusing to allow full hearings and a vote on Garland’s nomination. But it’s not too late for them to take a cue from Chief Justice Roberts. By returning courtesy for courtesy, Roberts demonstrated how a divided branch can still get things done in a way that both sides can stomach.
Senate Republicans should take the hint. Allowing full hearings and an up-or-down vote before rejecting a judicial nominee is like allowing a full trial before blocking a law, or allowing a full appeal before putting a man to death. The nominee can still be rejected if that’s what enough senators want. But Republicans should be willing to allow the full process to run its course. Blocking Garland and every other possible nominee for the next four years — without giving anyone an up-or-down vote — is partisanship at its worst. It’s unconscionable. Instead, Republican senators should follow Roberts’s example and simply allow the process to complete itself. Republicans can still vote to reject every judicial nominee, if they want to. But they should allow a vote to occur as a sign of mutual respect, goodwill, and good governance. Or, in other words, “as a courtesy.”