The big reveal

“OUR country is going to be Venezuela,” Donald Trump said over the summer, if Hillary Clinton gets to nominate Supreme Court justices. Her picks will be “so far left,” Mr Trump said, that America will slide into socialism. For her part, Mrs Clinton says the Republican nominee’s Supreme Court appointments would threaten the “future of our planet”, among other things. Melodramatic campaigning is nothing new, and the Supreme Court is an issue every four years. But with Republicans in the Senate refusing to consider Barack Obama’s choice of Merrick Garland to fill the late Antonin Scalia’s seat—and the remaining eight justices divided and a bit flummoxed in the meantime—this go-round is different. Change is coming, in one direction or another.

Both camps say that the next president could appoint as many as four justices (Mr Trump once said five), including a replacement for the very conservative Mr Scalia. These predictions are a rather morbid nod to demographics: Ruth Bader Ginsburg, the longtime leader of the court’s left wing, is 83. The slightly less liberal Stephen Breyer is 78, and Anthony Kennedy, sitting in the ideological middle of the bench, is 80. Each of the four most recent presidents has seated two justices, so having the chance to name four would give the next White House an outsize influence on the shape of American law for a generation. Yet even if these three jurists, along with their five younger colleagues, muster four more years in their robes and the number of vacancies stays at one, the next president will still help determine the shape of the Supreme Court for years.

The octogenarians are showing few signs of slowing down. The cherubic Mr Kennedy is still prone to syrupy prose early in his ninth decade. Despite her bouts with cancer and an occasional nap during a State of the Union address, Mrs Ginsburg does 20 push-ups a day, pulls all-nighters and remains ruthless when peppering lawyers during oral arguments. If anything, she is gathering steam. Her fellow Bill Clinton appointee, Mr Breyer, spins impromptu hypotheticals that box advocates into their own illogic. His health scares? Just a few broken bones and a punctured lung suffered during bicycling accidents.

If they stay put for the next four years, the balance of the court will turn on the identity of the next appointee. There are three possibilities. The Senate may relent after November 8th and consider President Obama’s nominee, Mr Garland. In 1996, when Mr Garland was nominated by Bill Clinton to sit on the District of Columbia Court of Appeals, he garnered praise from many Republicans. Senator Orrin Hatch called him “a fine nominee” whose “intelligence and…scholarship cannot be questioned”. Charles Grassley, the judiciary committee chair who has stonewalled Mr Garland’s high-court nomination for a record-breaking 184 days (Louis Brandeis, now in second place, had a 125-day wait in 1916), said two decades ago that the same man was “well-qualified”. After a pledge of no hearings before the next president takes office, Mr Grassley is now hedging.

Filibust

But if Mr Garland continues to languish in no-man’s-land, everything will hang on what happens in November. Mr Trump has released a list of deeply conservative judges whom he would consult when filling vacancies. If Mrs Clinton wins, her decision on whether to resubmit Mr Garland or tap her own nominee may depend on which party controls the Senate. If the Democrats retake the chamber, she may be emboldened to choose someone younger and more liberal.

Under current Senate rules, nobody too far to the left or the right will stand a chance. But since neither party seems likely to have the 60 votes necessary to stave off interminable filibusters, the days of that venerable (if diminished) Senate tradition may be numbered—at least with regard to Supreme Court appointments. Richard Primus, a law professor at the University of Michigan, notes that the filibuster “relies on a kind of comity and mutual regard” between Republicans and Democrats that “unfortunately…is just gone”. The outgoing Senate minority leader, Harry Reid, agrees: “What choice would Democrats have? The country can’t be run this way, where nothing gets done.” Privately some Republican senators say that, whoever wins, the filibuster will go.

While they await a ninth colleague, some justices lament their existential bind. “Eight…is not a good number for a multimember Court”, Mrs Ginsburg said in May. That same month, Mr Breyer downplayed the worry, observing that the court is unanimous about half of the time and finds itself closely divided in only a handful of controversial cases. The chief justice, John Roberts, has doubled down on his penchant for narrow rulings that change as little as possible. Consensus, he says, is “not something I can do on my own”.

On four occasions in the spring—including in controversial cases on union dues and deporting undocumented migrants—the justices’ attempt to find common ground failed, resulting in a split of 4-to-4. A tie means that the ruling in the court below stands but has no value as a precedent and does not bind other courts. The justices also unanimously sent a case on religious freedom and contraception back to the lower courts with orders to encourage the parties to “resolve any outstanding issues”. Like exasperated parents unwilling to adjudicate a settlement for warring children, the Supreme Court simply told the parties to work things out. This strategy of avoidance now passes for jurisprudence.

Aware of the Senate’s inaction across the street, the justices seem stuck in standby mode. The docket for their upcoming term is looking wan, with fewer cases and less controversy than the court has seen in a long time. Contentious cases involving religious liberty and property rights have yet to be scheduled for oral argument, apparently in the hopes that a ninth justice might be seated in the spring.

The Supreme Court cannot fend off controversy for long, though. Fights over presidential power, administrative leeway, freedom of speech, abortion, race, religion and discrimination against gays and lesbians—to name a few—are sure to arrive at the justices’ doorsteps. Mr Primus notes that with the court tottering on an ideological divide, it takes only one newcomer to push it left or right. “It’s a hinge”, he says, “on which the direction of constitutional law could turn for decades”.