Justice Scalia’s Death And Implications For The 2016 Election, The Supreme Court And The Nation

This post was originally published at Election Law Blog.

Justice Antonin Scalia has died in Texas at the age of 79. Let me begin
with condolences to his family, friends, and former clerks who were
fiercely loyal to him (and he to them). Whatever you thought of Justice
Scalia’s politics and jurisprudence, he was an American patriot, who
believed in the greatness of the United States and in the strength of
American courts to protect the Constitution’s values as he has seen
them. He also wrote the most entertaining and interesting opinions of
any Justice on the Court.

I was just in the early stages of a project to evaluate Justice Scalia’s legacy, and I will have much to say later on about Justice Scalia’s impact on the judiciary where his views on constitutional originalism and new textualist statutory interpretation have have played a key role in the development of American jurisprudence and argumentation in the federal courts.

But let’s begin here with the implications for the Court’s current term, its impact on the 2016 election, and on the Nation as a whole.

The Court’s current term. The Supreme Court has been divided in recent years between liberals and conservatives, and more recently between Republican-appointed Justices (all conservative) and Democratic-appointed Justices (all liberal). There are a number of key cases coming to the Court where the Court was expected to divide 5-4 on issues ranging from abortion, to affirmative action, to labor union power, to the President’s power over immigration and energy policy, to voting rights. While there is a vacancy on the Court, many of those cases would now be expected to divide 4-4, which would lead the Court perhaps to dismiss the cases by an equally divided court, leaving lower court opinions standing—whether than opinion pointed in a liberal or conservative direction. Some of those cases could perhaps be delayed for appointment of a new Justice, a Justice that could potentially swing the Court from a 5-4 conservative majority to a 5-4 liberal majority. But that assumes that President Obama could nominate a liberal who could get confirmed by the Republican Senate. I think that’s fairly unlikely. Let me turn to that point.

A replacement by President Obama? It would be good for the Court as an institution to have a full complement of Justices, so that it does not divide 4-4 and can get the people’s business done. However, President Obama is coming toward the end of his term, and would need to get an appointee through the Senate Judiciary Committee. In the best of times, this is a process that takes months. But this is not the best of times. This is a highly polarized time, and strong conservatives will fight VERY hard to have Republicans block a liberal appointment to the Court. So the Obama administration faces something of a choice. Nominate a hard-core liberal who could be filibustered by a Republican Senate, or nominate someone more moderate (Judge Garland?) who could PERHAPS get confirmed if enough Republicans would be willing to go along. That’s no sure thing at all. One reason for nominating a strong liberal would be to make the issue more salient in the Presidential election. So let me now turn to that.

The Supreme Court as a 2016 Presidential campaign issue. A few months ago, before the death of Justice Scalia, I wrote the following at Talking Points Memo:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.

When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.

A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.

Especially if Senate Republicans block a liberal appointee to the Supreme Court, this has the potential to inject this issue into the Presidential campaign. And it will work both ways. You can bet that Ted Cruz will be running on a platform to replace Scalia with more and more Scalias. This could finally be the election that brings the Supreme Court into national focus much more (it has not been mentioned so far in any of the presidential debates I’ve seen). You can listen to UCI Law Dean Erwin Chemerinsky discuss the implications of the changing Supreme Court with Dahlia Lithwick on Slate’s Amicus podcast.

The Implications for the Nation of a changing Supreme Court. There is so much at stake concerning the Supreme Court for the next few years. As I wrote in Plutocrats United, the easiest way to amend the Constitution to deal with campaign finance disasters like the Supreme Court’s opinion in Citizens United is not to formally amend the Constitution, but instead to change the composition of the Supreme Court. Regardless of what happens with Justice Scalia’s replacement, there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term. The stakes on all the issues people care about—from abortion to guns, from campaign finance and voting rights to affirmative action and the environment, depend upon 9 unelected Justices who serve for life.

Ed Whelan (a strong conservative, and former Scalia clerk) and I will be doing a webcast on The Supreme Court and the 2016 Elections on Feb. 22. I’m sure these issues will be hotly debated, as moderated by my colleague (and former LA Times legal correspondent Henry Weinstein).

The kind of battles we will see over the fate of our Nation, enacted in the polarized Congress and in a polarized nation, will be epic. The stakes are high, and as I explain in Plutocrats United, depending on conditions we could see a vacant Supreme Court for a while (look for conservatives to argue over that) and likely the end of the filibuster for Supreme Court nominees (look for that if there is unified control of the Presidency and Senate, but without a filibuster proof majority.)

As I said at TPM, this is the moment. It is the beginning of the most important civil rights debate of our time.