Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation

Election Law Blog:

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.