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.