Welcome back to Legal Geek. This week, we investigate the immediate effects of Justice Antonin Scalia's passing away on the Supreme Court in this 2016 term and beyond.
https://archive.org/details/LegalGeekEp64
News broke last weekend that the senior-most member of the Supreme Court, Justice Scalia, had passed away of heart failure on a hunting trip in Texas. Scalia had served on the Court since confirmation in 1986, as President Reagan made him the first Italian-American Supreme Court Justice. This will cause the first line-up change at the Court since the retirements of David Souter and John Paul Stevens in 2009 and 2010, who were then replaced by Sonia Sotomayor and Elena Kagan.
So what are the effects of Scalia's death? Let's start with the 2016 term, which must now proceed with the remaining 8 Justices. With four reliable liberals, three reliable conservatives, and one swing vote among the eight remaining justices, there will be many opportunities for 4-4 ties this term. When that occurs, the Supreme Court issues a short per curiam opinion upholding the ruling of the lower court.
For some decisions this term like the teacher's union case and the re-drawing of voter legislative districts, the tie would mean liberal victories based on the lower court decisions. For other decisions like the state challenge to federal immigration policies and a Texas law impairing the rights of abortion clinics to do business, the tie would mean conservative victories based on the lower court decisions. Interestingly, thanks to Justice Kagan being recused from the case, the affirmative action case on the docket will now be guaranteed a 4-3 decision, one way or another.
These issues may be presented once again in other jurisdictions and appeals, so hope is not lost for the losing side to be granted certiorari again, it will just take longer to reach a full Supreme Court panel and a final decision. But a term loaded with huge issues and cases, even more so than the dramatic duo of Obamacare and gay marriage last June, will now unfortunately fizzle on many big issues.
Moving forward, the other important issue will be how and when Scalia will be replaced. The president has sole power to nominate a replacement, but his choice must be confirmed by the U.S. Senate. Those confirmations used to be pretty smooth sailing, but since the confirmation of Justice Thomas, that has become less and less the case in a more politicized process.
Given that this is a contentious election year and the Senate has a strong republican majority, this could shape up to be a long battle of delays. It will be interesting to see if President Obama nominates a more moderate justice than his first two a few years ago in an effort to avoid gridlock, although don't expect any strong conservative or constitutional originalist like Scalia to be the replacement.
Instead, the Court will take a different course with a new line-up, and a new voice in the room could challenge the current justices in new and different ways. If Obama adds a third Justice to the Court, then this will likely mark a true shift from a couple decades of general conservatism to the potential for a liberal-leaning court for the next few years at least. That could bring some interesting shifts in law and policy.
If the Court is stifled for a replacement for a staggering 10+ months to wait on a new President, then the gridlock in Washington will jeopardize some cases on the 2017 docket as well. Although this politically-charged process is interesting, we should hope for compromise and avoidance of gridlock so the Court can continue to operate normally.
The Bottom Line is, the Supreme Court lost a great mind this week. Even if you strongly disagreed with Justice Scalia, his legacy over three decades in the highest court will stand as one filled with strong judicial principles and well-reasoned opinions and dissents that raised the game of all Justices on the Court with him. But as with life, the Court will go on, and Justice Scalia would not want it any other way.
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