Implications Of The Death Of Supreme Court Justice Antonin Scalia


Supreme Court Justice Antonin Scalia was found dead at a Texas ranch where he was staying while on a hunting trip at age 79. He was appointed to the Court by Ronald Reagan in 1986. His conservative rulings have had a profound, and negative, effect on the country during that time.

The legal and political ramifications are likely to be enormous. The next several months could be dominated by a fight over confirmation of Obama’s appointment, likely expanding the range of issues which the presidential candidates must discuss over the next several months. Voters might think more about issues such as reproductive rights and voting rights, which could be greatly influenced by the balance of the court, during the election year.

Republicans might try to prevent any Obama appointee from being confirmed hoping that a Republican could be elected an make the next choice. Such obstructionism might also backfire against the Republicans, along with demonstrating how many of their views are not accepted by a majority of Americans. It is also possible that Democratic Senators will block right wing choices should there be a Republican president in 2017.

For the current year (and possibly beyond) this means one less conservative vote on matters the Supreme Court is now considering, including  abortion rights,  affirmative action, and another challenge to Obamacare. I also wonder to what degree Scalia was able to influence any swing justices to side with the conservatives. There is also the possibility of some matters coming down to a four to four tie.

The Washington Post had an article in December suggesting that  tie votes on the court, due to a vacancy, will favor liberals, even if the author doesn’t seem happy with that prospect:

Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats…

A Supreme Court vacancy would favor liberals, because an eight-member court would often divide 4 to 4, affirming the decisions of the predominantly liberal lower courts.

Ties would be most common if the vacant seat belonged to swing voter Kennedy. If Scalia were the one to leave, Kennedy’s conservative tilt would sometimes generate the ties, barring the occasional walkabout from Chief Justice John Roberts. And if Ginsburg or Breyer left, Kennedy would side with the three remaining liberals often enough to sometimes tie the court in important cases. In addition to his much-touted vote for same-sex marriage in Obergefell v. Hodges, Kennedy has voted with the liberals in civil rights and environmental cases, to rein in partisan redistricting and to grant Guantanamo prisoners the right to challenge their detention.

A tied Supreme Court traditionally issues a per curiam, or unsigned, decision affirming the ruling of the lower court. So under an eight-member court that regularly produced split decisions, each circuit would be like a little Supreme Court of its own. Obama has overseen a significant transformation of the federal courts, with nine circuits now dominated by Democratic appointments and only four by Republicans. On really important cases, the circuit courts are likely to meet en banc, with most or all of the judges sitting, meaning raw numerical dominance will always matter.

The 5th, 6th, 7th and 8th circuits, where conservative decisions would stand in the case of Supreme Court ties, mostly cover red states in the South and Midwest. Only some of the Great Lakes states are caught offsides. Meanwhile, the blue states on the coasts, along with purple Western states such as Colorado, are in liberal circuits. But here’s the kicker: Since most of the circuits are controlled by liberals, much of the conservative heartland is marooned in blue circuits. Arizona, Idaho and Montana are in the much-reversed liberal 9th Circuit. The entire Southeast, from Virginia to Florida, is covered by two circuits liberalized by Obama appointees. One liberal circuit, the 10th, has just one reliably blue state, New Mexico.

Update: Mitch McConnel says that a new justice should not be chosen until after the election.  SCOTUSbLog has more on cases currently under consideration. President Obama is about to speak as I am typing this, and is expected to say he will be nominating someone despite GOP objections.


  1. 1
    Mike Hatcher says:

    The Washington Post has an article that says: "the last time a justice was nominated to the Court in a presidential election year and confirmed by a Senate controlled by the opposing party was 1880,"

  2. 2
    Ron Chusid says:

    That is a rather misleading statistic because it has been such a rare event for a vacancy to occur in an election year. It was common in the 1800's and it was routine to confirm them.

    In the 20th century this became rare, and it was the Republicans who blocked a nominee when they got a chance under LBJ. While the vacancy came up prior to the election year, the actual confirmation vote on Johnson was in February of Reagan's final year in office, and Democrats voted to confirm him

    It is a Republican tactic to ignore the Constitution and claim that a Justice should not be confirmed during an election year.

  3. 3
    Mike Hatcher says:

    To be clear about my statement, I wasn't claiming that there was some rule prohibiting a nomination in an election year, like some Republicans have implied. I was bringing up the statistic more as a "forecast"  that with it being so rare, and also the way the parties are so polarized, that I'm making a rather safe, easy, predication that no Supreme Court nomination will be approved by congress this year.  This could give Democrats a fresh new example of painting Republicans as obstructionists, which of course they would be in this case. (I'm sure I disagree with you on some other examples that you would call Republican obstructionism that I would call them holding firm against government overreach, but this case would not be one of them.)  It seems clear to me you were talking about Anthony Kennedy, after you mentioned LBJ you slipped and wrote "Johnson" instead if Kennedy, but I got it.

  4. 4
    Ron Chusid says:

    It goes beyond whether there is a law. Historical precedent also supports naming a successor now as opposed to waiting for the election, which would mean going for well over a year with a Supreme Court vacancy.

    And yes this would greatly strengthen the case against the Republicans re obstructionism.

    Yes, good old Judge Johnson, better known as Kennedy.

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