After Antonin Scalia's Death, What’s Next for the Supreme Court?
President Obama announced Sunday night that he definitely will nominate a successor to Justice Scalia. In addition, with Scalia’s death, the decision in the court’s pending affirmative action case—Fisher v. Texas—will be handed down by a seven-member panel, as Justice Elena Kagan has recused herself. Justice Anthony Kennedy will be recast in his familiar role of the court’s swing voter.
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Justice Antonin Scalia is dead, and his passing is nothing less than a legal and political earthquake. It will have a huge impact, not only on the court’s present term but on the course of constitutional law.
Beginning with his appointment to the high court in 1986, Scalia was the intellectual leader of what I and many other legal commentators have termed a conservative “judicial counterrevolution,” aimed at wresting control of the nation’s most powerful legal body from the legacy of the liberal jurists who rose to power in the 1950s and ’60s under the leadership of then-Chief Justice Earl Warren.
Scalia was a key architect of the jurisprudential theories of original intent and textualism, and the author of numerous landmark opinions. Among his most important rulings was the 5-4 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protected an individual right to bear arms.
But Scalia was also an unvarnished, intemperate and intolerant ideologue, railing against same-sex marriage, voting rights, Obamacare, affirmative action and other progressive causes. In recent years, often finding himself in dissent, he became unhinged at times, ridiculing his more moderate colleagues for engaging in what he called analytical “argle-bargle” and “interpretive jiggery pokery,” and for doling out legal benefits to allegedly undeserving litigants that he called “pure applesauce.”
The impact of Scalia’s death will be felt immediately in a number of pending high-profile cases, transforming anticipated 5-4 conservative rulings into 4-4 stalemates. Under the court’s rules, 4-4 decisions carry no precedential weight and leave intact the lower-court rulings under review.
This means that proponents of affirmative action (Fisher v. Texas), as well as public-employee unions (Friedrichs v. California Teachers Association), can expect constitutional reprieves, because the circuit court rulings issued in their favor will be allowed to stand. It also means that supporters of abortion rights (Whole Woman’s Health v. Hellerstedt) and immigration rights (United States v. Texas) will have an easier path toward overturning adverse lower-court decisions.
Scalia’s passing will also alter the prospects for overturning some of the court’s most conservative recent rulings—not only on the Second Amendment but on campaign finance, environmental regulation and the constitutionality of the death penalty, among others.
Politically, Scalia’s passing will unleash a pitched battle on two fronts: first, in the fight to name his successor, and second, as an issue in the upcoming presidential elections.
In the coming weeks and months, we can expect to hear a rising and increasingly hysterical chorus of Republicans demanding that President Obama refrain from nominating Scalia’s successor. Indeed, if initial press reports are any indication, the trench warfare has already begun.
But with roughly 11 months remaining in his term, Obama undoubtedly will move forward. Anyone he names will surely be more liberal than Scalia, and anyone he names will tip the balance of the court. Those who remember the televised hearings on the nominations of Justice Clarence Thomas and former Solicitor General Robert Bork can expect clashes in the Senate Judiciary Committee (which conducts hearings on Supreme Court nominations) that will make those bygone proceedings seem genteel.
At the same time, the future of the Supreme Court—always an issue in presidential campaigns—will move front and center. Assuming that GOP senators will filibuster any Obama nomination—as I think probable—voters will be asked to contemplate what the future of America will look like with a court molded by a President Trump or Cruz, or a President Sanders or Clinton. The choice facing voters will be stark.
I take no joy in the death of Antonin Scalia. But speaking as a progressive and as a staunch defender of human rights and as one who believes our Constitution is a living document that must be read expansively over time, I can’t say I will mourn his absence from the bench.
We have an opportunity to repair some of the damage Scalia and his right-wing brethren have done. Our task now is to take advantage of the opening.