How Scalia's death could change Supreme Court and Election 2016

The passing of Justice Antonin Scalia substantially undercuts the ability of the United States Supreme Court to decide some of the most contentious national issues currently pending at the high court.

In addition, it thrusts the nation’s highest court into a glaring spotlight in this year’s presidential election, and it sets the stage for a year-long confrontation between President Obama and Sentate Republicans over not just who should fill the vacant high court seat but how fast the nomination and confirmation process should proceed.

On a human level, Justice Scalia’s sudden death Saturday while on a hunting trip in Texas casts a pall over the institution he loved and served for nearly three decades. He is being remembered by friends and colleagues as one of the most influential justices in a generation, and perhaps in high court history.

They are praising his intellect, his wit, and a combative style from the bench that had a capacity to endear and enrage. He was a gifted writer and, at times, an uncompromising critic of judges and fellow justices with whom he disagreed.

“His brilliance and wit not only lit up a pen; they lit up a room,” said Amy Barrett, a Notre Dame law professor and former Scalia law clerk, in a statement. “He was larger than life, and it is difficult to imagine life without him in it.” 

Scalia’s most enduring contribution to American jurisprudence may ultimately be his self-professed fidelity to originalism and his rejection of the concept that the US Constitution is a living document that should be liberally reinterpreted by the courts. Instead, Scalia preached the virtues of remaining faithful to the text – the actual words – in the Constitution or in a statute.

To Scalia, and the growing number of conservative scholars and judges who follow his approach, originalism is a safeguard against judges using their lifetime appointments to amend the Constitution or statutes to reflect their personal policy preferences.

He believed that it was for lawmakers to make laws and that it was for judges to confine themselves to giving no greater or lesser force to the resulting measure.

In a statement to the nation on Saturday night, President Obama praised Scalia as a “brilliant legal mind with an energetic style, incisive wit, and colorful opinions.”

Obama ordered flags across the country to be flown at half-staff in honor of Scalia.

But the president also made clear that he planned to move forward with a nomination to fill the vacant seat at the high court. He called on the Senate to give his nominee a “fair hearing and a timely vote.”  

When to move forward

The vacant high court seat is significant because the Supreme Court had been divided with five justices nominated by Republican presidents and four nominated by Democratic presidents. Now, with Scalia’s passing, the divide is four to four.

If Scalia’s seat is filled by a more liberal-leaning Democratic nominee it could substantially shift the balance of power on the high court in a liberal direction in the full range of hot button issues.

It is for that reason that Democrats are already pushing hard for a relatively quick nomination by Obama and a Senate vote this year on that nominee.

For the same reason, Republicans, who currently hold a majority of Senate seats, are insisting that the nomination and any vote be delayed until after the November presidential election.

Senator Chuck Grassley, (R) of Iowa, chairman of the Senate Judiciary Committee, said in a statement that standard-practice for 80 years has been that Supreme Court nominations and confirmations should not proceed during a presidential election year. 

“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice,” Senator Grassley said.  

The effect this term 

As for the ongoing work at the Supreme Court itself, what had looked to become one of the most momentous Supreme Court terms in years suddenly looks a lot less so.

In the next three months, the justices are set to hear cases examining abortion restrictions in Texas, the contraception mandate in Obamacare, and whether President Obama acted constitutionally in his executive action on immigration.

Now, with one less vote in the court’s conservative wing, the court appears split four to four between liberals and conservatives.

That doesn’t mean there won’t be significant decisions. For example, if Justice Anthony Kennedy joins his liberal colleagues in the Texas abortion case, as some analysts expect, that could lead to a 5-to-3 decision striking down all or part of the Texas abortion restrictions. That decision could be a landmark and Scalia’s absence would be felt only in the loss of what would likely be a fiery dissenting opinion.

But in the contraceptive mandate case and the Obama immigration cases, the loss of Scalia’s vote could result in a 4-to-4 tie that would leave the lower court decisions in place. Such an outcome would resolve those cases, but set no national precedent.   

Legal experts note that decisions in cases that have already been heard in oral argument by the court but not yet publicly announced may change with the loss of Scalia’s vote. Those cases include a dispute testing whether unions representing public employees can require nonmembers to pay fair share fees to a union for collective bargaining. Analysts anticipated that the court might rule 5 to 4 against the unions. That outcome is now unlikely.

In addition, the court was preparing a decision in a case raising a fundamental question about the meaning of “one person, one vote,” and how voting districts are drawn in Texas. The outcome of that case is now also in doubt.

The high court is also considering a potential landmark case examining the use of race in an affirmative action plan at the University of Texas at Austin. But the loss of Scalia’s vote may not undercut a final decision in that case because Justice Elena Kagan is not participating in the dispute. So a 4-to-3 vote is possible.