Supreme Court Associate Justice Antonin Scalia died Saturday at age 79. Appointed in 1986 by President Ronald Reagan, Justice Scalia served on the Court for 29 years. He will long be remembered for his staunch conservative rulings as well as his vocal support for interpreting the Constitution according to its original understanding. In fact, to the extent that a good number of people today believe that originalism is the proper way to understand the Constitution, Justice Scalia can be thanked (or criticized) for that. His views on the subject were that influential.
Much will be written about his legacy in the coming days and weeks, but for now, the big question on everyone’s minds is what this means — especially in a Supreme Court term with big issues like affirmative action, abortion, contraception, union rights and voting rights on the docket.
With a vacancy on the Court, the responsibility to fill it falls on President Obama and the Senate; pursuant to Article II, section 2 of the Constitution, the president nominates justices of the Supreme Court, and the Senate confirms them with a majority vote.
Enter bitter partisan politics, with a heaping dose of election-year dysfunction. In a normal situation, given the huge divide between President Obama and the Republican-controlled Senate, it would be very hard for Obama to get a Supreme Court justice confirmed. This year, though, Republicans are going to hope that they can push this off until they win the presidential election and can appoint their own replacement. In other words, there’s very little incentive for the Republican Senate to move quickly.
And it’s even more complicated than usual: If Justice Scalia is replaced with a liberal, that would tilt the Supreme Court to a 5-4 liberal majority (broadly speaking). Everyone in Washington knows this, meaning the stakes are even higher than they would be if a seat on the Court currently filled by a liberal were to open. The Democrats are salivating over this possibility; for Republicans, it’s their greatest nightmare. They will fight President Obama’s nominee tooth and nail, which means the seat could stay open for a long time.
So what happens to the cases currently before the Court? The Court will continue functioning, even with only eight Justices. Cases with five (or more) justices in the majority will have the same result as they would with nine justices.
But what about cases with an even split, which is now a real possibility? Four-four decisions are a strange beast in the Supreme Court; they are rare, but they have happened. And when they do, they result in the lower court’s decision remaining the law, but there being no opinion from the Supreme Court and no nationwide effect.
For this term, what this means is that Roe v. Wade is safe. In the abortion case currently before the Court, the Texas federal appeals court found Texas’ abortion restrictions constitutional. If Justice Kennedy, the swing vote, believes the restrictions are unconstitutional, the outcome would be the same now as before: a five-justice majority striking the law down (assuming the four liberals join him, which is a good assumption).
But if he decides the law is constitutional (and the four liberals think it’s unconstitutional), that would result in a 4-4 decision. The appeals court decision would remain, which would mean the Texas restrictions could go into effect. This would be disastrous for the women of Texas. However, many people feared this case would be a vehicle for the Court to overturn Roe v. Wade. A 4-4 decision cannot do that. Roe is safe.
Affirmative action, though, remains on the chopping block. The case before the Supreme Court now involves the University of Texas’ affirmative-action plan. The federal appeals court upheld the plan, finding it constitutional. Without Justice Scalia, there are now seven justices considering that case because Justice Kagan recused herself, having worked on the case before becoming a justice.
What this means is that the calculus from before is the same: Justice Kennedy will be the swing vote. However, this time it will be which side of a 4-3 decision he’ll be on.
Every issue that has a likely liberal/conservative divide and is now pending before the Supreme Court has to be assessed in the same way. With the likelihood of an extended vacancy high, we will probably see a slew of 4-4 decisions coming our way.