Supreme Court Justice Antonin Scalia, who helped usher in a conservative renaissance and dramatically changed the way the Supreme Court operates in American politics, was found dead last Saturday in a Texas ranch. He was 79.
Immediately, the Internet exploded.
Political pundits pounced on his death, some celebrating, most speculating. What does this mean for the Supreme Court? Can they still function? How will he be replaced? With whom? The implications of his death—in an election year, no less—raise the stakes in an already hotly contested race.
How The Supreme Court Functions
Let’s back up a bit to your hazy memories of high school civics or government classes. The American government operates in a balance of powers, otherwise known as the system of checks and balances. The founding fathers (incidentally, Scalia’s often-cited favorites) built this system specifically to combat the tyranny of the monarchy, so that no office could have more power than another. The Supreme Court’s website does a great job of explaining the basics.
The Court consists of 8 associate justices and 1 chief justice (currently, Chief Justice John Roberts). The President has the power to appoint justices to the court, with confirmation from the Senate. Generally, that translates to Democratic presidents choosing liberal candidates and Republican presidents choosing conservative candidates. The current political climate of the court splits it nearly always 5-4, conservative. With Scalia’s passing, that leaves the court even, 4-4, on most issues. The New York Times breaks it down this way:
What’s Left On the Table
When a Justice passes, any votes not decided publicly become void, unless Scalia’s vote was not necessary to the outcome (meaning, if he was in dissent, or if the majority made up more than 5 justices of the court). Otherwise, a divided 4-4 court means the ruling from the lower court stands.
The short answer to what Scalia’s death will affect? Everything. This year was already a big one, tackling issues from climate change to unions and more:
- Immigration: United States v. Texas, which would reverse Obama’s executive order allowing nearly 5 million undocumented immigrants to remain in the country, the majority of whom came here as children.
- Abortion: Whole Woman’s Health v. Cole, otherwise known as the greatest challenge to Roe v. Wade yet. It could set a precedent that would allow states to shut down abortion clinics all over the country. In Texas, where the case originates, it would uphold the state laws dropping open clinics from 42 to just 19.
- Affirmative Action: Fisher v. University of Texas, which could destroy affirmative action as we know it. Check out the Her Campus recap for more on this particuarly divisive issue.
- Birth Control: Zubik v. Burwell, arguing that employers have the right to deny employees health care, including birth control, if providing the care violates their religious views—they claim it violates their religious freedom. This would effectively deny women access to contraceptives.
These articles from Think Progress and Politico break down the remaining issues for you to think through. According to the SCOTUS Blog, because of the importance and politically charged nature of these issues, they may be reargued, rather than left to the lower court’s ruling. At this point, it’s all speculation, but certainly an option that would eliminate confusion and allow for decisions to be made, once Scalia is replaced.
The Upcoming Confirmation Battle
The cases aren’t the only parts of this that are politically charged. Less than an hour after Scalia passed, politicians drew battle lines. Senate Majority Leader Mitch McConnell (R-KY) decreed that the vacancy should not be filled until a new President is in office, citing that the American people needed to choose.
That’s outrageous.
Just to be clear: Americans did have a voice, when they elected President Obama. When a President is in office, he or she has the power to appoint a justice, no matter at what point in their term. The Senate then has an obligation to vote to confirm or reject said nominee. What McConnell is basically saying is that he won’t even let it come to a vote, let alone a confirmation. The absurd arguments Senate Republicans are making mock our Constitution, and completely defeat the purpose of the balance of powers.
Related: Remember That Time Only Female Senators Came To Work In A Blizzard?
The reason they’re making all the fuss? It’s an election year, and if a Republican wins, they can continue the conservative renaissance seen on the court for decades, since Justices generally serve for life. If a Democrat wins (or if for some crazy reason, the Senate can confirm Obama’s nominee), it flips the court, 5-4 liberal, which has the potential to overturn many of the conservative gains of the past decade.
This is why the stakes couldn’t be higher. Obama will nominate a replacement for Scalia, but the likelihood of the confirmation occurring is slim to none, if history in this do-nothing Congress holds true. Even though there is little to no historical precedent for a court to remain a year or more without its full complement of justices, the outlook is bleak that anything but that will occur.
Here’s the thing: the Republicans are playing with fire.
Blocking an Obama nomination pleases hardline right-wingers, because it buys conservatives time to win the general election and nominate a conservative in Scalia’s place. But it could completely backfire with moderates and energize Democrats. Blocking Obama’s nomination only proves to them how little they get done and shows the American people the worst of partisan politics. In an election dominated by political outsiders, mavericks, and revolutionaries, Americans have proven they’re tired of it.
Both sides have made their choice. If the fate of this election rides not just on the next president but also the next Supreme Court justice nominee…things are about to get crazy.
Keep checking here for more about how Scalia’s death affects this election, because it’s not over yet.