Antonin Scalia was a careful steward of the U.S. Constitution throughout his career. May he rest in peace. Through the Constitution the people tell their government “this far may you go, but no further.” Justice Scalia worked to keep government within its lawful bounds during an era of dangerous executive overreach. Now what?
U.S. Supreme Court Justice Antonin Scalia died at 79 Saturday after 30 years on the Supreme Court. His death removes a conservative stalwart from the bench and also throws the affairs of the country’s highest court into upheaval.
Obama has already said he’ll tap a successor, and the Republican-controlled Congress has signaled its intent to block any nomination until inauguration of the next president. In the interim, here’s the answers to several burning questions about the situation moving forward:
How will Scalia be replaced?
Under the Constitution, the president has the power to nominate new Supreme Court justices, who then must be confirmed by a majority of the Senate. Traditionally, Supreme Court vacancies haven’t lasted long, with a new justice being confirmed within about three months nomination. Most recently, it took almost exactly three months to confirm Elena Kagan as a replacement for John Paul Stevens, while Sonia Sotomayor took two-and-a-half months for approval as David Souter’s replacement.
Can Republicans actually block the nomination?
It’s purely a question of party unity and willpower. With 54 Republicans in the chamber’s majority, it would take at least 4 defectors to simply let an Obama nomination be confirmed in an up or down vote. Even if those votes could be found, Republicans can still employ the filibuster, which would require 60 votes to end debate on Obama’s nomination.
On the other hand, a commitment to delay would require blocking an Obama nomination for nearly a year, a degree of deliberate obstructionism that could alienate moderate voters. That could tempt Republican senators in tough reelection races, like Mark Kirk of Illinois, to support an Obama nominee.
Would a yearlong delay be the longest Supreme Court vacancy ever?
No. While some have already begun bemoaning the “constitutional crisis” inherent in being unable to appoint a new Supreme Court justice, a yearlong vacancy wouldn’t even come close to being the longest one ever. In the 1840s, the Senate repeatedly rejected various nominations made by President John Tyler, resulting in the Court having a vacancy for whopping 27 months.
What happens to existing Supreme Court cases? Are they stopped until the Supreme Court is back to full strength?
The Supreme Court will continue to accept, hear, and rule on cases like normal, despite its shorthanded status. Importantly, any vote Scalia made on cases that haven’t come to a decision issued are now void, meaning some 5-4 cases could potentially be turned into 4-4 ties.
What happens if a Supreme Court decision is a tie?
In the case of a tie, the judgment of the previous court to hear the case is upheld.
What are some cases that could be affected by Scalia’s death?
Several close cases could be affected due to Scalia’s absence from the court, by either changing the outcome or causing the decision to include a different justice:
Friedrichs v. California Teachers Association: This case deals with whether public sector unions have the right to impose agency fees on non-union members to cover the costs of collective bargaining. Prior to Scalia’s death, it seemed reasonably likely that the Court would reverse prior precedents and abolish agency fees for the public sector. But now it’s hard to imagine that result being achieved, as getting to five votes would require the defection of one of the Court’s four liberal justices. A 4-4 tie would default to the decision of the Ninth Circuit Court of Appeals, which had ruled in favor of the California Teachers Association based on existing precedent.
U.S. v. Texas: This case is the challenge by several state governments against President Obama’s 2014 executive order protecting millions of illegal immigrants from being deported. In this case, the Fifth Circuit Court of Appeals ruled against the Obama administration. As such, if Scalia was part of the group voting against Obama (as seemed likely), his death won’t change the outcome of the case, as a 4-4 tie would default back to the Fifth Circuit’s judgment. However, a tie would mean the Court would be unable to issue a broader ruling about how much executive discretion exists on immigration.
Evenwel v. Abbott: This case, coming out of Texas, concerns whether state legislative districts must be drawn while taking into account only the population of eligible voters, or if those unable to vote (such as non-citizens, convicted felons, and children) should be counted as well. The previous ruling by a U.S. District Court for the western district of Texas ruled that all voters should be counted, so a tie would affirm that ruling.
Whole Women’s Health v. Cole: A third case out of Texas, this case concerns the legality of tough new abortion restrictions the state passed in 2013, which led to the closure of about half the state’s abortion clinics. The Fifth Circuit Court of Appeals mostly upheld the law, so a tie would would keep most of it in place. But Scalia’s death means there is no potential for a 5-4 decision substantially rolling back abortion rights.
Fisher v. Texas: Yet another Texas case, this one is a repeat of a 2013 challenge to the legality of affirmative action. Notably, this case was already down to eight justices because Elena Kagan had recused herself due to working on the case as solicitor general. Scalia’s death brings the Court down to seven justices, meaning a 4-3 decision on the legality of affirmative action is likely.
Zubik v. Burwell: This case challenges the Obama administration’s attempted accommodation of religious groups on the Obamacare birth control mandate. The Obama administration compels religious non-profits to file a form that compels their insurers to provide birth control free of charge, which said non-profits say violates their religious freedom. The Third Circuit Court of Appeals held that the administration’s accommodation did not infringe on religious freedom, and with Scalia gone that ruling will likely be affirmed.
Who are some potential candidates Obama may nominate as Scalia’s replacement?
President Obama has many potential nominees to choose from, making a specific prediction difficult, but here are some judges whose names have frequently been suggested as potential nominees:
Sri Srinivason: Srinivason currently sits on the D.C. Circuit Court of Appeals, frequently seen as a stepping stone to the Supreme Court (John Roberts, Ruth Bader Ginsburg, Clarence Thomas, and Scalia himself are all alumni). He would be the first Indian on the Supreme Court, and has been seen as a leading candidate for a nomination for years. Prior to joining the D.C. Circuit Srinivason served as Obama’s principal deputy solicitor general. Srinivason’s short time on the bench means his own views on legal matters aren’t perfectly clear, but he’s regarded as a relatively moderate option for Obama, one the president may use to try breaking down the GOP’s willingness to hold out until the next president. Srinivason will turn 49 in two weeks, meaning that if confirmed a 20 or even 30-year stay on the Court is possible.
Paul Watford: Watford is a judge on the Ninth Circuit, appointed to that position by Obama in 2012. Like Srinivason, Watford is regarded as somewhat moderate, so he may be a likely nominee if Obama genuinely hopes to attract some Republican defectors and get a new justice on the Court. Watford would be the third black justice on the Court, and he is currently only 48 years old.
Patricia Ann Millett: Another resident of the D.C. Circuit, Millett was previously notable as one of the judges whose nominations prompted Harry Reid to use the so-called “nuclear option,” repealing the use of the filibuster for non-Supreme Court judicial nominees. Miller is currently 52 years old, and previously worked in the solicitor general’s office, where she argued several dozen cases before the Supreme Court.
David Barron: Barron became a judge on the First Circuit in 2014, and is one of the most controversial nominees Obama could make. While working in the Justice Department, Barron authored a secret memo that justified the drone strike which killed U.S. citizen Anwar al-Awlaki. Not only did no Republicans support his circuit court nomination, but two Democrats opposed it as well. Barron is also a white male who gives Obama little in the way of a diversity bump. On the other hand, Barron is seen as solidly liberal, so if confirmed he would likely provide one of the biggest shifts Obama could hope for away from the judicial philosophy of Scalia. Like Watford, Barron is just 48 years old.
Loretta Lynch: Currently serving as attorney general, Lynch would be the first black woman on the Court, and could potentially be used as a political weapon by President Obama if he thinks the GOP is likely to obstruct him. That’s especially the case because 10 Republicans who voted to confirm her as attorney general would now have to justify keeping her off the Court. Like Kagan when she was nominated, Lynch would have no prior judicial experience. At 56, she’d also be older than several other candidates, meaning her stay on the Court would likely be shorter.