Justice Scalia’s Death And The Future Of The Supreme Court

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Antonin Scalia died at a West Texas ranch south of Marfa on Saturday. His death ignited a political war. And some suggested he was murdered, really?

Partisan warfare erupted within minutes between leaders of the Republican and Democratic parties about when — even if — a new justice should be nominated. Lists of possible candidates were published and vetted.

Justice Scalia was the longest serving justice on the Supreme Court, having been appointed by President Reagan 30 years ago. He was ranked as the third most conservative, behind Justices Thomas and Alito.

Justice Scalia was known, even revered, for his staunchly conservative rulings, emphasis on the original meaning of the Constitution, and often bitter dissents.

What effect will this rare election year vacancy on the polarized Court have on Americans? From current undecided cases to the very future of the Court itself, the justice’s death has set off a constitutional crisis not seen since Robert Bork’s unsuccessful nomination in 1987. 

Effect on the Liberal-Conservative Balance of Power

Several recent ground breaking decisions have been decided by 5-4 splits. As of today, the court is evenly balanced 4-4 or even 5-3 in favor of liberals, depending on Justice Kennedy’s unpredictable vote, so many split decisions with no precedential value may be common. 

But two of the liberal justices, Ruth Bader Ginsburg (age 82) and Stephen Breyer (age 77) and unpredictable Anthony Kennedy (age 79) are elderly. 

When they retire or die, the Court would tilt towards the right if the new president is a Republican. He could set a record by naming four new justices in his first term. 

These new justices would guarantee 7-2 decisions that reverse decisions concerning abortions, same sex marriages, the Affordable Care Act, immigration, criminal sentencing, and a host of other lightning rod cases. 

A Democratic president could achieve a 5-4 and possible 6-3 tilt to the left, making the Court the most liberal is has been since President Franklin Roosevelt’s appointments during the Great Depression.

The stakes for setting the direction of the highest court of the land have never been higher in our lifetimes.

All this while the justices are supposed to be above party politics.

Justice Scalia, who is reported to have been in excellent or poor health, would have turned 80 next month. A mandatory retirement age — perhaps 75 — needs to be considered to prevent the country from lurching into a political crisis the next time a justice dies.

Effect on Current Docket

The Supreme Court has already heard oral arguments on a myriad of contentious issues this term including voting rights, unions, environmental regulation, class actions, and the long-running affirmative action/college admissions case that originated at my alma mater (Fisher v. University of Texas II).

Other cases will decide the number of abortion clinics in our state (Whole Women’s Health v. Cole) and a religious liberty vs. Affordable Care Act case (Zubik v. Burwell).

The Court has a quandary. If it hasn’t already announced decisions that Justice Scalia participated in, a case on appeal will be automatically affirmed but it will have no precedent-setting value. Or the Court can reset these cases to next year’s term which begins in October, but with (presumably) only eight justices hearing arguments.

I hope that there is a quick appointment of a fair-minded justice whose rulings are not dogmatic and who supports all Americans access to the courts. 

Who Should Be The Next Justice?

But to do that, the president will have to find a man or woman who the Republican majority will support — good luck with that . And to add real diversity, that person would not be (a) a graduate of Harvard or Yale law school, (b) a liberal or conservative, (c) a Catholic or Jew, (d) born in New York City, (e) served as a justice on one of the courts of appeal along the eastern seaboard, and (f) practiced law. That task is daunting. But most, if not all, of the nine justices were from those almost identical backgrounds. 

This is exactly what Justice Scalia called for in his blistering dissent in Obergefell v. Hodges, the Court’s  5-4 landmark decision last June legalizing same sex marriages.

Never one to mince words, the justice attacked the majority opinion for “lacking even a thin veneer of law” and for “descending to the mystical aphorisms of the fortune cookie.”

Filling the shoes of this legal giant will be impossible.  Let’s hope a qualified person is chosen soon and that this chaos does not continue.




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