[EL] Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation
Rick Hasen
rhasen at law.uci.edu
Sat Feb 13 14:49:00 PST 2016
Justice Scalia’s Death and Implications for the 2016 Election, the
Supreme Court and the Nation <http://electionlawblog.org/?p=79915>
Posted onFebruary 13, 2016 2:29 pm
<http://electionlawblog.org/?p=79915>byRick Hasen
<http://electionlawblog.org/?author=3>
Justice Antonin Scaliahas died in Texas
<http://www.politico.com/story/2016/02/breaking-news-supreme-court-justice-antonin-scalia-dead-at-the-age-of-79-219246#ixzz405b9iFAQ> at
the age of 79. Let me begin with condolences to his family, friends,
and former clerks who were fiercely loyal to him (and he to them).
Whatever you thought of Justice Scalia’s politics and jurisprudence, he
was an American patriot, who believed in the greatness of the United
States and in the strength of American courts to protect the
Constitution’s values as he has seen them. He also wrote the most
entertaining and interesting opinions of any Justice on the Court.
I was just in the early stages of a project to evaluate Justice Scalia’s
legacy, and I will have much to say later on about Justice Scalia’s
impact on the judiciary where his views on constitutional originalism
and new textualist statutory interpretation have have played a key role
in the development of American jurisprudence and argumentation in the
federal courts.
But let’s begin here with the implications for the Court’s current term,
its impact on the 2016 election, and on the Nation as a whole.
/*The Court’s current term. */The Supreme Court has been divided in
recent years between liberals and conservatives, and more recently
between Republican-appointed Justices (all conservative) and
Democratic-appointed Justices (all liberal). There are a number of key
cases coming to the Court where the Court was expected to divide 5-4 on
issues ranging from abortion, to affirmative action, to labor union
power, to the President’s power over immigration and energy policy, to
voting rights. While there is a vacancy on the Court, many of those
cases would now be expected to divide 4-4, which would lead the Court
perhaps to dismiss the cases by an equally divided court, leaving lower
court opinions standing—whether than opinion pointed in a liberal or
conservative direction. Some of those cases could perhaps be delayed for
appointment of a new Justice, a Justice that could potentially swing the
Court from a 5-4 conservative majority to a 5-4 liberal majority. But
that assumes that President Obama could nominate a liberal who could get
confirmed by the Republican Senate. I think that’s fairly unlikely. Let
me turn to that point.
/*A replacement by President Obama*//*?*/**It would be good for the
Court as an institution to have a full complement of Justices, so that
it does not divide 4-4 and can get the people’s business done. However,
President Obama is coming toward the end of his term, and would need to
get an appointee through the Senate Judiciary Committee. In the best of
times, this is a process that takes months. But this is not the best of
times. This is a highly polarized time, and strong conservatives will
fight VERY hard to have Republicans block a liberal appointment to the
Court. So the Obama administration faces something of a choice. Nominate
a hard-core liberal who could be filibustered by a Republican Senate, or
nominate someone more moderate (Judge Garland?) who could PERHAPS get
confirmed if enough Republicans would be willing to go along. That’s no
sure thing at all. One reason for nominating a strong liberal would be
to make the issue more salient in the Presidential election. So let me
now turn to that.
/*The Supreme Court as a 2016 Presidential campaign issue*/*. *A few
months ago, before the death of Justice Scalia, I wrote the following
atTalking Points Memo
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>:
The future composition of the Supreme Court is the most important
civil rights cause of our time. It is more important than racial
justice, marriage equality, voting rights, money in politics,
abortion rights, gun rights, or managing climate change. It matters
more because the ability to move forward in these other civil rights
struggles depends first and foremost upon control of the Court. And
control for the next generation is about to be up for grabs, likely
in the next presidential election, a point many on the right but few
on the left seem to have recognized.
When the next President of the United States assumes office on
January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84,
Justices Antonin Scalia and Anthony Kennedy will be over 80, and
Justice Stephen Breyer will be 78. Although many Justices have
served on the Court into their 80s and beyond, the chances for all
of these Justices remaining through the next 4 or 8 years of the
45th President are slim. Indeed, the next president will likely make
multiple appointments to the Court.
The stakes are high. On non-controversial cases, or cases where the
ideological stakes are low, the Justices often agree and are
sometimes unanimous. In such cases, the Justices act much like lower
court judges do, applying precedents, text, history, and a range of
interpretative tools to decide cases. In the most controversial
cases, however—those involving issues such as gun rights,
affirmative action, abortion, money in politics, privacy, and
federal power—the value judgments and ideology of the Supreme Court
Justices, and increasingly the party affiliation of the president
appointing them, are good predictors of each Justice’s vote.
A conservative like Justice Scalia tends to vote to uphold abortion
restrictions, strike down gun restrictions, and view the First
Amendment as protecting the right to spend unlimited sums in
elections. A liberal like Justice Ginsburg tends to vote the
opposite way: to strike down abortion restrictions, uphold gun laws,
and view the government’s interest in stopping undue influence of
money in elections as justifying some limits on money in politics.
This to not to say it is just politics in these cases, or that these
Justices are making crassly partisan decisions. They’re not. It is
that increasingly a Justice’s ideology and jurisprudence line up
with one political party’s positions or another because Justices are
chosen for that very reason.
Especially if Senate Republicans block a liberal appointee to the
Supreme Court, this has the potential to inject this issue into the
Presidential campaign. And it will work both ways. You can bet that Ted
Cruz will be running on a platform to replace Scalia with more and more
Scalias. This could finally be the election that brings the Supreme
Court into national focus much more (it has not been mentioned so far in
any of the presidential debates I’ve seen). You can listen to UCI Law
Dean Erwin Chemerinsky discuss the implications of the changing Supreme
Court with Dahlia Lithwick onSlate’s Amicus podcast.
<http://www.slate.com/articles/podcasts/amicus/2016/02/the_supreme_court_and_the_2016_presidential_elections.html>
/*The Implications for the Nation of a changing Supreme Court*/*. *There
is so much at stake concerning the Supreme Court for the next few years.
As I wrote in /Plutocrats United/,
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>the
easiest way to amend the Constitution to deal with campaign finance
disasters like the Supreme Court’s opinion in Citizens United is not to
formally amend the Constitution, but instead to change the composition
of the Supreme Court. Regardless of what happens with Justice Scalia’s
replacement, there will be likely at least three other Justices to be
appointed over the next 4-8 years of the next President’s term. The
stakes on all the issues people care about—from abortion to guns, from
campaign finance and voting rights to affirmative action and the
environment, depend upon 9 unelected Justices who serve for life.
Ed Whelan (a strong conservative, and former Scalia clerk) and I will be
doing a webcast onThe Supreme Court and the 2016 Elections
<http://www.law.uci.edu/events/election-law/scotus-elections-2016feb22.html>on
Feb. 22. I’m sure these issues will be hotly debated, as moderated by
my colleague (and former LA Times legal correspondent Henry Weinstein).
The kind of battles we will see over the fate of our Nation, enacted in
the polarized Congress and in a polarized nation, will be epic. The
stakes are high, and as I explain in Plutocrats United, depending on
conditions we could see a vacant Supreme Court for a while (look for
conservatives to argue over that) and likely the end of the filibuster
for Supreme Court nominees (look for that if there is unified control of
the Presidency and Senate, but without a filibuster proof majority.)
As I said at TPM, this is the moment. It is the beginning of the most
important civil rights debate of our time.
[This post has been updated.]
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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