[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 20:05:14 PST 2016
SCOTUSBlog explainer:
http://www.scotusblog.com/2016/02/what-happens-to-this-terms-close-cases/
On 2/13/16 8:00 PM, George Korbel wrote:
> So am I correct that in no case will his vote count unless that has
> not been made public before his passing
> I argued a case before the fifth circuit some years ago one of my
> judges passed away fro a PE on his way back from an African vacation.
> The case was decided favorably by the two remaining justices.
>
> A remarkable situation we find ourselves in.
>
> Sent from my iPhone
>
> On Feb 13, 2016, at 4:50 PM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
>>
>> 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.]
>>
>> <share_save_171_16.png>
>> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79915&title=Justice%20Scalia%26%238217%3Bs%20Death%20and%20Implications%20for%20the%202016%20Election%2C%20the%20Supreme%20Court%20and%20the%20Nation&description=>
>> Posted inPlutocrats United
>> <http://electionlawblog.org/?cat=104>,Supreme Court
>> <http://electionlawblog.org/?cat=29>
>>
>> --
>> 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
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
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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
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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