Justice Scalia Has Died. Now What?

With Justice Scalia’s shocking death on Saturday, observers of the Court have been buzzing about what the future holds for the Court.

First, who will be his replacement?

When Obama began his first term in 2009, his staff drew up a list of names that could replace potential vacancies on the Court. Only five months into his presidency, Obama nominated Sonia Sotomayor as his nominee to replace the retiring Justice David Souter. That announcement came on May 26, the nomination was submitted to Congress on June 1, and Sotomayor was confirmed on August 6, by a vote of 68-31. Sotomayor was joined on the shortlist by Diane Wood, Elena Kagan, and Janet Napolitano. The next year, John Paul Stevens announced he would retire, and Obama was again tasked with finding a replacement. The short list on this occasion included Kagan, Wood, Merrick Garland, and Sidney Thomas. Ultimately, Obama chose Kagan and nominated her in May, and she was confirmed 63-37 in early August.

Diane Wood, it seems, will again be in contention, but she’s older now – 65 years old – and that may a bit too old for a nominee. The last nominee to be at least 60 at their nomination was Ruth Bader Ginsburg, who was 60 in 1993. Breyer, Roberts, Alito, Sotomayor, and Kagan were all in their 50s. Sri Srinivasan, it has been said by the finest of SCOTUS prognosticators, will likely be the nominee. Srinivasan would be the first Indian-American Justice (and, consequently, the first Asian-American Justice). Srinivasan is a judge on the D.C. Circuit Court of Appeals, and his confirmation vote in the Senate was 97-0, meaning he would likely have stronger bipartisan support than most other candidates Obama would nominate. The D.C. Court of Appeals is also the second most powerful Court in the country. Prior to serving as a judge, Srinivasan was the Principal Deputy Solicitor General of the United States. Srinivasan earned liberal credentials by arguing U.S. v. Windsor before the Supreme Court in 2013, which was a major stepping stone for gay marriage rights. But with a MBA from Stanford, he has also defended business interests, including reducing an Enron executive’s prison sentence, in Skilling v. United States, also before the Supreme Court.

It will be tough to gauge how long and how successful this nomination process will be. First, both of Obama’s previous appointments occurred in the first two years of his presidency, before the Tea Party Wave of 2010 removed the magnitude of the Democrats’ stronghold on the Senate. Srinivasan’s 97-0 vote doesn’t reflect how seriously Senators will take a Supreme Court nomination, simply because that position is more consequential than a District Court seat. Plus, since Srinivasan would be replacing a staunch conservative icon, it might be expected that Scalia’s successor leans to the right rather than the left or even down the middle. Additionally, Srinivasan’s appointment was voted on in 2013, after the 2012 election in which Democrats won back more control in the Senate.

A number of Senators, as well as general more extreme conservative leadership, has vowed to prevent a vote from happening, wishing to delay the nomination until after the 2016 election. Senator McConnell, the Majority Leader, has issued the statement, but I would think Ted Cruz, more of an avid Court follower, will lead the charge if he is not too busy campaigning (of course, this effort would be a form of campaigning itself). Ultimately, though, I think too few Republican Senators will follow Cruz’s lead. This election involves many more Republicans trying to be reelected than Democrats, and sustaining the image of a do-nothing legislature can only help the most extreme of conservatives (read: Ted Cruz). In other words, more moderate senators like Illinois’s Mark Kirk and Ohio’s Rob Portman, both of whom are up for reelection this fall, will side with Democrats and vote to confirm. Plus, if the nominee is Srinivasan, or it’s any other minority nominee, the campaign image of a Republican, who already likely has trouble currying the favor of minority voters, voting to filibuster a minority appointee likely won’t be fruitful. Of course, this is the American Congress we’re talking about – a body hardly capable of getting anything done, much less get a Supreme Court nominee confirmed. However, I still have some amount of blind faith that Congress will get it done, somehow. I predict the nomination process will be tough and long, but Srinivasan won’t be polarizing enough to validate any protests by Senators. 

Second, even without Scalia, what will happen this term?

This Supreme Court is shaping up to be incredibly consequential. With issues like voting rights (Evenwel v. Abbott), Affirmative Action (Fisher v. University of Texas – Austin), Mandatory Union Fees (Friedrichs v. California), Redistricting (Harris v. Arizona Independent Redistricting Commission), Immigration (United States v. Texas), Abortion (Whole Women’s Health v. Cole), and ObamaCare’s birth control mandate (Zubik v. Burwell), it’s easy to see how this term could impact many citizens’ lives in a big way going forward. As a rule, if the decision hasn’t been announced yet by the Court, even if Scalia has already voted and written a decision, his decision is voided, meaning all remaining cases will have an 8 vote maximum. Additionally, if a Court comes to a 4-4 decision, they default to affirming the lower court ruling. The Court now has 4 solid liberals (Breyer, Ginsburg, Sotomayor, Kagan), 2 solid conservatives (Alito, Thomas), and 1 moderate conservative (Roberts), and 1 swing vote (Kennedy). Let’s just assume that for all of these cases Kennedy sides with the conservatives, and all the liberals vote together (which is very common anyway) such that there is a 4-4 split. How will the remaining cases be decided?

The circuit court’s decision in Friedrichs supported mandatory union fees, meaning that if there is a 4-4 split, the Court will uphold the practice of making all relevant workers in a job pay for the union regardless of membership legal. Box Score: Liberals 1, Conservatives 0.

In Whole Women’s Health v. Cole, the Appeals Court ruled in favor of a law which has closed about half of Texas’s abortion clinics. With a 4-4 split, that law will stand. Box Score: Liberals 1, Conservatives 1.

In United States v. Texas, the Appeals Court ruled in favor of Texas’s challenge to Obama’s immigration executive action, which would protect around 4 million people from deportation. With a 4-4 split, that executive action will not stand. Box Score: Liberals 1, Conservatives 2.

In Evenwel v. Abbott, the US District Court ruled in favor of representation for all, meaning that everyone living in a district would be counted. With a 4-4 split, that idea of representation, which helps Democrats generally, will stand. Box Score: Liberals 2, Conservatives 2.

In Zubik v. Burwell, the Appeals Court ruled in favor of the Department of Health and Human Services, meaning that ObamaCare’s paperwork-filling-out requirement of those trying to opt out of its contraceptive mandates doesn’t substantially burden religious liberty. With a 4-4 split, that ruling will survive. Box Score: Liberals 3, Conservatives 2.

In Fisher v. University of Texas, there is actually going to be a 7-Justice panel, because Kagan is recusing herself. That decision will likely be a 4-3 vote against Affirmative Action.

Again, of course, this assumes that Kennedy will side with the conservatives on every decision, which is pretty unlikely. Ultimately, we’ll see if he votes with the liberals to make an impact.


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