Almost immediately, speculation began about the sudden vacancy on the Court and what it might mean. There are three areas to consider: 1) how this will affect the Court’s decisions on such legal issues as civil rights, abortion, labor, the environment, the Affordable Care Act, affirmative action, immigration, voting rights, energy, and campaign finance; 2) how the nomination of Scalia’s successor will be handled; and 3) how the Supreme Court’s importance as an issue in the 2016 elections will be affected.
The Work of a Divided Court
Generally speaking, recent Court decisions have reflected a 5-4 ideological split between the conservative majority and liberal minority. Of course, there are significant exceptions to this rule, such as in two recent cases when conservative Chief Justice John Roberts was the deciding vote preserving much of the Affordable Care Act. Only about a quarter of Supreme Court decisions are 5-4; most are unanimous. Not surprisingly, however, some of the most closely watched decisions are also the most contentious.
According to the Los Angeles Times, cases where the justices are most likely to be split include: the president’s executive action on deportation relief, affecting more than 4 million people; how populations are counted when mapping election districts; whether Catholic charities and other religiously affiliated groups may opt out of providing employees certain contraceptives; the constitutionality of state medical regulations affecting abortion clinics; and whether unions may charge mandatory fees to nonunion members. The decisions in each of these cases may be affected by Scalia’s no longer participating. Another case, involving affirmative action in university admissions, may not be affected because Justice Elena Kagan had already recused herself, now resulting in a potential 4-3 decision if the Court’s remaining conservatives vote as a bloc.
One historical role of the U.S. Supreme Court is to arbitrate different interpretations between lower courts. The current 4-4 split makes it potentially much more likely that cases awaiting decision by the Supreme Court will allow lower court rulings to stand, regardless of what those rulings are. Simply put, when the Court vote results in a tie, nothing changes. This also means that the law may well be interpreted differently in different parts of the country because two U.S. Circuit Courts of Appeals may decide the same question in different, or even opposite, ways. Although more rare, sometimes the Supreme Court is asked to decide issues of Constitutional rights interpreted differently by different states’ courts or arbitrate disputes between states. Those issues also may be delayed due to the 4-4 split.
It is likely that the eight remaining justices will seek ways to avoid paralyzing 4-4 ties by negotiating decisions that a majority can sign on to. This tactic will allow more of the Court’s pending work to continue, but it may result in decisions that are limited in scope and unlikely to make big changes in the rights and liberties of citizens, governments, or other constituencies.
Decisions already announced by the Court remain in force. Scalia’s votes on cases not yet announced are invalidated and will need to be reviewed by the remaining justices. The Court may decide to “hold over” some contentious cases, asking litigants to come back next year when there will once again be nine justices serving on the Supreme Court. So, when will that be?
Nomination of a Successor in an Election Year
In an episode of the TV series The West Wing, a liberal Supreme Court justice dies and the president frets that a conservative senate won’t approve a progressive successor. Through a plot twist, a conservative vacancy is also created, allowing the president to partially satisfy both sides by nominating a liberal and a conservative simultaneously.
Without such a convenient script, the appointment of Scalia’s successor has already become an issue where implacable positions have been staked out. President Obama pledges to nominate a successor this year. Senate Majority Leader Mitch McConnell (R-TN) and other GOP Senate leaders insist the Senate will not take up a nomination until a new president is inaugurated in 2017. Republicans point out that it has been more than 80 years since a Supreme Court nomination made during an election year was confirmed by the Senate. Democrats point to Anthony Kennedy’s confirmation in 1988, but that was subsequent to a vacancy in 1987. Some refer to the Senate’s “Thurmond rule,” which forestalled action on all judicial appointments in the last six months of a presidential term. Over time, the custom referred to as a “rule” has been expanded to encompass the last year, and Republicans are insisting that the custom be honored in this case.
Another challenge facing the president when seeking a successor for Scalia is that some of the likely nominees may not want to submit themselves to such an overtly political fight with little or no chance of success. They may choose to wait for the election outcome and preserve the possibility of being nominated by Obama’s successor, should that successor be a Democrat. No one wants to be labeled “damaged goods” in a nomination battle, regardless of the reason.
This “damaged goods” argument might be especially compelling should the president attempt to make a “recess appointment” to the Court, as explored by SCOTUSblog. The president and the senate have wrangled over the practice of recess appointments in recent years, culminating in a 2014 Supreme Court decision that represents a compromise between the executive and legislative branches. It appears that a recess appointment would likely be met with another legal challenge as to what constitutes “legislative business” and whether the “adjournment resolution” is sufficient to meet the requirements of the 2014 Court decision. Anyone named to a recess appointment would likely be denied confirmation by the senate when the recess appointment term expired, even if they were nominated by the next president.
For a variety of political, ideological, procedural, and personal reasons, action being taken by the Senate on any nominee during 2016 is very unlikely.
The Importance of the Supreme Court as a 2016 Election Issue
Passionate advocates for all kinds of issues and constituencies have long understood the importance of the composition of the U.S. Supreme Court to the success of their causes. One frustration of many of these advocates is that, simply put, few people actually vote for presidents or senators based on perceptions of the Supreme Court. In other words, the potential for change on the Supreme Court motivates some single-issue voters and movement leaders, but it doesn’t motivate voters generally.
According to a Gallup poll from September 2015, Americans disapprove of the Supreme Court by a margin of 50 percent to 45 percent. Almost twice as many Americans believe the Court is too liberal rather than too conservative (20 percent versus 37 percent). Forty percent of Americans polled by Gallup last September believe the Court’s ideological balance is “about right.” These poll results further indicate that appeals to voters in general based on the Supreme Court are likely to be less successful than appeals based on other issues and concerns.
Among the ranks of passionate advocates, however, one must include donors. Less than 24 hours after Scalia’s death, the Democratic Party was sending out fundraising appeals based on change in the Supreme Court. MoveOn.org has contacted its members, asking them to sign a petition to support a timely confirmation vote. Expect other appeals soon from the breadth of conservative and progressive causes and organizations. Suddenly, there is a new reason to mobilize campaigns related not only to the presidency, but also to the U.S. Senate. The president nominates and the senate majority confirms.
The issue of the senate majority is an important one. Senate Democrats exercised the “nuclear option” in 2013, changing senate rules to allow most executive and judicial nominations to be confirmed by a simple majority of Senators. Supreme Court nominations currently still require a filibuster-proof 60 votes for confirmation. In theory, if Democrats control both the presidency and the senate in 2017, the “nuclear option” may be invoked by Democrats once again to change Senate rules to allow for confirming Supreme Court nominations with 51 votes.
2016 is seen as a comparatively good year for Democrats to challenge Republican control of the senate. More Republican senators than Democrats are seen as vulnerable, and the presidential election provides additional resources (volunteers, party financial support) especially valuable to challengers. Of course, 2016 is a very unusual political year, so the typical assumptions may not apply. It was only months ago when the conventional wisdom assumed that Hillary Clinton and Jeb Bush had their party nominations sewn up, with massive fundraising, large organizations, and party leadership support. Both political parties now feature “outsider” candidates who are leading or rivaling the “establishment” candidates, attracting many votes and much money while the political parties themselves wonder about their continuing role in managing elections.
Where will donors and volunteers put their money and time, and how will those decisions be affected by the looming fight for the Supreme Court? Will a new crop of 501(c)(4) social welfare organizations pop up to support and oppose candidates based on their organizers’ goals for the Court’s future? Will donors focus on the Presidency as a way to influence nominations, or will they shift their money to Senate races in an attempt to influence confirmations?
Before Scalia’s death, causes generally associated with progressive or liberal politics were most concerned about change on the Supreme Court. Ruth Bader Ginsburg’s poor health and age (82) made her appear to be the justice most likely to next leave the Court due to death or resignation. Entreaties were made to her to stay on the Court until a “safe” successor could be nominated and confirmed. With Scalia’s passing, however, a window opens for these advocates to assume a proactive strategy and force conservative advocates to play defense and, once again, appear obstructionist. The window won’t remain open indefinitely, as Justices Ginsburg, Breyer, and Kennedy—two liberals and the “swing vote,” respectively—are now the three oldest serving members of the Supreme Court. Clarence Thomas, now the oldest of the Court’s conservatives, is only 67.
Justice Scalia’s sudden death has left the Supreme Court, and the country, facing yet another contentious manifestation of its ideological divide precisely when that ideological divide is rendered in sharp focus by impending elections and relentless campaign media coverage. There is little or no incentive for anyone to compromise on a successor, and many reasons for candidates, advocates, and partisans to use a nomination fight as a way to attack one’s political opponents and their beliefs. Most voters will notice the noise, but won’t care. Some candidates, lobbyists, and advocates will capitalize on the fight to attract donors and their money to use both in support and opposition to presidential and senate candidates.
In the meantime, the remaining eight justices will do as much of the Court’s work as they can. However, some of the most contentious issues may be deferred until a ninth justice is confirmed, and some of the Court’s decisions in the meantime will be characterized as “small ball” compromises without definitive national impact. To Congress and others who have relied on the Court to “fix” legislation and provide interpretation, the Court may be unavailable for a while, returning focus to Congress itself as the place where such determinations are made…or, more likely, not made.