Justice Scalia

Justice Scalia was a giant among giants.  It is not an exaggeration to say he was the most influential Supreme Court Justice in the past 30 years.  Whether you agreed with him or not, his importance cannot be underestimated.  

Because there have been various questions swirling around the implications of his death, I thought I would provide some answers here.

1.  What does this mean for current cases pending before the Court? The Court is now an 8-member institution.  (Tom Goldstein of SCOTUSBlog provides some thoughts on this point here.)  Even if a decision was about to be issued, it no longer has Justice Scalia's vote.  This will not make a difference for many cases, which were not going to come down 5-4.  But it could make a BIG difference in the BIG cases this term, such as Evenwel (one-person, one-vote), Friedrichs (union contributions), and U.S. v. Texas (immigration).  These cases are now, suddenly, a potential 4-4 split.  That would have the affect of affirming the lower court, without a controlling precedent from a majority. [Update: Tom Goldstein now thinks that these cases might be set for re-argument once there is a new Justice instead of having an affirmance by an equally divided Court.]  (Fisher, the affirmative action case, now has 7 Justices deciding it, as Justice Kagan is recused, so it could potentially come out 4-3, depending on Justice Kennedy's vote.)  For instance, if Justice Scalia was going to vote with the other conservatives in Evenwel, and require states to use only citizen-voting-age-population as the count for drawing district lines, now that case will be 4-4, which will change the outcome and affirm the lower court's decision allowing Texas to choose total population instead.

2.  What does this mean for a potential Obama appointee?  Senator Mitch McConnell has already said that he will not support the Senate considering any Obama appointee.  Senator Patrick Leahy has said that "It's only February," and that the Senate should do its work of confirming a new Justice.  So this will be a huge political battle.  In my view, regardless of the politics, Senator Leahy is correct here.  Senator McConnell said that "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."  I thought we all had a say in 2012 when we elected President Obama and in 2014 when we elected the current Senate.  

If Obama does want to nominate someone, he'll likely have to go with a moderate pick who can make it through the Republican Senate. Various names have already been suggested. (Here's another one to consider: I'm biased, because I clerked for him, but Judge Ed Prado on the 5th Circuit seems like a great pick!  He has been a U.S. attorney, district judge, court of appeals judge, and was appointed by two Republican Presidents.)

3.  What does this mean for the 2016 election?  This is huge.  Assuming President Obama is not able to nominate a new Justice, then the Supreme Court has just become the biggest issue in the presidential election campaign.  This is a good thing; the longest-lasting legacy of any President is the Justices (and lower court judges) that President appoints.  It's about time the American people begin paying attention.  This is not to say that Justice Scalia's passing is a good thing.  Not at all.  He was a great Justice, regardless of one's views of his opinions.  But the implications now are that the Supreme Court will loom large over the election, and that itself is a positive.

4.  What does this mean for the public's view of the Court? The Court prides itself on being the least political branch. Even though many decisions are seen as ideological (Bush v. Gore, Obergefell, etc.), the public's perception of the Court has generally remained fairly positive.  And the Justices vigorously try to protect that image -- that politics do not play into the Court's decisions.  So a negative of the Court becoming a big issue in the 2016 election is that the public's perception of the Court as apolitical will likely diminish.

5.  What does this mean for Justice Scalia's legacy? As I wrote earlier, Justice Scalia was a giant among giants.  We teach textualism and originalism much more meaningfully now because of his contributions.  He loved the law, and he made Court and its decisions so much better (not to mention so much more fun to read!).  (As someone who often disagreed with him, I know he was at least correct this term in Shapiro, when he wrote for a 9-0 Court in an election law case in which I wrote an amicus brief!)  This is truly a huge loss for our country.