Scalia’s Replacement

Dana Ettinger, JHU:

News of Supreme Court Justice Antonin Scalia’s death broke on Saturday, February 13th. Scalia, a Reagan appointee, was one of the most outspoken conservative justices on the highest court in the United States. His death leaves an empty spot on the court, something both political parties immediately seized on. Senate Majority Leader Mitch McConnell invoked something called the “Thurmond Rule,” an unwritten rule that a president shouldn’t appoint a justice to a lifetime position in the last six months of his (or her) presidency. He was joined by Ted Cruz and Donald Trump in calling on President Obama to abstain from filling the vacancy and to allow the next President to make the appointment. The President responded by vowing to appoint a replacement and have it confirmed.

Supreme Court nominations, confirmations and appointments are highly contested, and filled with political tension. As the Court has sunk lower and lower into partisanship in recent decades, the process has become as much of a political battleground as legislative and presidential elections in swing states. However, despite their polar opposite views, Scalia was close friends with another on the Court: Ruth Bader Ginsberg. In statements Ginsberg has made both in the past and in the wake of Scalia’s death, she referred to him as a good friend, and praised him as a judge. She also mentioned that the Court opinions she wrote were better when Scalia dissented.

Their odd couple dynamic baffled and delighted many in the DC circuit. It also spoke to a now bygone era in which liberals and conservatives could disagree vehemently without hating one another personally. In today’s political climate, Scalia’s replacement will likely have stick to his or her side of the aisle, rather than reaching out to make friends.

Senator McConnell and those who have echoed his views have good reason to want to delay the confirmation of the new justice. Their hopes of a Republican win in November make them optimistic that the new president would appoint someone to continue Scalia’s intensely conservative legacy.

Ironically, their desire to maintain that legacy has led them to ignoring another component – Scalia’s strict originalism. Originalism is the theory that the Constitution is not meant to be interpreted or adapted to fit the politics of the moment, but rather that it should be taken as the Founders intended. It is the constitutional equivalent of Biblical literalism, and rejects the notion that the Constitution is a “living document,” to be adapted as the times see fit.

John Oliver made the point – along with a sharp jab at Scalia’s record on abortion – on his Sunday broadcast. While there is likely to be criticism over Oliver’s highly political comment so soon after Scalia’s death, it brings up a valid point. The Supreme Court docket for the next few months will see several highly contentious cases, many of which will retread old ground and potentially change established precedents.

Most relevantly, the 8-member Court will review Whole Woman’s Health v. Cole, widely recognized as the most significant abortion case to be tried since Planned Parenthood v. Casey. The case will focus on what constitutes an “undue burden” on women’s ability to obtain an abortion. At issue are the stringent requirements imposed on facilities that perform abortions by anti-choice legislatures. The case in question is from Texas, where the regulations are so numerous that if the Court rules that they are constitutional, the number of providers will shrink from 42 to 10. In a state the size of Texas, that means that there would only be 1 clinic for every 1,267,328 women.

In Scalia’s absence, the Court is seemingly split in half down partisan lines: Justices Alito, Thomas, Roberts, and Kennedy form the conservative half while Justices Breyer, Sotomayor, Kagan, and Ginsberg represent the liberal component. However, Kennedy has been known to vote along more liberal lines when it comes to social issues. He is frequently the swing vote in 5-4 decisions. Given his history of a fairly liberal bent when it comes to abortion, it is very likely that he’ll join with the liberal justices in ruling against tighter restrictions. Before Scalia’s death, the decision would have likely been fiercely debated amongst the justices. Kennedy may or may not have been swayed from his cautiously liberal stance. In Scalia’s absence, however, a 5-3 decision seems much more likely.

In a similar vein, Zubik v. Burwell will also have a very different outcome. This latest challenge to the Patient Protection and Affordable Care Act (Obamacare) is focusing on the contraception mandate for religious institutions. The case is a balance of women’s health rights and religious liberty, something about which Justice Scalia would have been very vocal. In the Hobby Lobby decision in 2014, in the Court ruled that “closely held” businesses could be exempt from the contraception mandate on the grounds of religious objection. In lower courts, all but one (the 8th Circuit Appeals Court) held in favor of the government in the most recent challenge. The one appeals court that objected might have created a genuine threat to that portion of the healthcare law; without Scalia, the conservative elements on the Court might not be enough to follow in the 8th Circuit’s footsteps.

In all of the cases to be determined this session, the Court’s opinions will be poorer for lack of Justice Scalia’s colorful dissents. The forthcoming liberal tilt to the Court will also highlight his conservative legacy in his absence.

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