No doubt Scalia’s passing may have an effect on a number of cases pending before the Supreme Court this term, on issues from whether President Obama exceeded his immigration powers to the ability of public sector unions to collect fair share payments from non-members, to abortion rights and climate change. In cases that were 5-4, with Scalia in the majority with other conservative justices, those cases may well now be 4-4. In such a tie, the Court can dismiss the case, leaving the lower court ruling standing and setting no precedent, or it might hold the case for a future justice to join the Court, or decide the case in a way which ducks the important issues.
And Scalia’s absence in future years could matter on issues not currently before the Court but likely to return, from gun rights to campaign finance reform to voting rights. Especially if Obama is able to nominate a jurist who would vote like his other nominees, Elena Kagan and Sonia Sotomayor, things could shift rather dramatically.
But that assumes that the other members of the Court remain the same. While that could well be true for the rest of Obama’s term, more change is likely. As I’ve written, “When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, … Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78.”
Think of the Scalia battle not as a hurricane, but as the first in a series of storms that will come through our increasingly polarized Congress. And with all the liberals on the Court now appointed by Democratic presidents, and all the conservatives on the Court now appointed by Republican presidents, we can expect the nominations process to be much more partisan and polarized than it has been in the past. The series of storms will put great stress on our system of separation of powers when we are so divided.
It is true that key questions that are among the most important to our nation are in the hands of 9 unelected justices, and that Scalia’s replacement will be significant. But no matter who gets to replace Scalia, there will be more opportunities to fight for control of the Court in the years to come.