Scalia weighed heavily on the conservative tilt of the current court, registering as more conservative even than other Republican justices in every field except on international and defense issues. There is no other justice whose replacement would more profoundly affect the court’s orientation. The court’s docket this term shows a clear intent to rule on some of the most contentious issues in the society: abortion, unionization, presidential power, affirmative action, political representation. Nothing in the presidential election in the fall matters more than the ability to shape the court. Now everyone should know that, including an incumbent who once taught constitutional law.
Any nominee, of course, would have to be confirmed by the Republican-controlled Senate. Leaders there, and also most GOP presidential candidates, are already making clear that they intend to block Obama. But they may not realize that leaving Scalia’s seat vacant plays right into his hands.
The court is not yet halfway through the 80 or 90 cases it deals with each term, but many of the most contentious have already been heard. Normally, justices meet the week a case is argued, and vote on the outcome. So they have most likely already voted on pending cases on apportionment and affirmative action, for example. But weeks or months can go by while the justice assigned the opinion circulates drafts. Any justice can change his or her vote at any point during that process, and often does. It’s all very hush-hush, so there is no way to tell how far along the cases Scalia heard are in the pipeline.
There is no constitutional provision, no case law and no official policy about what the court should do with cases that have been argued and voted on when a justice dies. If the vote in a case that hasn’t yet been handed down was 5 to 4, as one might expect with these controversial rulings, can Scalia cast the deciding vote from beyond the grave to change the way America chooses every legislature in the land or integrates its public universities? A court that cares about its image and constitutional role will not rule in the name of a majority that counts on a dead justice, especially on the core issues of American social life. Such posthumous decisions are so unprecedented they would make Bush v. Gore look like responsible judicial behavior. Chief Justice John Roberts, who in matters entirely internal to the court like this wields some extra power, is known for his concern for institutional prestige, and he would be right to weigh in against issuing opinions based on what Scalia did in past conferences.
So in the cases that Scalia was already a part of, what’s most likely is that the court will do what it has done in the rare, similar circumstances in the past, when important cases like abortion were argued and the personnel on the court changed or where a predictable swing justice was out sick: They will order the cases argued again and voted on again.
Of course, the justices will also continue to hear future arguments, but upcoming closely decided cases — such as the abortion case out of Texas also widely predicted to lead to a 5 to 4 vote — will now be tied, 4 to 4. In this term’s contentious, controversial docket, split decisions are inevitable. The court can reargue the pending cases and hear the upcoming ones, but they will be too divided to decide anything truly sweeping. Unresolved cases will stack up.
That means only Congress and the White House can resolve the deadlock. And Obama has the power there, even though Republicans control the Senate. By Saturday evening, Senate Majority Leader Mitch McConnell (R-Ky.) had already said the vacancy shouldn’t be filled until the next president is in office, 11 months from now. “The American people should have a voice in the selection of their next Supreme Court justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.”
But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it.
The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that.
Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4.
That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. The institutional cues for Obama are completely different than for the court. The Constitution clearly assigns the task of nominating judges to the president — with the Senate’s advice and consent, to be sure, but for most of American history, presidents got a fair amount of deference. Acting politically is consistent with occupying elected office, so that’s what Obama should do. Political considerations, after all, are what motivate Republicans to pledge to block nominees before any have been announced. This is the moment for Obama to assert his political prerogatives as firmly as his opponents always seem to do.
Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two-thirds of the people in the country live in blue-court America.
So maybe someone like D.C. Circuit Judge Sri Srinivasan —confirmed 97 to 0 just three years ago — will look better to the Senate than nearly a year of living with the appellate courts going wild while the cat’s away. Imagine the glee in the most-reversed circuit court in the nation, the liberal Ninth, which will now be able to tell Arizona and Alaska what to do without fear of contradiction. If Obama really cares about that legacy, nothing would establish it more firmly than using his unexpected advantage to appoint someone who will one day be as much of a hero to liberals as Scalia was to conservatives.