Scalia’s Death: Complete Chaos or Liberal Wins?

Nadia Prupis Feb 16, 2016

The death of U.S. Supreme Court Justice Antonin Scalia, the leading conservative in the nation's highest court, has set the stage for a contentious year-end term as lawmakers tussle over a replacement nomination and several high-profile cases hang in the balance.

With eight justices left, the court has two options for cases in which it is now divided 4-4: it can order the cases to be re-argued after a new justice is confirmed, or it can abide by the ruling of the lower courts, without setting a precedent for future cases.

The swing vote ordinarily goes to Justice Anthony Kennedy, a conservative who occasionally sides with the liberal voting bloc. But Scalia's death now means that the liberal justices will only be able to command a majority with Kennedy's vote. If he sides with the conservatives, it would create the complicated 4-4 split.

Ian Millhiser, editor of ThinkProgress and senior fellow at the Center for American Progress Action Fund, explained on Democracy Now! on Monday how the problem with a 4-4 split then reverting to the lower-court ruling is that "you can wind up in this weird situation…where the law in, say, Arkansas, where the court of appeals there shrunk women’s rights to access birth control, is going to be different in Pennsylvania, where those rights remain more robust." He said that he expects some "pretty unprecedented chaos" to ensue.

Lawyer and court historian Linda Hirshman agreed that this could play out very differently for people living in different court jurisdictions.

"Of the 13 United States courts of appeals, nine are dominated by the Democrats and only four by the Republicans," she said. "So, two-thirds of Americans will be living in blue circuit America, while only one-third of Americans will be living in red circuit America. And their lives will be very different."

Scalia's death "almost certainly throws many cases that had been tentatively decided by 5-4 margins into grave doubt, and will likely require the justices to reassess many opinions," Justin Driver, a law professor at the University of Chicago, told the New York Times on Monday.

As the AP's Mark Sherman wrote, Scalia's departure "deprives conservatives of a key vote and probably will derail some anticipated conservative victories in major Supreme Court cases, including one in which labor unions appeared headed for a big defeat. Next month's Supreme Court clash over contraceptives, religious liberty and President Barack Obama's health care law also now seems more likely to favor the Obama administration." 

Some of those cases include:

  • Abortion. Whole Women's Health v. Hellerstedt, set for hearings March 5, could determine the fate of more than 75 percent of abortion clinics in Texas. The case could be one of the most consequential reproductive rights cases since the court affirmed in 1992 that states cannot pass laws that place undue burdens on women seeking abortions. A 4-4 decision could leave in place a previous lower court ruling that upheld sweeping restrictions on abortion providers in the state.
  • Immigration. Arguments are set to begin in April for United States v. Texas, which could uphold President Barack Obama's executive order to allow five million undocumented immigrants remain in the country and apply for work permits. In November, the United States Court of Appeals for the Fifth Circuit upheld a federal judge's nationwide halt to the program, which the Supreme Court could uphold.
  • Climate change. Just last week, the court ruled against the implementation of Obama's Clean Power Plan, which requires states to lower their carbon emissions from coal-powered plants, until it can be reviewed by the D.C. Court of Appeals in June. Climate campaigners are hopeful that any Obama nominee will support the landmark climate legislation.
  • Affirmative action. In the case of Fisher v. University of Texas, Scalia argued against factoring race into college admissions, invoking the conservative canard that minorities are harmed by affirmative action because they are not prepared for a rigorous academic environment. He stated during oral arguments in December that "blacks" would be better off attending "less-advanced, slower-track schools."
  • Labor rights. The case Friedrichs v. California Teachers Association (CTA) threatened to undermine public sector unions nationwide. However, with Scalia's absence, the effort only has four votes, while any move to affirm the lower court ruling, which was a loss for anti-union plaintiffs, will be deemed a victory for organized labor.

Meanwhile, Senate Republicans are gearing up to blockade any effort by Obama to appoint a new nominee while still in office. Hours after Scalia's death, Senate Majority Leader Mitch McConnell (R-Ky.) issued a statement that read, "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."

For his part, President Obama has ignored these calls and said he would proceed with a nomination after the Senate returns from its current recess on Feb. 22.

McConnell may be calculating that a Republican will win the White House in 2016. But as Sen. Elizabeth Warren (D-Mass.) wrote in widely-shared Facebook post on Sunday, there is no constitutional precedent that requires waiting for a new president before appointing a Supreme Court justice.

"Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate," Warren wrote. "I can't find a clause that says '…except when there's a year left in the term of a Democratic President.'"

"Senate Republicans took an oath just like Senate Democrats did," she continued. "Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk."

Whatever happens with the nomination process, "this potential crisis highlights is just how political the court has become," Millhiser adds.

Indeed, as Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, wrote on Sunday: "Of course, nominee or not, this makes the Supreme Court and its direction a central flashpoint for the Presidential election. Justice Scalia was a linchpin of the Court’s activist five vote conservative majority. Now that majority is at risk."

With Democratic presidential contenders Hillary Clinton and Bernie Sanders both saying they would only appoint justices who would overturn Citizens United, and all Republican candidates insisting on overturning Roe v. Wade, Waldman expects "a loud, passionate and partisan debate over the Constitution and how to read it." 

"It won't be the first in the country’s history," he adds of such a national conversation, "but it could be one of the most important."


This article originally appeared at


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