The death of Supreme Court Justice [Antonin] Scalia is this year’s political event in the U.S. and should remain so until the elections.
I was lucky enough — a few years back — to meet Antonin Scalia when he went through Montreal for a conference, where he stood by his Canadian counterpart, Justice Ian Binnie. Scalia was a hugely relatable and jovial person whose pronounced Italian-American accent and rather crude sense of humor reminded me vaguely of comedian Danny De Vito. But one should not stop at these first impressions: In politics, Scalia was a ruthless player whose ideas and actions were firmly and openly rooted to the right.
In theory, Supreme Court justices are supposed to be removed from the political game, sitting in serene isolation, far from the public’s scrutiny, and sheltered from interest groups and political party influence. In the U.S., this is an illusion. The Supreme Court is at the heart of the country’s political polarization, and the recent situation reflects this well, with four conservative justices with Republican allegiances (Alito, Roberts, Scalia and Thomas), four Democratic justices whose opinions lean to the left (Breyer, Ginsburg, Kagan and Sotomayor), and one Republican justice whose position is more nuanced (Kennedy), and whose choices very often sway the vote.
In addition to being the inspiration for the “originalist” movement, which argues that the Constitution should be interpreted in accordance with the spirit prevailing at the time of the Founding Fathers and not as a living and evolving document subject to the mentalities of current times, Antonin Scalia was the leader of the conservative wing of the Court. In practice, the disappearance of Scalia means that the hardcore right is now in the minority in the Court. This is a blow to the conservative movement in the U.S., whose paramount wish is to stop Barack Obama from nominating someone to replace Scalia who will necessarily be more liberal, despite the fact that it is the president’s constitutional prerogative to nominate a successor to a departed justice, with the “recommendation and confirmation” of the Senate. In short, the president nominates, and the Senate decides.
As soon as the news of Scalia’s passing was announced, the president signaled his intention of putting forward a candidate to replace him, a process that generally takes between one and three months. Concurrently, Republican Senate Majority Leader Mitch McConnell announced that his party would refuse any Obama nomination, arguing that it was up to voters to choose the next Court’s political orientation. Of course, Republicans are in a strong position, as they hold the majority (54 to 46), and one would have to convince 14 Republicans to side with the president’s choice (to reach a closing vote, which requires 60 senators). In the current climate, such a vote in favor of Obama would be equal to political suicide for the Republican senators, who would incur the wrath of the voters from their party’s base, who are already pumped up.
To support his decision, McConnell argues that there is an implicit rule that prevents a confirmation during an electoral year. This is not so. While it is true that resignations often tend to occur at the beginning of a mandate, 14 justices in the history of the Court were confirmed during an electoral year, and it is only by chance that there has been no replacement after a death under such conditions in a long time.
In all probability, Obama will make good on his promise and will nominate a justice to occupy the vacancy. Even if he tries his best to nominate a moderate, the nominee will most certainly be too leftist for the Republican senators, who will respond to the calls of their activist base and the Republican presidential candidates, who will urge them to refuse any compromise. The problem from a political point of view is that, by announcing that he would refuse to play ball beforehand, the majority leader has handed the Democrats their trump card, and it will be easy for them to claim that their adversaries are in bad faith.
Despite that, unless Obama manages to nominate a miracle candidate whose nomination would do nothing less than put the Republicans in a very uncomfortable position, it is highly unlikely that Scalia’s successor will be confirmed before the election. It will be an epic fight, and it is to be expected that more than just feathers will be ruffled. But immediate consequences will be more than just political.
Immediate Judicial Consequences
In the immediate future, Scalia’s death does not change the Supreme Court’s agenda, which is filled with politically sensitive cases, which will be directly influenced by the Court’s new ideological balance. For example, in Friedrichs vs. California Teachers Association, whose hearings took place in January, it was more or less certain that the Court was going to reverse the California Appellate Court’s decision and deal a potentially fatal blow to public sector unions. A 50-50 vote will uphold the Californian verdict, and the unions will get by until the next judicial challenge.
A second example will be of interest to environmentalists and to those who do not believe in climate change. Only last week, the Supreme Court suspended the application of the regulations derived from the Paris agreement on climate change as it was waiting to decide on the legality of the decrees that would allow those regulations to come into effect. What will happen remains to be seen, but Scalia’s death makes it a lot less likely that the Court will fight against Obama. It will therefore be up to voters and not the justices to decide the role of the U.S. in the fight against climate change.
Only to name a few, the Court will have to decide on abortion, contraception, affirmative action, the death penalty, and let’s not forget, very sensitive and controversial issues that impact access to voting. On either side of the partisan divide, these cases will be used to emphasize the importance of electing a president and Congress that will sway the Court to the “right side.”
An Even More Important Election
Suddenly, the stakes of the November election — which we knew to be already huge — just took on a whole new dimension. The composition of the Supreme Court and the philosophy that will define the interpretation of the Constitution for all courts for decades to come will depend on the decision of the voters. In the meantime, until Nov. 8, polarization and the dysfunctional operation of American politics will be even more apparent, and the electorate will have even more reasons to express its exasperation.