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The Stakes in a Post-Scalia Court

Justice Scalia was larger than life, and his impact will be great after his passing as well.

February 14, 2016

Cross-posted on the New York Daily News

Justice Scalia was larger than life, and his impact will be great after his passing as well.

In the most basic sense, there are myriad critical cases now before the Supreme Court where it seemed the justices might have split five to four. For example, the Court will soon hear a case on abortion rights. It already heard a major case on one-person, one-vote. There are many others.

In each instance, a tie vote means that the lower court opinion stands, but it lacks the value of precedent. One might-have-been: Last week the court startled observers by freezing the key climate change rule. Without Scalia’s vote, would that have happened? And what does his death mean for any ruling?

Then, of course, there is a possible nomination battle. President Obama still has a year to go in his term. The Constitution gives him the power to nominate justices, and the Senate the power to advise and consent. Assuming the President does send a pick to Capitol Hill, as he says he intends to do, it would prompt a huge battle over the choice, her or his judicial philosophy, and the direction of the Court.

One historical irony: President Dwight Eisenhower actually appointed three men to the court through “recess appointments,” without a Senate vote. They were later confirmed. Among them wast the giant, William Brennan. But a recent Supreme Court decision made it likely impossible for this President do do the same.

A nomination fight would clarify the stakes.

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.

Already both Hillary Clinton and Bernie Sanders have said they would only appoint justices who would overturn Citizens United, the widely (and correctly, in my view) derided case allowing unlimited campaign spending by corporations, unions and, as interpreted by other courts, wealthy individuals. The Republicans all say they will insist on overturning Roe vs. Wade (as they have for years).

The next year should be 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 – but it could be one of the most important.

(Photo: AP)