The death of Justice Antonin Scalia was a shock not only to the American people, but to the American system of justice. At the time of his death on Feb. 13, Scalia was heavily engaged in the cases being briefed and argued this term, including blockbusters dealing with abortion and religious freedom. What happens to those? How will a new justice be selected? How will the selection process impact election-year politics? What will a new justice mean for the future of the Court’s handling of cases involving the family, marriage, abortion and religious freedom?
Let’s break it down.
With its usual complement of nine members, the Supreme Court typically doesn’t end up with tie votes in its decisions. Even if by a slim 5-4 majority, cases get decided. With eight members, the possibility of a tie exists. What happens then?
The Court actually is used to addressing cases with only eight members, as when a justice has a prolonged illness or must recuse himself for a conflict of interest. In the case of a tie vote, the Court can order a re-argument of the case when all nine justices are seated. If the Court lets the tie stand, it affirms the decision from the lower federal appellate court. However, the case doesn’t set a national precedent; it binds only the active parties and becomes precedent only in states comprising the federal circuit where it was decided.
A tie vote could factor heavily in at least two important cases before the court this year: an abortion regulation case from Texas (Whole Woman’s Health v. Hellerstadt); and the Little Sisters of the Poor, involving the federal mandate that religious non-profit organizations provide possible abortifacients in company health plans (Zubik v. Burwell). In the Texas case, a tie would affirm the lower court opinion, which upheld the law. But a tie vote in Zubik would cause serious problems, because that case is comprised of several decisions which came from different federal circuits, with varying outcomes. If those decisions are affirmed by a tie, the country would end up with some states where religious non-profits have less religious freedom than other states. If a tie occurs, it may cause the remaining eight members of the Court to carry the case over to its next term and order a re-argument after a new justice is appointed.
The process for selecting a new justice to fill Scalia’s position is set forth in the U.S. Constitution, Article II, Section 2, clause 2: “[The President] shall nominate, and by and with advice and consent of the Senate, shall appoint . . . Judges of the Supreme Court… .” The president sends the name of the person he nominates for the Court to the Senate, which will refer the matter to the Senate Judiciary committee to hold hearings and to make a recommendation to the full Senate, which will then debate and vote on the nominee. If the nominee receives 51 or more votes, he is “confirmed,” and the president then “appoints” him to the Supreme Court. If he isn’t confirmed, the process starts over with a new presidential nominee.
The process to replace Scalia will be fraught with political and constitutional significance, because the fragile ideological balance that included him—four conservatives, four liberals, and Justice Anthony Kennedy as the swing voter who takes different sides given the nature of the case—would be altered, perhaps permanently. President Obama’s other Supreme Court appointees—Sonia Sotomayor and Elena Kagan—are decidedly liberal, as any forthcoming nominees would likely be.
The Senate, however, is currently controlled by Republicans who hold an edge of 54 seats to 46, and they don’t feel disposed to simply acquiesce to another liberal ideologue on the Court—especially one that would alter its balance. Republicans have reminded Democrats that the Senate has an election-year tradition of leaving big appointments to the incoming president. In 2007, Democrats invoked that tradition against President George W. Bush, with Sen. Chuck Schumer calling for the Senate to block any Supreme Court nominations made during his last year in office; however, there were no vacancies to fill that year.
Scalia’s replacement will become an important election-year issue. Judges have perennially been a conservative rather than liberal voter priority, so it could drive huge numbers of conservative voters to the polls in November.
Originally published in the April 2016 issue of Citizen magazine.