Once again, Justice Antonin Scalia is in the middle of a presidential election. Fifteen years ago, in December 2000, he was a part of the 5-4 Supreme Court majority in Bush v. Gore that halted the Florida recount and handed the election to Republican George W. Bush. The much-maligned decision is a regrettable example of the Court placing politics above the law, with five Republican-appointed justices ignoring constitutional principles to propel a new Republican president into office. In later years, Justice Scalia’s defense of the case boiled down to, “Get over it!”
On February 13, Scalia, ever brilliant, witty, and unrepentant, died at the age of 79. His death creates a vacancy on a closely divided Court that decides, often by a single vote, some of the nation’s most pressing issues. The vacancy comes as the Supreme Court is poised to decide a litany of blockbuster cases—abortion, affirmative action, labor, religious freedom, healthcare, voting rights, and the death penalty are all before the Court. It also thrusts the Supreme Court to the forefront of the 2016 election. The Court has always been the most important issue of this election—Scalia was not the oldest member of the Court, and three more justices will be in their 80s during the next president’s term. But with Scalia’s death, a once esoteric issue that has struggled for airtime became immediate and tangible. The impact was swift, with the Supreme Court the first subject raised during the Republican debate in South Carolina on the night of Scalia’s death.
Scalia is the first Supreme Court Justice to die mid-term since Robert Jackson in 1954, and losing him hurts the conservative special interests who have angled for big victories this year. Throughout a 30-year tenure that spanned five presidents, Scalia anchored the Court’s conservative wing, not just as a reliable vote, but as a legal movement’s intellectual leader who awed popular audiences with breezy, quotable opinions that persuaded through humor and biting criticism. Without Scalia, the current Court’s 5-4 conservative majority is gone, and many of the most contentious cases will result in either a 4-4 tie or a 5-3 decision with Justice Anthony Kennedy joining the more liberal justices, as he did last year on same-sex marriage.
In a tie, the Court simply affirms the lower court, and the result is as if the Court never heard the case at all. That’s a problem for the special interests that have engineered aggressive legal challenges designed specifically for the Supreme Court to decide. As we wrote in these pages in “The Case Against the Roberts Court” [October 12, 2015], that strategy has worked to great effect over the past decade. Time and again, the Court’s conservatives have advanced a pro-corporate, right-wing agenda by doing things that lower courts are unable or unwilling to do: Overturning well-established precedent, unilaterally changing questions before the Court, deciding issues about which there is no real dispute—all have become the keys to conservative success in the Supreme Court.