LEANS LIBERAL Sonia Sotomayor, 61 Appointed in 2009 by Barack Obama
LEANS LIBERAL Stephen G. Breyer, 77 Appointed in 1994 by Bill Clinton
LEANS CONSERVATIVE Samuel A. Alito, 65 Appointed in 2006 by George W. Bush
LEANS LIBERAL Elena Kagan, 55 Appointed in 2010 by Barack Obama
LEANS CONSERVATIVE Clarence Thomas, 67 Appointed in 1991 by George H.W. Bush
LEANS CONSERVATIVE Chief Justice John G. Roberts Jr., 61 Appointed in 2005 by George W. Bush
OFTEN THE SWING VOTE Anthony M. Kennedy, 79 Appointed in 1988 by Ronald Reagan
LEANS LIBERAL Ruth Bader Ginsburg, 83 Appointed in 1993 by Bill Clinton
The death of a Supreme Court justice and the battle over who will fill his seat—and when
The unexpected death of Supreme Court Justice Antonin Scalia has set off a massive political battle over who will succeed him, and it could have a huge impact on critical cases the Court is now considering.
Almost immediately after Scalia’s death last month at the age of 79, Republican senators said President Obama should hold off on nominating a replacement and leave the task to whoever wins the presidential election in November.
“The American people should have a voice in the selection of their next Supreme Court justice,” said Senator Mitch McConnell of Kentucky, the Republican majority leader. “Therefore, this vacancy should not be filled until we have a new president.”
The president immediately countered that he wouldn’t wait. “I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said, adding, “These are responsibilities that I take seriously, as should everyone. They are bigger than any one party, they are about our democracy.”
The stakes are incredibly high. The nine-member Court has been ideologically split between conservatives and liberals, with one justice often providing a “swing vote” to tip a ruling one way or the other (see “A Court in Transition”). Scalia was for decades the Court’s most outspoken and influential conservative, so replacing him with a liberal—or even a moderate—justice would have a profound impact. President Obama’s two previous Supreme Court appointees, Sonia Sotomayor and Elena Kagan, both replaced liberal-leaning justices, so their appointments didn’t change the overall makeup of the Court.
If Obama succeeds in replacing Scalia, he would be the first president since Ronald Reagan to fill three seats on the court. To be confirmed, a Supreme Court nominee needs a simple majority of votes in the Senate. With 54 seats in the 100-member Senate, Republicans have the power to block the confirmation—if they all vote against Obama’s nominee.
The vacancy has already become a huge issue in the election, with Republican candidates supporting McConnell’s view that such an important vacancy shouldn’t be filled during a presidential election year, and Democrats accusing Republicans of plotting to circumvent the Constitution.
ANTONIN SCALIA He was the most outspoken conservative on the Court for three decades.
“Justice Scalia was an American hero,” Republican candidate Ted Cruz tweeted. “We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”
Democrat Hillary Clinton countered in her own tweet: “I have news for Republicans who would put politics over the Constitution: Refusing to do your duty isn’t righteous, it’s disgraceful.”
Political experts say Republicans, who hope the next president will come from their party, are taking a risk by seeming to obstruct Obama. Both Democrats and Republicans have blocked Supreme Court appointees in the past, but the Senate has never taken more than 125 days to vote on a nominee. If the Senate waits for the next president to take office before voting, that would mean at least a yearlong vacancy on the Court.
The immediate impact of Scalia’s death is to leave the Court shorthanded to decide the cases it’s considering this term, including major ones involving voting rights, affirmative action, and immigration.
With eight justices, the Court could deadlock, 4-4. If that happens, the Court can let the lower-court ruling stand, or it can schedule the case for re-argument in the next term, in the hope that an appointment will be made by then.
“It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term,” says Justin Driver, a law professor at the University of Chicago. “This event 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.”
Scalia’s death is also a vivid reminder of the huge consequences that follow from a single change in the Court’s makeup—and of how much timing can matter. On the Tuesday before Scalia’s death, for example, he was among the five justices who blocked Obama’s plan to regulate emissions from coal-fired power plants in an effort to combat climate change. Had the justices waited until their next regular conference—scheduled for the Friday after Scalia’s death—the regulation would have remained in place on a 4-4 vote.
Scalia, who was appointed to the Court in 1986 by President Ronald Reagan, was the longest-serving member of the Court. In 2008, he wrote the landmark Second Amendment opinion that established for the first time that individuals have a right to own a gun for self-defense. Whether you agreed with his rulings or not, experts say, his impact will be felt for a long time.
“Justice Scalia’s sad and untimely death will cast a pall over the entire term and a shadow over the Court as a whole,” says Harvard law professor Laurence H. Tribe, “at least until a successor is nominated and confirmed.”