With the death of Justice Antonin Scalia, the Supreme Court has lost one of the most influential judicial voices of the late 20th century, and also one of its most colorful, a writer who studded his opinions with such idiosyncratic phrases as “argle-bargle” and “jiggery-pokery.”
Without Scalia’s distinctive conservative weight, the balance of power on the court has already shifted left, with several of this term’s highest-profile cases now likely to turn in a new direction.
And unless President Obama and the Republican-controlled Senate can defy partisanship in an election year and speedily agree on a replacement for Justice Scalia, the empty seat at the Supreme Court is likely to remain unfilled for a very long time.
What does Scalia’s death mean for the Court?
Scalia was a powerful force on the Supreme Court, not just the longest-sitting justice but perhaps the most philosophically firm, with an originalist approach to constitutional interpretation that he helped legitimize, having carried it from the academic fringes to the judicial mainstream.
Without Scalia, the court has already changed. Never again will we see the familiar five-vote conservative majority, with Scalia joined by Chief Justice John Roberts, Samuel Alito, Clarence Thomas, and Anthony Kennedy (often the swing vote).
In its place is a tighter divide, with four right-leaning judges matched by their four left-leaning partners. And the consequences of this shifting balance of power will be swiftly felt.
A number of high-profile cases on the court’s current docket will end differently because Scalia won’t be there.
To take just one example, many court-watchers expected a 5-4 vote that could have severely undermined the power of public sector unions. Now, however, that case seems poised to end with a 4-4 tie. And when there’s a tie at the Supreme Court, the ruling of the lower court stands — which in this case was a victory for the unions.
What does Scalia’s death mean for US politics?
Already, politicians have begun to scrap over the implications of Scalia’s death.
Senate majority leader Mitch McConnell expressed his view that “his vacancy should not be filled until we have a new president,” while the current President made clear that he does plan to seek a nominee.
Given the ferocity of partian politics in an election-year, it’s hard to imagine that the parties will agree on a successor before the November election.
Even in the best of times, this process takes months. First, the president has to vet and select a candidate. Then the Senate holds hearings, before voting to approve or reject.
In an alternate universe, where the president and Senate leaders were more sympatico, a fast-track process might be arranged. But since the president is a Democrat, while the Senate is controlled by Republicans unenthusiastic to see a conservative lion like Scalia replaced by an ideological adversary, a speedy resolution seems decidedly unlikely.
As the clock ticks and the standoff continues, this empty seat at the Supreme Court could become a key trope in the presidential race, a reminder that the winner won’t just sit in the Oval Office, guide foreign policy, and control executive action. He or she will also determine the future makeup of the Supreme Court, creating a new, liberal majority or restoring a conservative one.
How long can Scalia’s seat remain vacant?
There is no time limit on this. Unless and until the Senate approves a new justice, the Supreme Court will have eight members.
Long vacancies aren’t unprecedented. Under President Nixon, there was an opening that lasted a full year, as the Senate blocked two different nominees before accepting a third.
This time around, Republicans have good reason to keep the space open. If they win the presidency in November, they’ll be able to nominate a much more conservative candidate than anyone they could expect from Obama.
Then again, there’s a risk to this strategy. Should Democrats win big in November, taking the White House and also reclaiming control of the Senate, Scalia’s replacement could end up being as venerated a liberal jurist as Scalia will certainly be among conservatives.
Moving forward, as the days and months tick by without a ninth Supreme Court justice, there are lots of ways to remember the influence and vitality of Scalia — and to forget how quickly he became a political football: enjoy some of his many historic dissents, don’t miss the libretto from the comic opera Scalia/Ginsburg, and of course marvel at his capacity for wordplay and Scalia-isms.
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Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the US. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeHorowitz