WASHINGTON — The sudden death of the longest-serving U.S. Supreme Court justice has catapulted into the presidential election a new, extremely consequential issue with the potential to shape multiple aspects of American public life.
Abortion. Gun control. Money in politics. Minority-voting access. Environmental regulation. The limits of presidential power. All these issues and others could be shaped over the next few months.
Within moments of news spreading on Saturday that conservative stalwart Antonin Scalia had died in his sleep at age 79, Republicans immediately signalled that they would block anyone nominated by the current president.
It could mean a bitter confirmation battle these next few months in the Republican-controlled Senate, and an equally epic fight on the presidential campaign trail over who gets to choose the court.
The issue goes beyond Scalia. Nearly half the nine-member bench is over age 75, meaning the next president could shape the country’s highest court for decades to come.
”The stakes are huge,” said Chris Bonneau, an expert on judicial politics at the University of Pittsburgh.
”With so many 5-4 decisions on important issues, Scalia’s replacement could shift the court from conservative to liberal. This would be a bigger shift than the (Samuel) Alito replacement for (Sandra Day) O’Connor.”
Related from Jaime Weinman: Could Scalia’s death change the course of the U.S. election?
The battle will ultimately play out in the Senate, where confirmation requires a 60-per-cent majority. In U.S. history, the Senate has confirmed 124 nominations out of 160 proposed — with the rest either blocked or withdrawn.
But voters may get first say.
A foreshadowing of the current scenario was offered in late 2014 when top Democrat Chuck Schumer was asked to name the No. 1 issue of that year’s midterm elections. He replied: ”The Supreme Court.” In those midterms, Democrats lost control of the nominating body. The Senate is potentially up for grabs again in the current election.
That raises the importance of parties nominating a strong presidential candidate — one who can not only win, but also help elect his or her party’s Senate candidates down the ticket.
Several experts said a different court wouldn’t just offer different verdicts. It could even decide to hear different types of cases.
Ryan Emenaker of Brown University said the court only hears about 80 cases of the 10,000 petitions filed each year, and it requires the consent of at least four justices. He said Scalia’s influence was felt in multiple ways: ”Scalia was a power writer, thinker, and the longest-serving justice,” he said.
”The loss of his voice will change the tone of opinions and the ideas that are advanced.”
The court recently opened the floodgates for big money into American politics, ruling in the landmark Citizens’ United decision that corporate donations to third-party groups constituted free speech.
It also chipped away at the Voting Rights Act, which had allowed the federal government to referee elections in states with a history of segregation. Since that verdict, several states have tinkered with the makeup of their electorate by imposing stricter conditions on the types of acceptable voter ID.
The reliably conservative Scalia lost big ones, too.
He wrote a stinging dissent in the decision that allowed same-sex marriage across the country. He was also in the minority in the decisions that upheld President Barack Obama’s health reform.
Scalia’s memorable dissent on same-sex marriage said the judges had no right to decide the issue for 50 states. In its opening paragraph, he wrote: ”Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
The court is now scheduled to hear a case on Obama’s climate-change regulations. It just announced last week that it would consider whether he had the constitutional right to limit emissions from power plants.
Obama has already been warned by the rival party that it won’t confirm anyone before he leaves office next January.
”This will get ugly,” said Jeffrey Lax of Columbia University. ”But I don’t see a historical precedent for leaving this seat open.”
He called it ”utterly absurd” for Obama’s rivals to expect an 11-month vacancy until he steps down, which would mean cases ending in a 4-4 tie would have lower-court rulings upheld.
Bonneau said it’s understandable for Republicans to choose delay. But he called it a gamble. Conservatives have some leverage now, and could probably insist on a middle-of-the-road appointment in exchange for their votes.
Or they could go all-or-nothing and hope they win in November.
”If the Republicans think they can win the White House, they should stall,” he said.
Emenaker cited lame-duck precedents. He said Congressional Quarterly estimates that about half of non-confirmed justices were because of outgoing presidents. Congress even lowered the number of justices to seven under Andrew Johnson, then raised it to nine once he was gone.
That being said, even nominating a middle-of-the-road moderate would alter the court: ”(It) would be a big change from Scalia who is one of the most conservative justices.”