The sudden death of justice Antonin Scalia is sending shock waves through the political system.
Within moments of the announcement that Supreme Court Justice Antonin Scalia had died, Republicans and conservatives signaled they intended to end the Obama years exactly as they had begun them: with partisan- and ideologically-fueled obstructionism. Before the nation had time to ponder Scalia’s impact on American jurisprudence and society, prominent conservatives and GOP presidential candidates were vowing, through tweets, to block President Barack Obama from filling the vacancy on the Supreme Court. This could well be the Republicans’ final battle in the war on Obama.
It is unclear how long the process to appoint a replacement would take, but Obama’s first two choices make clear how dangerous his presidency is to the laws of this nation.
The Supreme Court abhors even numbers. But that’s just what the court will have to deal with, perhaps for many months, after the death of Justice Antonin Scalia. Eight justices will decide what to do, creating the prospect of 4-4 ties.
Here are some questions and answers about the effect on the court of the death of its conservative icon and longest-serving justice:
Q. What happens to cases in which Scalia cast a vote or drafted an opinion, but no decision has been publicly announced?
A. It may sound harsh, but Scalia’s votes and draft opinions in pending cases no longer matter. Veteran Supreme Court lawyer Roy Englert says that “the vote of a deceased justice does not count.” Nothing is final at the court until it is released publicly and, while it is rare, justices have flipped their votes and the outcomes in some cases.
Q. What happens if there is a tie?
A. The justices have two options. They can vote to hear the case a second time when a new colleague joins them or they can hand down a one-sentence opinion that upholds the result reached in the lower court without setting a nationwide rule. When confirmation of a new justice is expected to happen quickly, re-argument is more likely. In this political environment, the vacancy could last into 2017.
Q. Why doesn’t the court like tie votes?
A. A major function of the Supreme Court is to resolve disputes among lower courts and establish legal precedents for the entire country. Tie votes frustrate those goals and they essentially waste the court’s time.
Q. How does Scalia’s death affect specific cases?
A. It deprives conservatives of a key vote and probably will derail some anticipated conservative victories in major Supreme Court cases, including one in which labor unions appeared headed for a big defeat. Next month’s Supreme Court clash over contraceptives, religious liberty and President Barack Obama’s health care law also now seems more likely to favor the Obama administration.
Q. Unions have suffered a string of defeats at the Supreme Court. Is that likely to change?
A. Yes, at least in the short term. Many of the cases involving organized labor were decided on 5-4 votes, with the conservative justices lining up against the unions and the liberal justices in support. The pending case seemed like more of the same. Public sector labor unions had been bracing for a stinging defeat in a lawsuit over whether they can collect fees from government workers who choose not to join the union. The case affects more than 5 million workers in 23 states and Washington, D.C., and seeks to overturn a nearly 40-year-old Supreme Court decision.
Now, what seemed like a certain 5-4 split, with the conservatives in the majority and the liberals in dissent, instead looks like a tie that would be resolved in favor of the unions, because they won in the lower courts.
Q. What other pending cases could be affected?
A. A challenge to the way governments have drawn electoral districts for 50 years now appears to have little chance of finding a court majority. The court heard arguments in December in a case from Texas on the meaning of the principle of ‘One Person One Vote,’ which the court has said requires that political districts be roughly equal in population.
But it has left open the question of whether states must count all residents, including noncitizens and children, or only eligible voters in drawing district lines.
Q. What will happen in the upcoming case over the Obama health care overhaul?
A. The Supreme Court will be looking at the health care law for the fourth time since its 2010 enactment. This time, the focus is on the arrangement the Obama administration worked out to spare faith-based hospitals, colleges and charities from paying for contraceptives for women covered under their health plans, while still ensuring that those women can obtain birth control at no extra cost as the law requires.
The faith-based groups argue that the accommodation still makes them complicit in providing contraception to which they have religious objections.
A tie vote here would sow rather than alleviate confusion because the appellate courts that have looked at the issue have not all come out the same way.
That prospect suggests that Justice Anthony Kennedy will join the court’s four liberal justices to uphold the arrangement, Supreme Court lawyer Thomas Goldstein said.
Q. Are there cases in which a tie would be a loss for the Obama administration?
A. The administration’s plan to shield up to 5 million people from deportation was struck down by lower courts and a Supreme Court tie would leave that ruling in place. On abortion, the administration is backing a challenge to Texas’ strict new regulations for abortion clinics. A federal appeals court upheld the regulations.
Here are a look at some of the leading possibilities to be Obama’s third nominee to the U.S. Supreme Court:
Attorney General – Loretta Lynch, 56, has served as Obama’s attorney general for less than a year, after her nomination got caught up in partisan wrangling in the Senate. Senators on both sides agreed that the disputes had little to do with her and she doesn’t seem to have engendered the same anger from the GOP that her predecessor, Eric Holder, produced.
Lynch did stints as the top federal prosecutor in the Brooklyn-based Eastern District of New York during the Clinton administration and under Obama. Nominating her could complicate her efforts to run the Justice Department since all her decisions as attorney general could be seen as opportunities to either advance or set back her nomination. She would also make history as the first African-American woman nominated to the Supreme Court.
U.S. Court of Appeals – D.C. Circuit – Sri Srinivasan is perhaps the most attractive potential Supreme Court nominee for Obama if the goal is to put pressure on McConnell to allow a Senate confirmation vote. Nominated by Obama in June 2012, Srinivasan was confirmed in May 2013 by a unanimous, 97-0 vote.
Democrats believe that unambiguous verdict on Srinivasan could make it awkward for McConnell to block a vote on his nomination.
A nomination of Srinivasan, 48, to the high court would make history: he was born in India and would be the first Indian-American Supreme Court justice.
Srinivasan is widely viewed as a moderate. He clerked for Republican-appointed Justice Sandra Day O’Connor. In a speech last October, Srinivasan seemed to relish maintaining stability in the law. He suggested that fears he and three other Obama appointees would dramatically change the balance in the D.C. Circuit were overwrought.
Watford is an Obama appointee on the 9th Circuit and has been repeatedly mentioned as a potential Obama Supreme Court nominee. He was confirmed in 2012, by a 61-34 vote.
Watford, who’s in his late 40s, spent a decade as a federal prosecutor in Los Angeles. Regarded as a moderate appointee, he was also a clerk to influential 9th Circuit Judge Alex Kozinski and Supreme Court Justice Ruth Bader Ginsburg. His list of judicial rulings is still fairly short, which can be an advantage in confirmation battles. Watford is African-American.
Patricia Ann Millett
Millett, 52, sits on the D.C. Circuit and is part of a slate of three nominees Obama put forward for that court in 2013. Those nominations triggered Republican threats of a filibuster and led Democrats to deploy the so-called nuclear option, changing Senate rules to prevent filibusters on judicial nominees below the Supreme Court level.
After considerable parliamentary maneuvering, Millett was confirmed by a 56-38 vote in December 2013.
Millett spent more than a decade as a Supreme Court litigator in the Solicitor General’s office at the Justice Department. She later chaired Akin Gump’s Supreme Court practice along with Tom Goldstein, founder of SCOTUSBlog, and sometimes contributed to that site.
Merrick Garland Garland is a politically savvy Clinton appointee on the D.C. Circuit who has long been discussed as a potential Supreme Court nominee. He’s well respected by lawyers and lawmakers in both parties.
However, Garland’s now 63, making him a decade older than a typical Supreme Court nominee in the modern era.