By: Chance Seals
WASHINGTON (MEDIA GENERAL) – The Supreme Court is set for a difficult administrative period following the death of Justice Antonin Scalia.
Senate Majority Leader Mitch McConnell (R-Ky.) has already indicated that Republicans will not approve a replacement nominated by Pres. Barack Obama. This would be Mr. Obama’s third appointee.
If the Senate holds up the process, a high court with eight justices could be the new normal—at least until January 2017 when a new president is sworn into office.
Scalia, 79, popularized originalism at the judicial branch’s highest levels, interpreting law according to the founders’ original intent, and leaves behind a profound ideological imprint.
The devoutly conservative justice’s death ushers SCOTUS into a period of difficult organizational issues in major cases.
Most high-profile decisions are won by a slim 5-4 margin, with Scalia often in the majority.
His death reduces the right wing of the court to four justices, assuming you include the swing vote of Associate Justice Anthony Kennedy, who often sides with his conservative colleagues.
Previously argued and future cases will be decided by Chief Justice John Roberts and the court’s seven remaining associate justices.
If the final vote is a tie of four and four, the case is essentially kicked back to the lower court.
At that point, the lower court’s prior ruling stands.
This could be problematic for Mr. Obama in cases like his immigration executive action where previous federal courts ruled that the president overstepped his constitutional authority.
To take up a case, at least four of the nine justices must vote in the affirmative. The case is then added to the docket.
With Scalia’s passing, the court’s conservative wing (Roberts, along with Associate Justices Alito and Thomas) would rely on Justice Kennedy’s vote to get traction on cases of their choosing.
The court’s liberal wing (Associate Justices Breyer, Ginsburg, Kagan and Sotomayor) will retain an edge in case selection, generally voting in a bloc.
There are some cases where Scalia’s vote would not have changed the outcome.
Roberts famously sides with liberals in a case keeping the underpinning of Obamacare in place—which handed the president a win and infuriated his colleague Scalia.
History-changing votes have come from Justice Kennedy in past years as well, most recently on the topic of same-sex marriage.
Even with an eight-justice court, these rulings would have stood with a 5-3 margin.
REMAINDER OF 2016
The court will continue hearing cases for the 2015-2016 term.
As in years past, the most contentious decisions will likely be handed down in June before the justices’ summer break.
Roberts has taken pains in years past to encourage collegiality and consensus where possible. As the overseer of the nation’s highest legal body, court-watchers will be closely observing how he navigates the term’s final cases, particularly as the nomination process becomes a political football kicked around in the 2016 campaign.