“The only good Constitution is a dead constitution,” Supreme Court Justice Antonin Scalia once said. The 79-year-old conservative jurist died Saturday, and while he professed to believe that the founding bylaws of the United States were set in stone — immutable and unchanging, even as the world and American society evolved — the identity of his successor, the ideology of the high court and the fate of many nation-defining issues before it are now very much in flux.
Notified of Scalia’s death, President Barack Obama expressed his condolences and praised the judge (with whom he rarely agreed) for his wit, intellect and love of family. Obama also vowed to “fulfill [his] constitutional responsibilities to nominate a successor in due time,” saying that filling the vacancy on the court was “about our democracy” and “bigger than any one party.”
In a different time, or even in a different year during his term, the immediacy of the president’s defense of his constitutional prerogatives might have seemed unnecessarily urgent or callously premature. But with Scalia’s death falling in the middle of an election cycle where control of the White House and the Senate are up for grabs, political winds were already howling hours before Obama took to the microphones. And the swiftness with which those winds shifted could say a good deal about the political direction of each political party — not to mention the future of many touchstone issues before the electorate.
Many of Sunday’s round-by-round accounts of the fight over the Supreme Court vacancy began with Senate Majority Leader Mitch McConnell, R-Ky., who, approximately two hours after news of Scalia’s death hit the wires, apparently threw down the gauntlet. “The American people should have a voice in the selection of their next Supreme Court Justice,” said McConnell in a statement. “Therefore, this vacancy should not be filled until we have a new President.”
The majority leader, as most reports have it, was soon echoed by Iowa Republican Charles Grassley, chairman of the Senate Judiciary Committee, the first stop in any confirmation process for the federal bench.
“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year," said Grassley’s statement. The Iowan added that the Senate should “defer to the American people who will elect a new president to select the next Supreme Court Justice.”
But that was not Grassley’s initial take on Scalia’s death. According to the Des Moines Register, not only did the Senator revise his official statement to include “nominate” (he originally said only that high court nominees should not be confirmed in a presidential election year), his very first reaction, when reached by phone a couple of hours earlier, was that he “wouldn’t make any prognostication” on how his committee would handle a potential Obama nominee.
The tale of the tape (or the Twitter feed) perhaps details a more accurate narrative.
At 5:27 p.m. Eastern Standard Time, less than an hour after a local Texas paper broke the news of Scalia’s death (and only 10 minutes after it was confirmed by the Supreme Court press office), Ted Cruz — the junior Senator from the Lone Star State and candidate for the Republican nomination for president — tweeted: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”
Other GOP presidential hopefuls followed (via Twitter or press releases) in fairly rapid succession, with Donald Trump, Jeb Bush and John Kasich expressing their condolences, and Marco Rubio and Ben Carson joining in Cruz’s call for a delay. Carson, now seemingly all but out of contention, was especially adamant, placing his call for the Senate to “stop any attempts to fill this crucial seat until We The People elect a strong Constitutionalist this November” before any traditional expression of sympathies.
By Saturday night’s Republican debate, held in Greenville, South Carolina, the die appeared cast. The opening question was about Scalia, and the first response came from Donald Trump, who initially said if he were in Obama’s position, he would use his presidential privilege to nominate a new justice. But the frontrunner quickly caught himself, insisting that if the president did make a pick, McConnell and Senate Republicans should “delay, delay, delay.”
Bush and Kasich insisted action could only come on a “consensus” candidate, Carson reiterated his earlier statement, and Rubio said the vacancy raised the stakes in the presidential race, leaving Cruz to again drive the point home — and the conversation rightward. “We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states,” he said.
But the fact is, for the Supreme Court — and for the country — that one-justice difference could be felt well before anyone’s nominee can fill Scalia’s seat.
Prior to Scalia’s death, the current court was considered closely divided along ideological lines, with four reliable conservative votes (Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts), four justices dubbed liberal (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) and the moderate conservative Justice Anthony Kennedy often pegged as the swing vote on close cases. That lineup has sustained the high court’s decades-long shift to the right, and the trend was expected to continue this session with important and ideologically riven decisions due in cases dealing with voting rights, abortion rights, immigration and union representation.
For organized labor, the ruling in Friedrichs v. California Teachers Association was awaited with a sense of impending doom. The case tests the constitutionality of “fair share” fees charged by unions to cover the costs of negotiating contracts that govern all workers, whether or not they are members of the labor union. The fees are already banned for private-sector unions in 25 so-called “right to work” states, and all of those states have seen a decline in union membership since the advent of those strictures.
The Ninth Circuit Court of Appeals reaffirmed organized labor’s right to collect the fees, but Rebecca Friedrichs, the plaintiff, has garnered strong support from a number of anti-labor and pro-business groups, and the sense was, after January arguments before the Supreme Court, that those groups would emerge with a 5-4 decision overturning the Appellate ruling, with Scalia joining the majority.
Now that case faces a 4-4 split, and one of two possible futures.
While a hung court technically affirms the ruling of the lower court — and past sessions have sometimes seen Appeals Court rulings stand after split votes — the precedent, especially in cases of major consequence, is for the justices to schedule re-argument for the next session when (theoretically, anyway) a new appointee will restore the panel to a full nine members.
There was perhaps no case this session where Scalia’s presence was more strongly felt then in Fisher v. University of Texas. The case, which was previously before the justices in 2012 and sent back to the lower courts, was seen as another opportunity for opponents of affirmative action to restrict the consideration of race in college admissions.
During arguments before the court last December, Scalia not only wondered whether African-American students wouldn’t do better in “less-advanced,” “slower-track schools,” he questioned whether an integrated student body, or integration in general, was a necessary goal. But as brash as that sounds, the ideas behind it were not that far from views expressed by justices Roberts and Alito. And with Elena Kagan having to recuse herself because of her intersection with the case when she was Solicitor General, the liberal bloc was already down a vote.
But with Kennedy apparently again in the swing seat, it is important to remember that he has a long and consistent history of votes against race-based diversity programs. With a likely 4-3 decision in favor of Fisher among the remaining justices, Scalia’s passing would appear to have no effect on the final outcome.
Another case out of Texas, Evenwel v. Abbott, has some of the same conservative interest groups behind it as the Fisher appeal, and was originally believed another right-wing victory in the making. At issue, whether state and municipal electoral districts are drawn on the basis of eligible voters or the entire population, with Evenwel’s side hoping to exclude large numbers of children, immigrants and former felons from factoring into the maps.
But the federal standard of counting total population for federal electoral districts is enshrined in the 14th Amendment to the Constitution and has been applied to the states for half a century. With the plaintiffs unable to present a plan to reconcile the difference, most court watchers saw the pendulum, again in the form of Kennedy, swinging left. Scalia’s absence just turns a 5-4 decision into a 5-3 ruling in favor of the more-inclusive total population model.
To be argued
Perhaps even more fluid are several cases scheduled but yet to be argued before the Supreme Court.
First up, March 2, a challenge to tough new conditions imposed by the state of Texas on clinics and doctors offering abortions. Scalia was a dependable vote against abortion access, and prior to his death, reproductive rights advocates were apprehensive the case would uphold Texas law and possibly set a broader precedent. If arguments go forward before an 8-judge panel, and the court splits 4-4, the lower court’s ruling in favor of the stricter requirements would stand, but the finding would be specific to Texas.
Later in March, justices are set to hear arguments concerning a further expansion of religious exemptions to the Affordable Care Act’s requirements that employer-funded health insurance include coverage for contraception. The court opened the floodgates on ACA exemptions in 2014 with the Hobby Lobby decision and an injunction in the case of Wheaton College. Since then, a number of non-profits, schools and charities have sought similar dispensation, and with Scalia on the court, it seemed likely they would get it. Minus the late justice, however, another split decision looms. Decisions on this in lower courts have been divided, so if any case seems destined for re-argument in a later session, it would be this one.
Also up in the air, challenges to Obama’s two executive orders on immigration: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA). The first defers the deportations of people who arrived in the United States as children, the other, undocumented parents of citizens or lawful permanent residents.
The case has 26 states, all under Republican governors, challenging a Democratic president’s rulemaking authority. While the naked partisanship involved had many court watchers assuming the justices — with or without Scalia — would eventually rule in favor of the White House, if the high court pushes back the original April date for arguments, the conservative Fifth Circuit Court of Appeals injunction against the Obama order could continue.
The immigration challenges are consolidated under United States v. Texas, and are yet another connection in this Supreme Court session (along with Fisher, Evenwel, the abortion restrictions and some of the challenges to the ACA contraceptive rule) to the state that once called Ted Cruz solicitor general. Cruz, indeed, has long-running connections to some of the parties backing Fisher and Evenwel, and close ideological ties to the conservative sides of the abortion, immigration and religious exemption cases — so perhaps it was not all that shocking to see the Republican presidential candidate out in front of the pack after Scalia’s death. But the Senator clearly sees this event as more than a one-off.
Cruz made the rounds of the Sunday shows, and on each seemed to ratchet up his calls for preventing Obama from filling Scalia’s place on the court. “The Senate’s duty is to advise and consent,” said Cruz on NBC’s Meet the Press. “We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court.”
Asked on ABC’s This Week with George Stephanopoulos whether he would filibuster an Obama nominee, Cruz said, “Absolutely.”
In leading the charge against any movement on Scalia’s replacement, Cruz hopes to galvanize right-wing support for his campaign above other conservatives in an extremely conservative GOP field. But in leapfrogging McConnell, his Senate leader, the Texan has potentially made it tougher for his party to hold on to its advising and consenting majority in the coming election.
Republicans will have to defend Senate seats in a number of Democratic-leaning or potential swing states, like Pennsylvania, North Carolina, Ohio, Illinois and Wisconsin. And with Democrats needing to flip four or five states to retake the Senate in a year where they have to defend only 10 of 34 seats, an issue like a GOP majority blocking a popular Democrat’s Supreme Court nominee could prove decisive.
But for Cruz, not unlike with the late Justice Scalia, building coalitions is less important than burnishing a reputation. For Scalia, it won him notoriety and vaunted place among America’s right, even if it didn’t win him as many cases or co-conspirators as he and the president who put him on the Court, Ronald Reagan, would have liked. Still, at his passing, Scalia is being honored as a man who changed the way the Supreme Court and its justices are perceived.
For Cruz, he’s already won the enmity of most of his Capitol Hill colleagues. Whether that can put him over the top with voters in an anti-establishment cycle remains to be seen, but if he is successful in stopping the current president from filling a vacancy on the High Court, then his campaign strategy could have lasting effects — both political and legal — whether or not he wins an election.