Everything You Need to Know About the Vacancy on the US Supreme Court

Justice Scalia was a big figure in American politics, and his death could be the deciding factor in the 2016 election
February 28, 2016 Updated: February 28, 2016

The death of Supreme Court Justice Antonin Scalia, and speculations about the appointment of his successor, have dominated American headlines for days. We asked political scientist Joe Ura to take us back to the basics. He explains how Supreme Court justices influence American politics and the implications of a vacancy in an election-year.

ResearchGate: What is the importance of the Supreme Court in the American political system?

Joe Ura: The Supreme Court is the highest court in the United States. When a majority of the court’s justices judge some governmental action unlawful or unconstitutional, it has the power to declare it void and unenforceable. This means it has a considerable impact on some of the most controversial issues in American politics, including gun control, campaign finance laws, and health care. Given the difficulty of amending the U.S. Constitution, the Supreme Court is often, for all practical purposes, the final and authoritative voice on the permissible scope of governmental activity in the United States.

RG: What was unique or notable about Scalia as a justice?

Ura: Most importantly, Justice Scalia was the leader of one of the great intellectual movements in modern American law. His view that the U.S. Constitution and federal laws should be narrowly interpreted according to the original public meaning of their text proved to be a potent legal philosophy and a political rallying point for conservative activists and office-seekers. His views shape the jurisprudence of the Supreme Court on an array of important issues, including federalism and gun control. He also strongly influenced a generation of conservative lawyers and politicians, and his views on strict constitutional limits on government are now essential elements of conservative political thought and rhetoric in the United States. And, through his intellectual influence on the leadership of the contemporary conservative movement and the Republican Party, I think it is fair to call him easily one of the most important and impactful Supreme Court justices ever.

Easily one of the most important and impactful Supreme Court justices ever.

RG: What can we expect his legacy to be in terms of lasting impact on the United States?

Ura: In addition to his role in shaping American politics and its political culture, Justice Scalia’s legacy will be his contributions to law. In the American system, the Supreme Court’s decisions are announced in written opinions that explain the reasoning the Court’s majority used to reach them. These opinions are important, because they provide guidance to lower courts about how to decide other, similar cases and to legislators and executives about what the Supreme Court regards as acceptable within the Constitution or federal law. When a justice writes an opinion on behalf of the Court’s majority, his or her legal reasoning becomes, for all practical purposes, the authoritative framework for resolving an entire class of disputes in American law. Justices who disagree with the Supreme Court’s majority may write dissenting opinions, explaining their opposition. These opinions do not have force of law, but they can help focus political opposition to the majority’s decision.

Justice Scalia’s opinions, both when he wrote for the majority and when he dissented, were important for their content and notable for their style. His opinions were united by his legal philosophy emphasizing the narrow interpretation of constitutional and statutory texts. This led him to be a strong supporter of Americans’ constitutionally protected rights to speak freely, to own guns, and to be free from unreasonable search and seizure by the state. He argued that the death penalty is permissible under the Constitution, and he supported clearly defined lines between the authority of the American state governments and our national government as well as strong barriers between the branches of our national government. He also argued that the Supreme Court could not act to protect individual rights on matters about which our Constitution is not explicit. He therefore refused to recognize constitutional rights to abortion, sexual liberty, or same-sex marriage.

Justice Scalia’s written opinions were often praised, by both supporters and critics, for their strong legal reasoning, He was also apt to pepper his writing with effective, sarcastic wit and passionate please for action.

RG: How does the process of appointing his successor work?

Ura: When there is vacancy on the Supreme Court, the president nominates a replacement. The Senate offers its “advice and consent” by holding public hearings that include questioning of the nominee about his or her judicial philosophy and background and then voting on the nomination. A nominee must receive majority support from the Senate to join the Court.

RG: Is there a precedent for appointing a justice during an election year?

Ura: Yes and no. American Supreme Court justices may serve for life once they are confirmed. So, justices often aim to retire when their political party controls the presidency and the Senate and at a time that is politically advantageous for ensuring that their successor is a political and legal ally. So, there are simply few election year vacancies on the Supreme Court.

In 1988, the Senate voted unanimously to confirm President Reagan’s nomination of Anthony Kennedy, although he had been nominated in 1987. Also, in 1932, Republican President Herbert Hoover nominated Democrat Benjamin Cardozo to the Supreme Court, and the Senate confirmed him unanimously. However, in 1968 a coalition of Republicans and Southern Democrats prevented the Senate from taking a final vote to confirm President Johnson’s nomination of sitting Associate Justice Abe Fortas to serve as Chief Justice after questions arose about the propriety of his personal finances.

Republicans are playing a very dangerous game.

RG: What type of appointment do you expect Obama to make?

Ura: I suspect he will appoint a mainstream Democrat with experience as a federal judge. President Obama also has a strong record of using his nominations to promote diversity on the federal courts. So, I would also expect the president to use this opportunity to try to add another woman or person of color to the Court.

RG: Do you think Congress will try to stall Obama’s nominees until the end of his term?

Ura: Since leading Senate Republicans have made public commitments that they will not consider the nomination, I think it would be politically difficult for them to back out of that pledge. The most likely outcome is that there will be no vote until after the election.

RG: What options might Obama have if Congress reacts to a reasonable appointment with obstructionism?

Ura: President Obama has few viable options other than using the Republicans’ intransigence to generate electoral support for Democrats in the upcoming presidential and congressional elections. As an aside, the Republicans are playing a very dangerous game. It is by no means clear that Republicans will either win the presidency or retain control over the Senate. By refusing to act on any nominee from President Obama, they are squandering any leverage they might have to force him into making a more politically moderate nomination than he might have otherwise and creating the very real possibility of a newly elected Democratic president sending a honeymoon Supreme Court nomination to a Senate controlled by Democrats.

RG: How can we expect the court to operate until a ninth justice is appointed?

Ura: While the Supreme Court usually operates with nine justices, action with eight justices, either because of a vacancy or because a justice recuses himself or herself from a particular case does happen. There are formal rules for the implications of ties: the decision of the previous court stands, and no precedent is set by the Supreme Court’s non-decision.

This article was originally published on ResearchGate.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.