The Scalia Effect

Justice Antonin Scalia has had a very wide range of effects in his brilliant career since he ascended to a seat on the US Supreme Court 30 years ago in 1986.  In the law, these effects will almost certainly have a long posterity in everything from the right to bear arms to abortion to the role of religion in national life.  He may have had a hand in accomplishing a basic turn in the method used to understand what the Constitution says and means.  Now he has died 11 months before we get a new president, and the timing is having another series of what we can fairly call "Scalia effects."

First is the practical effect on current cases before the Court.  As Scalia leaves, he bequeaths to the nation, however unwillingly, a Court with 8 members that are likely to vote 4-4 ties on at least some of the most prominent cases.  There are four remaining liberal justices and four remaining conservatives.  One conservative with a mind for international law, another lawyer named Anthony, in this case Kennedy, is something of a swing vote.

A tie vote on the highest court in the land bears some resemblance to a Congress, like ours, more interested in arguing than in compromising.  Not that the Court is more interested in arguing, but when tied it can have a hard time getting things done.  A tie decides nothing; it leaves no precedent; it leaves in place the lower court's decision.  It leaves, really, the whole question on hold until a later time when there may be an odd number of votes to resolve a matter.   That's our first new "Scalia effect."

Scalia has only been dead two days, but if you're reading this, you probably already know that the second Scalia effect is on the presidential campaign.  The Republican presidential candidates and Senators are making the point that this appointment needs to be left to the next president.  That isn't really how the system is supposed to work.  This isn't the month before the election.  In practice this Democratic president is likely to do what his precedessors have been doing since at least the 1980s, thinking long and hard before nominating anyone but a centrist.  Yet the Republicans have succeeded in placing four hard-right judges on the high bench.  Obama will have to fudge on this one, as he did with Sotomayor and Kagan.  There are 46 Democrats in the Senate, so Obama will have to send a name over that at least five or ten Republicans, like Orrin Hatch, have a hard time voting against. 

There is also the speculation that this vacancy could push both major parties to do what they should be doing all along, choosing candidates with the best chance of winning, with the best chance of compromising and governing.  The activists on both sides really hate to do that.  They wanted Pat Buchanan, George McGovern, and Ralph Nader to run the country.  There are still those of us who think, had the Dems had the sense to run anyone but a Massachusetts liberal like John Kerry, and picked pre-scandal John Edwards as the most electable choice, he would have beaten President Bush in 2004.  He would have also most likely have avoided that nasty scandal that ruined him for public life, but may have taught him a few lessons about life.  The Republicans have been more sensible the last two presidential elections, almost against their better judgment.  They nominated the centrist each time, but neither McCain nor Romney won.  They may be the more ready to try Trump or Cruz this time around.  Still it is hard for me to imagine any one of those two, or Sanders, taking the oath of office on January 20th next, and nominating the next justice.