The death of Antonin Scalia should remind us of the perils of an aging Supreme Court bench

(Originally posted on OxPol, the Oxford University Politics Blog)

Since last Sunday, plenty of ink has already been spilled following the death of Justice Antonin Scalia, who had served on the United States Supreme Court since 1986. Following the obituaries, newspapers, law journals and political commentaries will be filled for the next few weeks with evaluations of his judicial legacy, the consequences of his death for the court, and its impact on the current presidential election in the United States. Already the New York Times and the Washington Post are filled with speculation about the latter two and editorials about the first.

The easy, obvious point to be made is that he was one of the most influential jurists of his age, emphasizing a form of originalist interpretation of the US Constitution that has gained prominence, particularly among conservative jurists in the US, but which has become an accepted approach for progressives, as well.

The other parts are a matter of greater speculation.

Let’s start with the legal implications.

During the interim, before Justice Scalia’s vacancy is filled, there will be only eight justices on the court. While it will now be more likely that the justices will divide evenly on difficult cases, Justice Kennedy will remain the swing vote, providing a fifth vote for a majority of progressive justices (Ginsburg, Breyer, Sotomayor and Kagan), and remaining with the conservatives (Thomas, Roberts and Alito) in tie votes, which will leave the lower court’s judgment in place and will not operate as binding precedent on lower courts. In effect, there is no longer a conservative majority, although there can be a progressive one, if Kennedy decides to join in.

The court is hearing a number of high-profile cases this term, and the political implications for those decisions depend on the status of the case coming from the lower court. Whole Women’s Health v. Hellerstedt (No.15-274) involves a Fifth Circuit decision approving a state law that virtually eliminated abortions in Texas. Unless Justice Kennedy can be convinced that Texas has effectively outlawed abortion by imposing onerous regulatory requirements (thereby violating the Fourteenth Amendment), he will stick with the conservatives, and the Fifth Circuit’s decision will remain in place: a conservative win, but one of no precedential value. In Tyson Foods v. Bouaphakeo (No. 14-1146) a different court of appeal agreed that a class of workers could be certified as a group to pursue their members’ claim that they should have been paid for the time when they were putting on safety equipment. A tie vote would leave the plaintiffs’ damage award in place: a victory for the progressives. One possibility is that cases that are close will be held over for re-argument in the court’s October 2016 term. That option carries uncertainty for both sides, as it depends both on who is elected, on whom they nominate and on whom the Senate approves.

Meanwhile, the politics is even more unpredictable.

In terms of the presidential election, the justice’s death has already brought about a re-focus on the importance of the president’s role in appointments to the court. This aspect of the president’s job had been all but ignored in the primaries, although it was certain to become an issue in the general election. Following a brief waffle by Jeb Bush on Sunday night, all of the Republican candidates have followed Senate Majority Leader Mitch McConnell, who has said that the Senate will not approve a nominee until after the next president takes office. In the past, the Senate deferred to the president’s choice of justices, as well as other federal judicial officers, but since the Nixon administration that deference has declined and appointments have been seen as more political, particularly following the Senate Judiciary Committee’s hearings on the appointment of Clarence Thomas. This means that Republican senators who could face a primary challenge (from the right) have a strong incentive not to cooperate and approve a nominee before next year. Moreover, when the Senate changed its filibuster rules in 2013, so that judicial nominees were exempt, the change did not extend to Supreme Court nominees. Those nominations still require 60 senators before they can move to a floor vote.

But more importantly, Justice Scalia’s death concentrates the minds of both Democrats and Republicans on the fact that the justices are relatively old. The median age of those on the court (before Justice Scalia’s death) was 67 years, 7 months (Justice Thomas), and two other justices (Ginsburg and Kennedy) are close to Justice Scalia’s age (82 years, eleven months and 79 years, six months, respectively). Only three (Sotomayor, Roberts and Kagan) are under the traditional retirement age of 65.

In the past few days, a few trial balloons have been sent up about how odd it is to wait for justices to die before replacing them. Mutterings can be heard (of varying levels of seriousness) that the United States should move to extended, fixed terms for Supreme Court justices, of 18 years, staggered so that each president would be entitled to appoint two per term. Unlikely as this seems, it might make sense both in terms of reducing the partisanship of the court’s judges and in terms of depoliticizing the process of selecting them.

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