RBG's Passing Highlights the Problems of Representation in the US

 

Supreme Court Justice, and legal icon, Ruth Bader Ginsburg passed away on Friday, September 18, 2020.  Not two hours later, Senate Majority Leader Mitch McConnell released a statement affirming that the Senate would work quickly to confirm President Trump’s appointment.  While this is the normal course of events when filling a Supreme Court vacancy, McConnell was met with a chorus of voices labeling him a hypocrite due to his refusal to conduct a Senate hearing for Merrick Garland, President Barack Obama’s choice to replace Supreme Court Justice Antonin Scalia.  Scalia passed away in February 2016, and McConnell argued it was wrong to confirm a Supreme Court nominee in the midst of an election year.  Yet, fast forward four years and he has no qualms about confirming Trump nominee, Amy Coney Barrett to fill Ginsburg’s vacant seat, arguing the circumstances are different due to the fact that the President and Senate majority are now both under unified Republican control, while in 2016 there was divided government. 

Former Supreme Court Justice Ruth Bader Ginsburg

Amy Coney Barrett, nominee to the U.S. Supreme Court

Regardless of how one feels about McConnell’s actions, this situation draws attention to the larger problem of representation in the United States.  The Supreme Court is currently comprised of eight justices, with Coney Barrett likely to be the ninth.  Out of those nine justices, five will have been appointed by Republican presidents that did not win the popular vote in their respective elections (though Bush did win both the popular and electoral votes in his second term).  George W. Bush and Donald Trump both assumed the presidency by winning the electoral vote but not the popular vote.  Bush appointed Chief Justice John Roberts and Samuel Alito, both of whom have a more conservative slant.  Trump, in his first term, has appointed Neil Gorsuch and Brett Kavanaugh, and has now nominated Barrett (who, by all signs will be confirmed along a party line vote in the Senate).  Neither of these presidents received a majority of support from American voters on election day, but together they have shifted the Supreme Court to the right ideologically for a generation. 

Additionally, representation issues present themselves in the Senate.  The Senate is not designed to be a democratic body.  It was designed to give states equal representation in the legislative branch, as each state receives 2 Senators.  Additionally, the Senate was designed to allow cooler heads to prevail in legislative decision-making.  Partisan battles were anticipated in the House, but were expected to be calmed in the Senate, as Senators were expected to examine what was better for the country as a whole rather than what individual members of a congressmember’s district demanded.  The House of Representatives was supposed to be where public opinion was aired and taken into account.  The Senate was supposed to funnel that opinion into policy that benefited a majority of Americans. 

Yet, much is different about the Senate of 2020 than the Senate of the late 1700s.  The Senate is still composed of two Senators from each state, but the population disparity between states today is much greater than it was centuries ago.  Currently, approximately 19.5 million people live in New York state, compared to the approximate 579,000 residents of Wyoming, giving Wyoming one Senator for roughly every 290,000 residents while in New York we see a ratio of 9.75 million to one.  The disparity looks even starker when we compare the most populous state in the country, California, with a population of 39.5 million. 

 

 

California's population is equal to the states highlighted in red combined.

The above graphic highlights the representation issue nicely.  California’s weight in the Electoral College (roughly appropriate given its population size) is worth all of the states, highlighted in red, combined.  Because we dole out electoral votes to states based on their population size, we know then that the combined population of the 13 states in red is roughly equal to that of California.  Thus, California’s two Senators represent the same number of people as the 26 senators from the states in red.  When Senators are eventually asked to vote on Amy Coney Barrett’s Supreme Court nomination, the states in red have a much greater voice than the Senators in California (26 votes to 2).

Problems with misrepresentation are frustrating and inevitably lead to lowered feelings of political efficacy and often depressed participation levels in democratic society.  Luckily there are reform ideas that exist to tackle the issues associated with misrepresentation that would increase political efficacy and hopefully revive civic participation. 

Ranked choice voting has been implemented in Maine thanks to a ballot referendum initiated by its citizens.  Ranked choice voting allows voters to rank the candidates in order of preference.  After all ballots are tallied initially (counting only a voter’s first choice), the lowest vote-getter is removed from contention and their votes are allocated to their second choice.  This process repeats until only two candidates remain.  This all but guarantees that the election winner will have a majority of support within a state. 

There are multiple reform plans proposed for the Electoral College: eliminate it altogether, award votes according to a mixture of the popular vote in a congressional district and the statewide popular vote total (Nebraska and Maine use this method currently), award electoral votes according to the proportion of a state’s popular vote total, or the states can enter into a compact that promises to award all of their electoral votes to the winner of the national popular vote, regardless of the state’s popular vote totals.  Some of these are more difficult to pass than others (with some requiring a constitutional amendment) and, of course, all of them come with benefits and drawbacks of their own (a topic for a completely separate blog post). 

There are also more “extreme” measures discussed to increase representation, including adopting a multimember district system, relying on a proportional representation system instead of our current winner-take-all approach to elections, or adopting a more parliamentary system in general over our presidential system.  These are much more unlikely to garner enough public support to gain serious traction, but public opinion is starting to drive some reform efforts when it comes to bettering representation in Congress.  Electoral College reform is now met with a majority of public approval and Maine’s ranked choice voting system was driven by its voters.  Representation matters to voters.  And when they feel that they are not being accurately represented by their elected leaders, there are normally electoral consequences that follow. 

Keeping an Eye on Justice Kennedy Continued

Taking “Judicial Notice”  

      

A few weeks ago, I wrote a blog post recommending that students keep their eye on Justice Anthony M. Kennedy in the ongoing legal battles over the Trump Administration’s travel ban.  Following the judicial invalidation of the initial Executive Order (Order No. 13769, issued January 27, 2017), upheld by a 3-0 ruling of the Ninth Circuit Court of Appeals, the Trump Administration opted to make revisions.  A revised version (No. 13780) was issued on March 6, 2017.  

On Wednesday, March 15, the revised ban was blocked by temporary restraining orders issued by the United States Federal District Courts in Hawaii and Maryland.  (A challenge by the State of Washington is still pending).  

Judge Derrick K. Watson, of the Federal District Court in Honolulu, found that procedural and other revisions did not remedy the central defects as previously identified by the courts.  In so ruling, the Federal Court took judicial notice of the public comments of Donald Trump, both as a presidential candidate and in his official capacity as President, as well as the commentary and explanations offered by White House staff and surrogates:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim (CV. NO. 17-00050 DKW-KSC). 

U.S. Federal District Judge Derrick K. Watson
Photo Credit: Associated Press

In his immediate response to the decisions on his revised ban, President Trump has again vowed to appeal. Whatever the Circuit Courts decide, it seems likely that this time the matter will work its way all the way to the United States Supreme Court. 

What Will Kennedy Likely Notice?

The ruling by Judge Watson frames the legal issues in terms of religious (First Amendment) rights.  The federal government has already indicated a two-fold argument in response: 1) that the law is facially neutral and that the district court overstepped by inquiring into the law’s underlying motivations and 2) that the order is necessarily and legitimately related to the compelling purpose of protecting national security.

Although the Supreme Court has been generally deferential to executive claims of necessity that are based upon national security interests, as I pointed out in my previous blog post on this topic, Justice Kennedy has been particularly emphatic that national security need not and must not come at the cost of constitutional liberty. 

There are two other cases (one from 1992 and from just a few weeks ago) which potentially shed light on what might guide Kennedy’s consideration of the Trump Administration’s arguments in support of its travel ban.

U.S. Supreme Court Justice, Anthony M. Kennedy
Original photo credit: 
http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg

Writing for the Court in, Church of Lukumi Babalu Aye v. Hialeah (508 U.S. 520) in 1992, Justice Kennedy invalidated a facially neutral ordinance prohibiting (ostensibly on public health grounds) the slaughtering of animals within city limits.  Kennedy rejected the claim of a facially neutral law, finding instead that the ordinance had been motivated by religious animus toward local practioners of the Santeria religion. The lack of neutrality, he found, could be determined from “both direct and circumstantial evidence”  including public and private commentary by local lawmakers in debating and discussing the ban. Kennedy’s opinion ruled that the law was neither neutral, nor generally applicable to all, nor sufficiently narrowly tailored to meet the  legitimate governmental concerns.  Kennedy stressed that the First Amendment “commits government itself to religious tolerance, and upon even slight suspicion that proposals…stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and the rights it secures.”

More recently, in a 5-3 ruling, Kennedy reiterated that racial bias has no legitimate place in the administration of justice.  His ruling in Pena-Rodriguez v. Colorado thus authorized the reconsideration of a jury verdict where it was subsequently revealed that a juror had made verbal statements in deliberations that reflected racial bias against the criminal defendant.  It was, Kennedy held, appropriate for a trial judges to consider such statements in retroactively determining whether the defendant’s Sixth Amendment right to a fair trial had been violated. Kennedy wrote:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.

Implementing the “Lessons of History”

So what are these lessons of history that mark the evolution of a “maturing legal system”? 

If (or when) the travel ban reaches the Supreme Court, it is not likely to escape judicial notice (Kennedy’s or others') that we recently observed the 75th anniversary of Korematsu v. United States (323 U.S. 214) in which the Supreme Court upheld President Franklin Roosevelt’s executive order interring Japanese Americans during World War II.  It is an unavoidable backdrop against which all claims of executive necessity are to be forever measured.  The 5-person majority in Korematsu did not question the executive branch’s motives nor did they challenge its determination that such sweeping measures were legitimately necessary.  As Justice Felix Frankfurter (in)famously noted in his concurrence, war powers and national security matters are constitutionally vested to the political branches and not to the courts. Korematus thus stands in the law books as a judicial validation of broad executive power in times of a national emergency or crisis.

But the insights of that ruling for the current justices (Kennedy perhaps included) may be drawn from the opinions of the dissenting justices who warned about animus and discrimination under the guise of facially neutral-justifications. Judicial validation of such claims, Justice Robert Jackson warned, are bound to become “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes” (323 U.S. 214, Justice Robert Jackson, dissenting).

It is by no means a given that the conservative Kennedy will accept executive assertions of legitimate national security interests without inquiring into the alleged motivations behind the ban and without full and careful consideration of the competing religious claims raised in the state challenges.  

When Justice Kennedy “errs” in close cases, it is often on the side of liberty. Because the closely divided Court currently stands at 8 members (pending the confirmation of the late Justice Scalia’s replacement), whichever way the Supreme Court tends on the travel ban question, Kennedy’s views will be particularly critical to the outcome.  Kennedy’s romanticized conception of the judicial role, along with his willingness to consider evolving sensibilities, the maturation of the legal system and emergence of newly recognized rights, and a lower court ruling that seems perfectly pitched to Justice Kennedy’s ear – means there is much in the travel ban cases of which Kennedy can and likely will take careful notice himself. 

President Donald Trump displaying his signature on the travel
ban executive order.
Photo Credit: Associated Press 

PSC 305, American Constitutional Law is offered regularly in the Fall Semester. The course covers the evolution, scope, and relative powers of the legislative, executive, and judicial branches and the major constitutional doctrines of separated powers and federalism (federal versus state powers). We cover constitutional law as part of American political development and discuss contemporary constitutional controversies.  

Keeping an Eye on Justice Kennedy

Justice Kennedy and the Future of the Supreme Court

U.S. Supreme Court Justice, Anthony M. Kennedy
Original photo credit: 
http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg

A long time ago, around the time I was contemplating topics for my doctoral dissertation, I was asked by my advisor, “who among the sitting justices do you think will have had the greatest influence on the Court fifteen, twenty years from now?”  It was a potentially thorny question, posed by a man who was himself a leading judicial scholar, and the expert on the career of former Chief Justice Warren E. Burger (1969-1986). He was also known for unexpected and tricky questions, and so my mind raced quickly through the various concepts and measures of judicial influence we had addressed in his seminar. Even though I was sort of sure he wanted me to land on John Paul Stevens, I boldly announced my pick, oblivious to the consequences. “Justice Kennedy,” I said.

The consequences were that after, I had explained why, I would spend a great deal of my time reading every one of Kennedy's written opinions and writing The Constitutional Jurisprudence of Anthony M. Kennedy. By the time I defended the dissertation in 2001, I decided that I had chosen well: Kennedy was emerging a so-called “swing-justice.” He was the “man-in-the-middle” having racked up a tally as the justice most often in the majority of 5-4 rulings and the least likely to author a dissent. Appointed by Ronald Reagan in 1987, Kennedy was a conservative, but he was also within the ideological central of the Burger and Rehnquist Courts. On closely divided issues, more often than not, as Kennedy went, so went the Court. 

Flash forward to 2017. The Supreme Court is ideologically split 4-4 and has been operating one justice down ever since the death of conservative icon, Justice Antonin Scalia, in February of 2016. President Obama’s nominee for the vacancy, Merrick Garland, was successfully blocked by the Senate Republicans who refused give the late-term appointment a hearing. Just two weeks into the job, President Donald Trump has nominated Judge Neil Gorsuch of the 10th Circuit Court of Appeals. Jurisprudentially, Gorsuch’s confirmation would not dramatically shift the ideological center of the Court insofar as it replaces one conservative with another whose jurisprudence is much in the same mold. But the next appointment might, depending on who is the next member of the Court to depart.

Memes have emerged encouraging the oldest member of the Court’s liberal wing, Justice Ruth Bader Ginsburg, to stay healthy, to please “eat more Kale.”  When asked last week which of her colleagues she would encourage do the same, the diminutive jurist did not hesitate: “Justice Kennedy,” she said. 

Justice Ruth Bader Ginsburg, speaking at the Rathburn Lecture on a Meaningful Life, 

Stanford University, February 6, 2017.
Photo credit: The Mercury News (2017). 

Ginsburg did not single Kennedy out because he is a member of the liberal block or because at 80 he is the Court's next oldest member (Ginsburg is 83). Most likely she chose Kennedy because he stands as the member of the conservative block who, given his particular brand of jurisprudence, is most open to persuasion on a number of key issues likely to come before the Court.   

As I have argued elsewhere, Kennedy is not a proponent of a “living constitution,” but his interpretative methodology is sensitive to what I’ve termed “emergent rights” – rights “that while perhaps not yet sufficiently well-grounded in history and tradition as to be considered fundamental have nevertheless emerged from ‘the continuing traditions of our society’ or are so closely connected ‘with interests recognized as private and protected’ as to be entitled to more than minimal review” (Parshall 2006, 268). 

Kennedy was the author of several rulings invalidating the juvenile death penalty, overturning Texas’same-sex-sodomy ban, and authoring the opinion recognizing the Constitutional right for two individuals of the same sex to legally marry – rulings which were influenced by his recognition of changing social views both domestically and abroad and his felicity to the concepts of liberty and equal protection (Parshall 2007).  In each of those rulings, and much to Scalia’s disdain, Kennedy had incorporated standards of international law and practice into his rulings (Hutt and Parshall 2007).   

A pragmatist, Kennedy has a deeply abiding respect for the Supreme Court as an institution and for the rule of law, which includes a commitment to stare decisis.  “Liberty has no refuge in a jurisprudence of doubt,” he wrote, when he voted, as part of a plurality, to uphold the central holding of Roe v. Wade. What he meant was that the public would have no faith in the Court as an institution, or in the security of their fundamental liberties, if the Court were to abandon its fidelity to precedent in the face of political pressure.   

On questions of executive authority, Kennedy has been deferential but has displayed a resolute commitment to the role of an independent judiciary.  When the Bush Administration sought to foreclose federal judicial review of habeas petitions bought by foreign detainees held as part of the War on Terror, Kennedy kept the door of jurisdiction open.  The “laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law” he wrote. In our system of separate powers, executive powers are strengthened not weakened by careful judicial review. 

There has been some speculation that it is Kennedy’s seat which Trump and congressional Republicans most covet (and that may be true).  Gorsuch’s nomination, some argue, may be an effort to convince Kennedy that it is time (and safe) to step down – Gorsuch is a former Kennedy clerk.  But that presumes that Kennedy is ready to go.  As long-time judicial observer, Dahlia Lithwick and her co-author, Neil Siegal note, Kennedy is “not stupid” and it is not likely Gorsuch would rule similarly in the cases which comprise Kennedy’s legacy.  With 28 years of service, Kennedy is the Court’s most senior justice (after the chief justice, who regardless his length of service, is automatically granted senior ranking as primus inter pares, “the first among equals.”  

Of the Court’s conservative members, Kennedy is the justice that President Trump would probably be rightly advised to most fear as least likely to be counted upon for support when it comes to several issues of likely importance to the administration (based upon policy directions the administration has already signaled). Justices Clarence Thomas and Samuel Alito are reliably conservative votes, adhering to an originalist interpretation and advocating for the strict construction of the Constitution.  Both have endorsed strong executive powers, have repudiated the incorporation of international jurisprudence and tend to favor governmental authority over claims of individual rights and liberties.  Chief Justice Roberts’ conservative voting record and affinity for judicial minimalism (a restriction of the judicial role) suggest that he would not be disposed to aggressively use judicial authority as counter-balance to executive authority – although Roberts does bear watching on some issues. When the institutional authority and independence of the federal judiciary is threatened, the modern Supreme Court has not hesitated to push back. Kennedy holds the view that judicial vigilance is an indispensable feature of our constitutional design and is necessary to the preservation of liberty.  

Original Photo credit:
http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg

Kennedy stands apart from his conservative colleagues, not just on the basis of his voting record, but because his rulings have reinforced the legitimacy, autonomy, and jurisdiction of the Court. In challenges to executive authority, in questions involving separation of powers and the division of power between the federal government and the states, on any issue likely to produce an ideological divide, litigants and their lawyers would be wise always to pitch their legal arguments in order to appeal to the “man in the middle.”  

John Roberts may be the Chief Justice – but it is Kennedy’s Court.  And it has been for awhile. 

References:

David Hutt and Lisa K. Parshall, Divergent Views on the Use of International and Foreign Law: Congress and the Executive versus the Court, Ohio Northern University Law Review Volume 33(1):113-152 (2007).

Lisa K. Parshall, Redefining Due Process Analysis: Justice Anthony M. Kennedy and the Concept of Emergent Rights, Albany Law Review, 2006, Volume 69(1):237-298.  

Lisa K. Parshall, Embracing the Living Constitution: Justice Anthony M. Kennedy’s Move Away from a Conservative Methodology of Constitutional Interpretation, accepted for publication by North Carolina Central University Law Journal, 2007, Volume 30(1): 25-74.  

Reconsidering the “Argle-Bargle” Surrounding Supreme Court Nominations

The Supreme Court consistently holds the highest approval rating of the "big three" American political institutions, unfailingly beating out the U.S. Congress and the President.  Americans tend to appreciate the closed-door debates and decision-making processes surrounding the Court while they recoil at the politicized and polarized nature of the presidency and Congress.    This in itself provides us with an interesting paradox: the more democracy we are exposed to, the more we tend to dislike it, all the while decrying and mourning the loss of democratic processes nationwide.  The American public unswervingly approves of democratic governance and seeks to be listened to by their elected leaders.  However, when we ask the American public how they feel about Congress, they consistently report favorability ratings below 15%.  The Supreme Court, however, routinely receives approval ratings above 60%.  So, as a nation, we cry out for more democracy, yet reward the most democratic branch of government (the U.S. Congress) with historically low approval numbers and the least democratic branch (the Supreme Court) with the highest numbers.  We like the sausage; we just don’t want to know how it’s made! 

The Supreme Court receives its high approval numbers because the American public does not witness any of the fighting that goes on behind closed doors.  When we, as a country, are exposed to a Supreme Court decision, we know that a case was presented to the Court and the Court rendered a decision—that most Americans respect as legitimate, even if they disagree with it.  In addition, there are no cameras allowed in the courtroom, adding to the secretive nature of the Supreme Court decision-making process.  In contrast, when we see policy passed, we witness the polarized, political fighting of Congress and the President, with talk about potential vetoes and veto overrides.  We witness Republicans and Democrats duking it out to craft the best policy they can, all the while making concessions to colleagues in an effort to actually convert that bill into a law. 

However, when we look at the nomination process of a Supreme Court justice, we can see that these nominations have become increasingly politicized over time.  In fact, Supreme Court scholars James Gibson and Gregory Caldeira tell us that “Politicized nomination processes do in fact subtract from the legitimacy of the United States Supreme Court…Anything that drags the Court into ordinary politics damages the esteem of the institution.”  They go on to argue that the politicized nomination process is what hurts the Court the most.  To test this idea that politicization of nominees harms the Court’s legitimacy, Gibson and Caldeira design an empirical test in which they track Supreme Court approval by using a three-wave panel survey in order to determine if advertisements run during a Supreme Court nomination (either supporting or refuting the current nominee) affected the Court’s approval.  What these political scientists uncovered was that those that were exposed to the ads tended to be less supportive of the Court.  These authors run a separate test to ensure that the Senate confirmation fight itself did not simply erode support for the Court, with ads receiving the blame for something they did not do, and find that the Senate fights do not weaken the Court’s legitimacy.  So, it is not the confirmation hearings, but rather the actual politicization that affects attitudes toward the Court’s legitimacy. 

Embed from Getty Images

The nomination process surrounding the current vacancy on the Court has been politicized from the moment Scalia’s passing was announced.  In fact, 15 minutes after media reports surfaced of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) reported that the Senate will not confirm a justice during an election year.  In response to McConnell’s statement, President Barack Obama has promised to nominate someone to fill the vacancy, whether the Senate wants to hold the hearings or not.  We are likely to see a very long, drawn-out nomination process.  With a Democratic president, a Republican-controlled Senate, and a seat on the Court vacated by a conservative icon, this nomination is likely to be a very long slog. 

So, ultimately who wins and who loses in a battle over the nomination for Antonin Scalia’s Supreme Court seat?  It could in fact be the Supreme Court itself.  If a politicized nomination process ultimately hurts the Court, the inevitably prolonged debate over who should fill Scalia’s seat could ironically hurt the political institution that Scalia dedicated his life to for the past 30 years.  

On Justice Scalia's Death: Why you Can't Divorce Law from Politics

Nothing exemplifies the inexorable connection between law and politics more clearly than the death of a Supreme Court Justice in the midst of an already chaotic presidential selection process.   Immediate reactions to the announcement of Antonin Scalia’s passing are fraught with the anticipated ferocity of the impending confirmation battle and the possible implications for not just the election itself, but for ideological future of the Court. Supreme Court nominations are, and always have been, inherently political, but to understand why the fight to replace Scalia is being characterized as  epic, it is necessary to have a strong understanding of history and politics.

Associate Justice Antonin Scalia (1936-2016).
The announcement of Scalia's death has sparked a political maelstrom that
will reverberate well beyond the 2016 elections. Official Court Photo.

First, not all vacancies are created equal.  Context is everything.  In immediate terms, we have a Democratic president in his last year of office and a Republican controlled Senate (54-46) in the middle of what is shaping up to be a long and divisive primary contest (for both parties), and against the backdrop of polarized politics and volatile electorate. If President Obama moves forward to place a name into nomination, he can expect a monumental battle with Senate Republicans – even if he opts for a consensus or moderate nominee (or perhaps even a sitting or former Senator).  Many Republican presidential candidates and some party leaders are vowing to not act on any nomination forwarded – a stand that is without precedent, constitutionally and politically speaking. There are multiple examples of Supreme Court nominations in presidential election years. Obama might consider a constitutionally permissible recess appointment, but that would still require a confirmation vote once the Senate reconvenes. If the confirmation of a new justice is denied or delayed until after the elections, the vacancy becomes the central issue for the candidates and voters alike - not just in the presidential election, but in the fight for Senate.  We are also halfway through a blockbuster 2015 Term of the Supreme Court which will not wrap up its business until late-June.  Any decision in which Scalia participated but has not been announced will be decided by an 8 person Court, making 4-4 outcomes a distinct possibility.  The Court has several big issues, including abortion, affirmative action, and voting rights, on its docket. Even if the most controversial of these issues are held over for reargument next term, threatened delays in the confirmation process may mean the Court is still a justice short of a full bench when it begins the 2016 term in October.

Antonin Scalia, Ronald Reagan, and William H. Rehnquist in 1986.  Scalia was one of four of Republican President Ronald Reagan's successful appointments to the Supreme Court. Renowned as a brilliant conservative jurist, Scalia was confirmed by a vote of 98-0. Most of the attention was on Reagan's simultaneous elevation of Rehnquist from Associate to Chief Justice (which was more narrowly approved by a vote of 65-33). Photo credit: Paul Hosefros 

A broader, historical view also provides critical context for understanding the impending debate. The balance (or tipping point) between the Court’s liberal and conservative blocs makes some vacancies more critical, and therefore much more political, than others.  Scalia’s appointment in 1986 was part of what judicial scholars have termed a conservative judicial counter-revolution – a backlash to the liberal rulings of the Warren Court (1954-1969) and the effort of Republican Presidents (primarily Nixon, Reagan and George W. Bush) to remake the Court in a conservative direction.  Scalia was not just a reliable member of the conservative majority; in many ways, he was its most iconic figure. It is not then just that a vacancy has opened up unexpectedly, it is that Scalia’s loss in particular marks a potential moment in which the ideological momentum of the Court in a rightward direction, which can be traced all the way back to Nixon’s victory in the tumultuous 1968 presidential election, is arrested or perhaps even redirected the opposite way.

Purely legal theories of judicial decision making emphasize analogous reasoning and the neutral application of legal principles and precedent. Political scientists, on the other hand, tend to view decision making in attitudinal and strategic terms – that is, they maintain that judicial outcomes are shaped by the underlying attitudes or ideology of the justices and their strategic interaction as a group.  Doctrinally, Scalia was extremely influential; he was a prolific writer guided by a clear jurisprudential vision and consistent interpretive methodology. His fidelity to a clear judicial philosophy, acerbic style and intellectual egoism did not, however, always lend itself to consensus building. Scalia’s absence thus creates a potential reconfiguration of relative influence within the Court’s conservative bloc, as well as within the Court as a whole. The lens of judicial behavior and politics thus offers insight as to the profound impact which Scalia’s passing may have on future decisions of the Court, both immediately and in the long run.

 Judicial vacancies offer the opportunity for presidents to reshape the Court and leave a lasting political legacy.  Scalia was one of 5 justices appointed by Republican Presidents; his replacement by a Democrat shifts the ideological balance. Judicial retirements can be politically timed; vacancies created by an unexpected death cannot. The Roberts Court: Front Row, left to right: Associate Justices Clarence Thomas (G.H.W. Bush, 1991), Antonin Scalia (Reagan, 1986), Chief Justice John Roberts (W. Bush, 2005), Associate Justices Anthony Kennedy (Reagan, 1987); Ruth Bader Ginsberg (Clinton, 1993); Back Row, left to Right: Associate Justices Sonia Sotomayor (Obama, 2009), Stephen Breyer (Clinton, 1994), Samuel Alito (W. Bush, 2006), and Elena Kagan (Obama, 2010). 

Whether viewed in terms of external or internal politics, law and the study of history and politics are intimately and inextricably intertwined. Our independent judiciary does not operate independently of the larger political system. As Justice Holmes famously remarked, in institutional terms, the Supreme Court appears sedate, but it is the kind of quiet that exists in the eye of the storm.

The History and Political Science Department offers numerous courses which help to place the law and presidential legacies through Supreme Court appointments within full historical and political context.  If you are interested in learning more about the importance of the Scalia vacancy -- or other current events as they unfold – please feel free to stop by the History & Political Science Department and be sure to check out the History & Government Club and the Pre Law Student Association.