2016 is now all about the Supreme Court: This is how Justice Scalia's death deadlocks the Court -- and changes presidential race

Republicans are likely to stonewall any Obama nominee, turning the '16 race into a Supreme Court battleground

By Paul Campos
February 14, 2016 9:58AM (UTC)
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U.S. Supreme Court justice Antonin Scalia (AP/Charles Rex Arbogast, File)

What are the legal and political implications of Antonin Scalia’s sudden death? First, in regard to the legal status of all cases currently before the Supreme Court, all of Scalia’s votes on those cases no longer count.

Justices cast their initial votes on cases in a conference, and the task of writing the majority opinion is assigned to a particular justice. Drafts of this opinion then circulate among those justices who voted in the majority, for comments and potential revisions.


But until the decision is formally issued, any justice is free to change the vote he or she cast in the conference. (For example, there is strong evidence that the Affordable Care Act was saved when John Roberts changed his mind after the initial conference vote, thus transforming what was originally the majority opinion in the case into the dissent).

This fact has serious practical implications for several important cases the Court is currently considering.

For example, it now seems likely that a crucial labor law case that seemed fated to deal a serious and possibly fatal blow to many public sector unions will come out the other way.


And Justice Scalia’s death may well have also saved the Obama administration’s most critical climate change regulations.

This is because what were poised to be 5-4 decisions will now feature 4-4 votes -- and a tie vote in the Supreme Court leaves the law unchanged.

This brings us to the political implications of Justice Scalia’s death. These seemed destined to have a big effect on both the presidential race, and various Senate contests which will determine whether the Republicans retain control of the body that must approve Supreme Court nominations.


Every four years we hear that the winner of the presidential election may well play a key role in shaping the composition of the Court for decades to come. This will not be a hypothetical scenario in 2016, as two things seem highly likely: Senate Republicans will not approve anyone President Obama nominates to replace Scalia, and the next president will at the very least end up choosing two Supreme Court justices, if not more (Justice Ginsburg’s departure from the Court prior to 2021 seems practically certain, -- she turns 83 next month and is in precarious health -- and one or two other current justices may well be gone by then as well).

Obama will surely take into account that an increasingly radicalized and confrontational GOP is not going to allow its senators to approve anyone to the Court that Democrats would consider minimally acceptable. This suggests he will nominate someone whose rejection by the Senate will do maximum damage to the electoral chances of both the Republican presidential nominee, and of the GOP senatorial candidates who will be in competitive races in November.


In fact it’s quite possible that the rejection of Obama’s nominee (or nominees) will become the central issue of the presidential campaign, as we are now poised to spend the next year, if not longer, with a fundamentally deadlocked Supreme Court.

Indeed, it’s well within the realm of possibility that the politics of this situation will play out in such a way that public disgust over how a radicalized GOP reacts to Obama’s nomination(s) ends up playing a crucial role in handing both the presidency and the Senate to the Democrats.

And should that happen, we can then look forward to Hillary Clinton or Bernie Sanders choosing Barack Obama to succeed Antonin Scalia.

Paul Campos

Paul Campos is a professor of law at the University of Colorado at Boulder.

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