Election 2016

How Scalia's Death Could Upend the Presidential Election and Spark the Biggest Political Battle of Our Times

The future of key constituencies in both parties, but especially Democrats, is at stake.

Photo Credit: Image by Shutterstock, Copyright (c) Dan Holm

The unexpected death of arch-conservative Supreme Court Justice Antonin Scalia may spark the biggest political battle of our time, as almost every major constituency in America—but especially Democrats—is affected by cases now before the Court.

Cases involving the fate of undocumented immigrants, voting rights and political representation in communities of color, women's reproductive choices, university admissions and race, environmentalists and climate change policy, and more are before the current court. This term was widely seen as being a conservative bonanza, but now those bets are off.

Legal experts are saying that an evenly split 4-4 court means many cases will revert back to the decision of the last court where they were heard—or in the Obama administration's case, the federal rules or executive orders issued. That includes the GOP’s lawsuit to overturn Obama’s orders on immigration that affect 40 percent of America’s 11-plus million undocumented people. Or the red state challenge of the EPA’s climate change-inspired regulations, which the court recently stayed but remains to be heard.

The list goes on with cases heard last fall: The right’s attack on the California Teachers Association’s mandatory union dues, which seeks to defund and defang union organizing. The state of Texas’ ongoing effort to shut down its remaining reproductive health care facilities providing abortions. And two cases over rules that allow partisan gerrymandering or intentionally drawing legislative districts to dilute minority representation and political opposition.

Upcoming decisions will more than remind key voting blocks of the stakes in 2016's elections, not just for president but also for control of the U.S. Senate. There Democrats have the best chance in years to retake the chamber, because 24 Republican incumbents are up for re-election compared to 10 Democrats.

The political lines are already being drawn. Scalia’s philosophy of constitutional originalism, whether one bought it or not, was to follow the precise letter of the founders’ dictates. He would likely not argue with Obama’s duty to select the next justice, as the Constitution's Article II states. But today’s Republicans have never let laws get in their way, as The New Yorker’s John Cassidy noted, even if it creates a presidential election advantage for Democrats.

Before Scalia’s funeral arrangements had been announced, the GOP’s leaders and several presidential candidates said Obama should not pick a nominee, and the Senate should not confirm one if he did. (The White House issued a statement saying it would proceed). Senate Majority Leader Mitch McConnell, Ted Cruz, Marco Rubio, Ben Carson and others all rejected Article II.

“The party appears to be intent on hurtling into a deep pit,” Cassady wrote. “It is well known, and accepted on both sides, that the Democrats’ hopes of holding on to the White House hinge on getting a high voter turnout on November 8th. If you were a Democratic strategist trying to maximize turnout, what would you most like to see?”  

But if Obama’s nominee were confirmed, the opposite also could be true, tweeted Obama advisor David Axelrod. “Senate roadblock to any Scalia replacement could be burdensome issue for @GOP in fall. But [GOP] base would erupt if Obama nominee confirmed.”

There is plenty of speculation, including the notion that Obama could make a temporary recess appointment while the Senate is adjourned. Justice William J. Brennan, Jr., began his historic career on the court that way. There’s also speculation that inaction by the GOP-controlled Senate could lead to a November voter turnout that restores a Democratic Senate majority, which, after being sworn in, could affirm Obama’s nominee. The next Congress takes office several weeks before the next presidential inauguration. 

Speculation aside, what’s likely to unfold as the Court moves toward the end of its term in June is a series of decisions that will roil the political spectrum.

For Democrats, it will be a reminder that not only is the court increasingly powerful in an era of congressional gridlock and an Obama nominee could historically rebalance the court, but it also will underscore that they need to nominate a presidential candidate who knows how to handle Republicans’ obstructionism. For Republicans, who have relentlessly opposed and criticized Obama on domestic and foreign policy, it is more fuel for their ever-increasing call to arms over the end of America as they see it.

What happens next on the court is cases that already have been decided but that have not been publicly announced will have Scalia’s vote voided. He may not necessarily have been the deciding vote in 5-4 cases, but if the Court’s conservatives lined up in decisions then the resulting 4-4 tie means that the Court will end up affirming the last ruling, wrote Tom Goldstein at ScotusBlog.org. Such 4-4 ties will not set nationwide precedents, other legal writers said, adding the court could postpone some especially controversial cases until their next term, which starts in October.

Goldstein writes Scalia’s death is a lucky break for the mandatory union dues case. “A conservative ruling in that case is now unlikely,” he said, adding that other likely 4-4 cases involve Texas’ challenge to the one-person, one-vote standard for drawing political districts, cases challenging the way that Obamacare accommodates religious organizations under its contraceptive mandate, and the various Republican Party challenges to Obama administration executive orders. The Court, however, could still issue decisions favored by conservatives, such as in a case challenging the use of race and affirmative action in state university admissions, because before Scalia’s death one of the left-leaning justices, Elena Kagan had recused herself. 

The Court is in recess until February 22. When it returns, one of the first questions that it is expected to face was whether to stay—or suspend until they could hear an appeal—a federal district court’s decision in North Carolina that concluded the state's Republican majority drew district lines in a such as way that excessively packed African-Americans into two congressional districts in 2011. With no possible 5-4 majority, it appears likely that the Court will not approve a stay—meaning that North Carolina will quickly have to redraw district lines and include African-American voters in districts that are now held by the GOP.

It is cases like that with big regional and national overtones, and the GOP’s pledge to thwart any Obama nominee, that will bring the Supreme Court into the presidential race in ways not seen in recent years. And the issues in play, from from a Democratic Party perspective, will affect every major constituency: immigrants, communities of color, women, students, environmentalists and more.

In other words, given the Supreme Court's extraordinary power and reach, Scalia's unexpected passing could ignite the largest political battle seen in years.

 

 

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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