The Supreme Court After Scalia

Cartoon by David Sipress, September 26, 2016, The New Yorker

There has not been a liberal majority of Justices since Nixon was President. If Hillary Clinton is elected, that will change.

History, as a rule, unfolds slowly at the Supreme Court. The Justices serve for decades. The cases take years. The Court’s languorous work schedule includes three months of downtime every summer. But the death of Antonin Scalia, earlier this year, jolted the institution and affirmed, once again, a venerable truism, attributed to the late Justice Byron White: “When you change one Justice, you change the whole Court.” For the first time in two generations, the Court’s liberals were ascendant. After many years of liberal Justices struggling to win big cases, suddenly they couldn’t lose them. But this, too, might represent only a brief interregnum. The future of the Supreme Court always depends principally on the outcome of Presidential elections; this year’s race will have a nearly immediate impact on the fate of the Court. But the changes may only begin with a replacement for Scalia. Stephen Breyer is seventy-eight, Anthony Kennedy is eighty, and Ruth Bader Ginsburg is eighty-three. If all of them have to be replaced in the coming four years, the next President will have a Supreme Court legacy comparable to that of Richard Nixon, who filled four vacancies in a little more than two years, or Ronald Reagan, who filled four vacancies in seven years, or Dwight Eisenhower, who filled five vacancies in five years.

The membership of the Court now reflects the partisan divisions in the rest of the country, where crossover voting rarely takes place anymore. There are only four Republican appointees on the Court: Chief Justice John G. Roberts, Jr. (nominated by George W. Bush), Kennedy (Ronald Reagan), Clarence Thomas (George H. W. Bush), and Samuel Alito (George W. Bush). They are matched by four Democratic appointees: Ginsburg (Bill Clinton), Breyer (Clinton), Sonia Sotomayor (Barack Obama), and Elena Kagan (Obama). “There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”

Scalia’s final vote as a Justice provided an apt symbol for the state of the Court at that moment. The case combined several of the conservatives’ pet peeves, which include environmental protection, unilateral executive action, and, especially, Obama himself. “Judicial conservatives for a long time believed in a very powerful executive branch, but in more recent years there has been sharp skepticism toward Presidential power,” Justin Driver, a professor at the University of Chicago Law School, told me. “A skeptic might say the real issue is who is the occupant of the Oval Office. Certainly, there has been a noticeable amount of hostility to President Obama’s executive authority on the right.” In the summer of 2015, the Environmental Protection Agency issued a long-awaited regulation aimed at combatting climate change, requiring electric power plants to sharply reduce their emissions. “It was probably the most important environmental regulation in history, since power plants account for about half of the carbon-dioxide emissions in the country,” Richard Revesz, a professor at New York University School of Law, said.

Twenty-nine states sued to block the regulation. In the United States Court of Appeals for the D.C. Circuit, an ideologically diverse panel of three judges unanimously declined to stay the regulation while the case proceeded. Nevertheless, the five Republican appointees on the Supreme Court blocked the regulation from going into effect. “It was totally unprecedented for the Supreme Court to step in and grant a stay when the D.C. Circuit had denied the stay and was still looking at the merits of the case,” Revesz said. “It reflected an attitude of hostility toward the Obama Administration.” Even though the record of the case consisted of thousands of pages, the Supreme Court imposed the stay in just a few days. The last briefs in the case were filed with the Justices on Friday, February 5th, and they imposed the stay, by a vote of five to four, on Tuesday, February 9th. Scalia then left for a hunting trip in Texas. He was found dead in his room, of natural causes, four days later.

One person who correctly gauged the significance of Scalia’s absence from the Court was Mitch McConnell, the Senate Majority Leader. An hour after the death was confirmed, when other politicians were offering condolences to the Scalia family, McConnell issued a statement announcing that the Senate would not allow a vote on any nominee whom President Obama might put forward for the seat. “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new President.” Such premeditated obstruction by a Senate leader, aimed at a President with nearly a full year remaining in his term, was without precedent, but McConnell has shown no sign of wavering. (He has also said repeatedly that he will not allow a confirmation vote in the lame-duck period, after Election Day.)

The remaining Justices, too, immediately saw the significance of Scalia’s departure. Partly, this had to do with his outsized personality and his long tenure on the Court. He died at the age of seventy-nine, having served since 1986, which made him the senior Associate Justice. His energetic presence and provocative questions dominated the Court’s public proceedings. Scalia never played devil’s advocate in the courtroom; he used his queries to make arguments to his colleagues, and, just as often, to the broader public. He was best known for championing originalism—the theory that calls for interpreting the Constitution as its words were understood to mean at the time of its ratification. He was never able to bring a majority of his fellow-Justices around to this approach, but he was still on the winning side in all the great conservative victories of his era, including Bush v. Gore, which gave the Presidency to George W. Bush; Citizens United v. Federal Election Commission, which hastened a deregulation of American political-campaign funding; and District of Columbia v. Heller, for which Scalia wrote the majority opinion, recognizing for the first time an individual’s right, under the Second Amendment, to own firearms. Almost everyone at the Court missed Scalia’s voice, but it was conservatives who missed his vote. On February 29th, Clarence Thomas, Scalia’s frequent ideological ally, asked his first question in more than a decade at an oral argument. He then resumed his customary silence for the remainder of the term.

The effect of Scalia’s absence could be seen in the first major case argued after his death. Scalia’s place—to the immediate right of the Chief Justice, where the senior Associate Justice always sits—was still draped in black crêpe on March 2nd, when the Court heard Whole Woman’s Health v. Hellerstedt. In recent years, especially after the Republican landslides in the midterm elections of 2010, many states had begun to restrict access to abortion. Texas imposed especially onerous new requirements on abortion clinics, insisting that they install hospital-level equipment and that their doctors have admitting privileges at nearby hospitals. These rules, which Texas lawmakers said were designed to protect women’s health, led to the closure of twenty-three of the forty-two clinics in the state. The plaintiffs in the case argued that the new rules had nothing to do with women’s health, and were a transparent attempt to limit women’s access to abortion.

Since Scalia’s death, one rule of Supreme Court practice has dominated the deliberations of the eight remaining Justices. When the Court splits four to four, the lower-court decision is affirmed, but the Justices don’t write an opinion and the ruling does not represent a national precedent. This meant that if the four Democratic appointees voted in lockstep—as they already tended to do in controversial cases—they would not necessarily win every case, but they couldn’t lose, either. The liberals could always prevent the establishment of a new Court precedent not to their liking.

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Source: The New Yorker, Jeffrey Toobin, September 26, 2016. Mr. Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.

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