Introduction: The Court after Scalia
on Aug 30, 2016 at 2:21 pm
In the weeks that followed the February 13 death of Justice Antonin Scalia, it became clear that his absence was having a significant impact on the Court. Not only was the Court granting review in fewer cases than normal, but it deadlocked on several in which it had heard oral argument and issued rulings that had all the hallmarks of a compromise in others.
With Senate Republicans still refusing to act on President Barack Obama’s nomination of Chief Judge Merrick Garland to succeed Scalia, it has become even more clear that the question of who will fill the vacancy hinges on the 2016 presidential election. If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.
The conventional wisdom may well be true for the Court as a whole. But what does it mean for some of the high-profile issues – affirmative action, gun control, reproductive rights, and the death penalty, to name just a few – on which the Court has ruled or may rule in the years to come? We are delighted to kick off today a symposium that seeks to answer that question. Over the next few weeks, guest authors will explore the impact that a conservative or liberal nominee might have on some of these areas of the law.
In some areas, our authors predict, the nominee could indeed result in a shift in the Court’s jurisprudence. Fourth Amendment scholar Orin Kerr, for example, suggests that if he is eventually replaced by a more liberal Justice, Scalia’s death could “stall” and possibly reverse “further chopping away” at the exclusionary rule, which renders evidence obtained in violation of the Constitution inadmissible.
But in other areas, our authors suggest that, even if Scalia is replaced by a more liberal appointee, the Court’s jurisprudence may stay much the same – potentially disappointing liberal interest groups. Second Amendment scholar Adam Winkler cautions gun-control groups, for example, that even a Supreme Court with a liberal majority is not likely to overturn District of Columbia v. Heller, the Court’s 2008 decision holding that the Second Amendment protects an individual right to have a gun in one’s home. He contends that, although “there is little for liberal supporters of gun control to gain from overturning Heller, there is much for them to lose” because of the “serious backlash” that such a ruling would generate.
The same may be true, writes Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, for affirmative action if Scalia is replaced by a conservative Justice. Emphasizing that “the legal landscape has already shifted,” she argues that “[e]ven if a conservative were confirmed, there would still be a majority for the established precedents that support diversity in higher education.”
And the unique role that Scalia played on the Court – let’s call it Scalia being Scalia – could also lead to changes in the tone on the Court even if it does not directly affect the substance of the Court’s decisions. Kansas Solicitor General Stephen McAllister observes that, “even if a conservative replacement were to vote exactly like Justice Scalia would have voted, there might be a different atmosphere surrounding the Court’s resolution of capital cases, one likely to be less sharp and less emphatic.”
This blog’s Andrew Hamm has done yeoman’s work in recruiting our authors and organizing the symposium. We hope that you enjoy it as much as we have enjoyed putting it together!