Editor's Note :

Editor's Note :

Here is a link to all our coverage related to the passing of Justice Scalia.

Menu of this weekend’s coverage

By on Feb 14, 2016 at 3:23 pm

Justice Antonin Scalia was found dead yesterday at a ranch in Texas, after apparently having died in his sleep. Here is a collection of our coverage:

Tom Goldstein provides first reactions and explains what happens to this Term’s close cases. Tom writes that Paul Watford is the most likely nominee. He also clarifies that cases resulting in tie votes will likely be reargued next Term.

Lyle Denniston reports on comments by the Chairman of the Senate Judiciary Committee and President Barack Obama. Lyle also analyzes recess appointments to the Court and comments on Scalia’s place in history.

Amy Howe addresses Supreme Court vacancies in presidential election years.

We also provide a round-up of other news coverage.

 
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I previously wrote that cases in which the Supreme Court is four-to-four after Justice Scalia’s death would be “affirmed by an equally divided Court.”  I now believe that is wrong.  There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.

Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia.  It could be as long as a year from now – well into the Court’s next Term.  But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess.  Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.

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Commentary

History will be kind to Justice Antonin Scalia — if the future fully appreciates his scholarship, his inventiveness in legal thinking, and his beguiling cleverness with words.  It will not remember him well for his air of superiority, the sting of his rhetoric, his frequent disdain for collegiality, his exaggerated estimate of himself as a comedian and thespian.

Within the Court and among the panoply of past Justices, Scalia was as much the originator of a school of legal philosophy as Louis Brandeis, as gifted a legal craftsman as Robert L. Jackson, as influential an intellectual as John Marshall Harlan (the second), as path-breaking as Earl Warren.

But he also would become the most polarizing figure on the Court since George Sutherland, as impervious to changing times as Samuel Miller, as condescending as Felix Frankfurter, as self-absorbed as William O. Douglas, as controversial as Roger Taney.

In short, history will find him a deeply puzzling, but profoundly interesting, paradox.  He was, as journalist and author Joan Biskupic anointed him, an “American Original.”

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In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities.  First, fill the Scalia seat by getting a nominee confirmed.  The stakes could not be higher:  the appointment could flip the Supreme Court’s ideological balance for decades.  Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election.  Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.

Those priorities reinforce each other.  The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward.  Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee.  So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.

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Here is the text of President Barack Obama’s remarks on Saturday, as reported in The Washington Post:

President Obama on Saturday, in Rancho Mirage, Calif., addressed the death of Supreme Court Justice Antonin Scalia. Here is the full text of his remarks:

PRESIDENT OBAMA: Good evening, everybody. For almost 30 years, Justice Antonin “Nino” Scalia was a larger than ­life presence on the bench: a brilliant legal mind with an energetic style, incisive wit, and colorful opinions. He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time. Continue reading »

UPDATED Sunday 8:48 a.m.   The Senate is currently in recess until February 22.  The recess began on Friday.  Whether this opens an opportunity for a recess appointment depends upon how Senate leaders interpret an adjournment resolution approved last Friday.  That will determine whether it will meet for brief activity during the recess, which could close that opportunity.

Analysis

The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the Chief Executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action.

Within a few hours after the death of Justice Antonin Scalia, it became abundantly clear that, first, President Obama will choose a possible successor and try to get the Senate to go along, and, second, the GOP leadership of the Senate say they will try to block any such nominee from final approval.

If that does result in an impasse, President Obama may ponder the possibility of putting on the Court a new Justice of his choosing, to serve temporarily.  The problem, though, is that less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver.

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In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year.  The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.     Continue reading »

UIPDATED 8:28 p.m.  The Senate majority leader, Mitch McConnell of Kentucky, immediately made clear that the Senate GOP leadership will resist any nominee to succeed Justice Scalia.  He counseled waiting until there is a new president in office.

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Charles Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, said Saturday night that the Senate should not act on any new Supreme Court Justice’s nomination until after the November presidential election.  Although the Republican leadership of the Senate presumably could overrule Grassley on the point, there will be heavy political pressure on those leaders to leave the nomination to President Obama’s successor.

Here is the key part of the chairman’s announcement: “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.  Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

It seems almost a certainty that there will be a fight in the Senate on how or whether to proceed.   The Democratic leader, Senator Harry Reid of Nevada, issued a statement with this argument;

“The President can and should send the Senate a nominee right away.  With so many important issues pending before the Supreme Court. the Senate has a responsibility to fill vacancies as soon as possible.  It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.  Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”

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Justice Antonin Scalia was found dead today at a ranch in Texas, after apparently having died in his sleep. This blog’s Tom Goldstein provides first reactions and explains what happens to this Term’s close cases.

Early coverage comes from NPR’s Nina Totenberg, Tony Mauro of The National Law Journal (subscription or registration required), Susan Page and Richard Wolf of USA Today, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, CNN, Gary Martin and Guillermo Contreras of San Antonio Express-News, Julie Fancher of The Dallas Morning News, and Harper Neidig and Ian Swanson of The Hill.

Early commentary comes from Rick Hasen at his Election Law Blog, Ian Millhiser at ThinkProgress, and Sam Levine of The Huffington Post.

 
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The passing of Justice Scalia of course affects the cases now before the Court.  Votes that the Justice cast in cases that have not been publicly decided are void.  Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.  Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas.  In my estimation, the Court was likely to strike those provisions down.  If so, the Court would still rule – deciding the case with eight Justices.

Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case.  But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority.

There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings.  In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions.  It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.

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