Supreme Impact

The unexpected death last month of Supreme Court Justice Antonin Scalia has set off a massive political battle over who will succeed him—and it could have a major impact on critical cases the Court is now considering. (For more about how the Supreme Court works, see "5-Minute Guide to the Supreme Court".)

Scalia died in his sleep at the age of 79 while on a hunting trip in Texas. Almost immediately afterward, many Republicans said that President Barack Obama should hold off on nominating a replacement and leave the task to the candidate who wins November’s presidential election.

“The American people should have a voice in the selection of their next Supreme Court justice,” said Senator Mitch McConnell of Kentucky, the Republican majority leader. “This vacancy should not be filled until we have a new president.”

But Obama, who still has 10 months left in office, says it’s his job to choose a replacement. “I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” he said. “These are responsibilities that I take seriously, as should everyone.” 

The stakes are high. Until Scalia’s death, the nine-member Court had been split between conservatives and liberals, with one justice often providing a swing vote to tip a ruling one way or the other. For decades, Scalia was the Court’s most outspoken and influential conservative, so replacing him with a liberal—or even a moderate—would have serious consequences. 

If Obama succeeds in replacing Scalia, he would be the first president since Ronald Reagan to fill three seats on the Court. (Obama’s two previous Supreme Court nominees—Sonia -Sotomayor and Elena Kagan—replaced liberal-leaning justices, so the overall makeup of the Court didn’t change.) 

To be confirmed, a nominee needs to win a simple majority in the Senate. With 54 seats in the 100-member Senate, Republicans can block the confirmation if at least 51 of them vote against Obama’s nominee.

The vacancy on the Court has already become a huge issue in the presidential election. Many Republican candidates have said that such an important opening shouldn’t be filled during a presidential election year. 

“Justice Scalia was an American hero,” Senator Ted Cruz tweeted. “We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

Meanwhile, many Democrats are accusing Republicans of trying to sidestep the Constitution. 

“I have news for Republicans who would put politics over the Constitution,” presidential candidate Hillary Clinton tweeted. “Refusing to do your duty isn’t righteous, it’s disgraceful.” 

Many experts say that Republicans, who hope the next president will come from their party, are taking a risk by seeming to obstruct Obama’s nominee. Both Democrats and Republicans have blocked Supreme Court nominees in the past, but the Senate has never taken more than 125 days to vote on a new justice. If the Senate waits for the next president to take office before voting, there could be at least a year-long vacancy on the Court.

For now, Scalia’s death leaves the Court shorthanded. This term, the justices are set to decide many important cases, including ones that involve voting rights and affirmative action.

With eight justices, the Court could deadlock on a decision, 4-4. If that happens, the Court can let the lower-court ruling stand or it can schedule the case for reargument in the next term, in the hope that it will be decided after a new justice is appointed.

“It has been an extraordinarily long time since the Supreme Court [was] forced to deal with a departure that occurs in the middle of the term,” says Justin Driver, a law professor at the University of Chicago. “This event almost certainly throws many cases that had been tentatively decided by 5-4 margins into grave doubt, and will likely require the justices to reassess many opinions.”

Scalia’s death is also a reminder of the huge consequences that can follow from a single change in the Court’s makeup—and of how much timing can matter. On the Tuesday before Scalia’s death, for example, the Court’s conservative majority blocked President Obama’s effort to regulate emissions from coal-fired power plants. (See “The Real Effects of Climate Change") Had the justices waited until their next regular conference, scheduled for the Friday after Scalia’s death, to vote on the request for the new rules to be put on hold, the regulation would have remained in place.

Scalia, who was appointed to the Court in 1986 by President Reagan, was the longest-serving member of the current Court. In 2008, he wrote the landmark Second Amendment opinion that established for the first time that individuals have a right to own a gun for self-defense. 

Whether you agree with his -rulings or not, experts say, his impact will be
felt for a long time. “Justice Scalia’s sad and untimely death will cast . . . a shadow over the Court as a whole,” explains Harvard law professor Laurence H. Tribe, “at least until a successor is nominated and confirmed.”

*With reporting by The New York Times