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On the passing of Justice Scalia and this year’s voting rights cases

February 14th, 2016, 10:04am by Sam Wang


An underappreciated fact about the U.S. Supreme Court is just how often its decisions are unanimous, or nearly so. In past years, the two justices who disagreed the most often were Ruth Bader Ginsburg and Samuel Alito – and even then, they only disagreed about one-third of the time. Above is a visualization of “disagreement distances” as visualized by Amanda Cox at The Upshot. Note the low percentages.

The late Antonin Scalia, a fixture of the conservative establishment, was the most charismatic of a three-justice bloc that included Clarence Thomas and Samuel Alito. Read this profile by Adam Liptak at the New York Times, and this rather amazing interview by Jennifer Senior at New York magazine.

Despite the Court’s frequent consensus, the closely divided cases are of critical importance. Without Scalia, many of the remaining decisions this term (i.e. between now and June) will split 4-4, in which case the lower court ruling will stand. Such decisions will be specific to the case at hand, and not establish a binding precedent for other cases. For an overview of the consequences, see this summary by Ian Millhiser at ThinkProgress, which includes climate change, immigration, voting rights, affirmative action, and more.

Because of the makeup of the lower courts, the views of the liberal wing of the court will have a slight advantage – but not as great as if the Senate confirms a successor named by a Democratic president, whoever he/she is. Historically, presidential election-year appointments have been routine (link: SCOTUSblog). This year, we’ll see. Senate Republican leadership says they won’t consider a nomination…though after a few 4-4 ties, I wonder if they will eventually come around.

If I were a betting man, I would say that the Roberts Court’s impact on voting rights (link to Rick Hasen’s overview) is about to enter a very different phase. For example, consider two of this year’s cases. The Harris v. Arizona Independent Redistricting Commission case concerns the latitude that such Commissions have in drawing districts. Oral arguments occurred in December. The outcome depended on Justice Anthony Kennedy’s vote, but probably not any more. Now the case is virtually certain to favor the Commission.

And then there is the Evenwel v. Abbott case, which governs the question of how to draw districts to be equal in size – by population, or by voter registration? Equal population is the longstanding norm. That already seemed unlikely to change, now even more so.

Tags: 2016 Election · President · Redistricting · Senate

30 Comments so far ↓

  • Avattoir

    Forgive me if this looks like an insult, it’s not, since I don’t know you, but I think your conclusion on Justice Souter is naive.

    Senator McConnell’s announcement, and all the Congressional Republicans echoes of it, has nothing to do with “qualifications”. I have no doubt that President Obama could find hundreds, more I think, of qualified candidates.

    Nor would I expect the Senate Judiciary Cmte voices who will oppose whoever Obama nominates to couch their objections in terms of “qualifications”. They likely will come close, and sound as if that’s what’s happening; but their rejection will be couched in other terms, like ‘radical’, ‘political’ and such.

    This is about a weak Congressional majority under attack from the party base for failing to deliver on promises. This is a promise they can deliver on, or so McConnell must have thought (McConnell, of course, has been wrong on many many things before, particularly when it comes to things President Obama wants done.).

    This is also about the McConnell Plan, if you will, I think more a Heritage Institute plan, to obstruct this president in particular and Dem presidents in general on every front.

    This is about the McConnell-Heritage Plan to erase from historical memory a minority person who, as president, produced, overall, one of the best presidential records of the last 115 years.

    They tried to demonize him, to frustrate him, to goad him, to find any excuse to impeach him, and, finding none, they will now proceed to try to erase him.

  • Mark F.

    They don’t have to deem him unqualified, they can reject him for ideological reasons. Charles Schumer has been quite clear he will never vote for a conservative.

    • JayBoy2k

      Exactly,
      I do not understand what all this blather is about. Just ask Obama to bring forward anyone he likes and let him gather 14 !!!! Republican Senators in order to get a confirmation.
      This seems easy. The only way to have a chance of having a Republican appoint Scalia’s replacement is to wait 11 months.

  • David Fry

    All this 4-4 decision musing assumes Anthony Kennedy sides with the conservative wing. His life has been dedicated to the Constitution, of course, and he often takes a moderate position on things. Might he be insulted by the GOPs refusal to fulfill its obligation and vote on Obama’s notation, and punish them by voting with the liberal wing on some of the outstanding cases?

    • David Fry

      “notation” should be “nomination”. Sorry.

    • whatever next

      Hopefully not. There’s no place for vindictiveness or playground politics on the Supreme Court, one would like to think.

  • Violet

    There’s another mind-blowing scenario, which is if Republican takes White House, but Dems take Senate, Obama can try to ram through his nominee in the 17-Day gap before Inauguration. I believe Clinton got a bunch through this way in 2000, though I’ll research this more.

    It is plausible some red states could vote for a Dem Senator, like in ND and MO in 2012.

  • pechmerle

    Olav, you are missing a key point about Souter:
    He was acceptable to Republicans in 1990 mostly because they didn’t know a lot about him and he didn’t say anything controversial during the confirmation process. During his years on the Court, however, he moved steadily to the left of center in the positions he took, eventually becoming more aligned with Breyer, Ginsburg, and Stevens. His performance was a big disappointment to Republicans. There is no way that Souter would be ideologically acceptable to the Republican Senate of today.

    By the way, this was also the history with Brennan. Brennan was recommended to Eisenhower as a conservative Catholic, although a Democrat from New Jersey. Eisenhower wanted to appear bipartisan with the appointment, while still getting what he had been led to believe would be a conservative justice. The Republicans were surprised and deeply disappointed at how Brennan became a leading liberal voice on the Court in his time.

  • Amitabh Lath

    I do not understand the McConnell’s statement against Obama’s appointments even before any names had been put forth. If the goal is to deny the liberals a justice, then just do that. Let him send someone up, and vote it down in committee or the full Senate.

    What good does announcing this level of intransigence do? I would have expected a statement along the lines of “I hope the president puts forth a jurist in the mold of the late justice blah blah…” and then find them all unacceptable.

    My thought is that the Republican party is fractured so much that this is an intra-party message to hang together. It tells the right flank that McConnnell is not a squish and gives the Susan Collinses their marching orders.

    • 538 Refugee

      I was at an event when the news broke. I was pretty shocked that by the time I got home it had already turned into a political cat fight. What happened to waiting for someone’s funeral as a sign of respect before fighting over the spoils? Is McConnell trying to bait Obama into making a hasty recess appointment? He’s certainly given him EVERY justification. I actually caught the tail end of last debate. Maybe he’s desperate to do anything he can think of to find a common goal to unify? Still, not waiting and thinking about this and at least giving the appearance of paying respect to Scalia may well backfire. I’m waiting to see if Obama plays that card. He has been measured and done pretty much the minimum to answer questions without politicizing someone’s death. I think he’s classy enough to know this is the wrong time and will act when appropriate.

    • DaveM

      I think it’s about motivating turnout in November by making the SCOTUS situation into a long-term constitutional crisis. Keep the rabble roused, as it were.

      If they “let him send someone up, and vote it down in committee or the full Senate,” they’re legitimizing his role in the process. Of course, his role in the process IS legitimate, but that fact runs counter to the myth that Obama’s presidential authority is somehow unsupported by law. And this myth appears to be fully embraced by an astonishingly large slice of GOP voters.

      Of course, as in 2012, the GOP bigwigs seem likely to be mistaking depth of zeal for
      breadth of zeal, and it’s hard to see how this won’t backfire in the end.

  • A New Jersey Farmer

    The GOP can argue all that it wants about precedent and voter intent. The facts are on the side of the Democrats. Obama is president, a vacancy has occurred, he has a constitutional duty to appoint someone to the court. If the GOP doesn’t want them, that’s their prerogative. Obama doesn’t have to be provocative with his pick; he only needs to show his intent with it.

    • Mark F.

      I agree, but the Senate can reject his pick. They can even reject two in a row, like the Democratic Senate did with Bork and Ginsburg. (The second rejection being for the absurd reason that Ginsburg smoked marijuana)

    • Todd S. Horowitz

      This is nothing like Bork. The Democratic Senate rejected particular nominees; they didn’t stiff Reagan indefinitely. Reagan in fact was able to appoint Kennedy. McConnell is saying “we will reject any candidate in advance”.

  • bks

    GOP rabid intransigence could help the Democrats in some Senate races.

  • pechmerle

    Olav, if (1) Obama attempts a recess appointment, (2) he names Stevens, O’Connor, or Souter, and (3) that retired justice agrees to be nominated, then I will buy you a glass of that unpronounceable Norwegian ale you desire.
    I’m not worried about my bet.

    • Olav Grinde

      Lyle Denniston of SCOTUSblog has a rather fascinating analysis concluding that it would be much more difficult for President Obama to make a recess appointment, than it was for President Eisenhower to appoint William Brennan.

      In short, the President’s powers to make recess appointments were somewhat curtailed by the Supreme Court and their June 2014 decision in National Labor Relations Board v. Noel Canning. A key part of that decision is that it is largely up to the Senate to decide when they take a recess; as 538 Refugee points out, the Senate can use technicalities to avoid opening up such a window of opportunity.

      I sent Mr Denniston an email inquiring whether an Obama re-appointment of f.ex. former Justice David Souter would change the evaluation of this.

      I also asked Denniston for his thoughts on President Obama nominating Souter as an ordinary appointment. Would this be possible for the Senate to resist?

      * Justice David Souter was originally appointed by Republican President George H.W. Bush in 1990. The Senate confirmed Souter by unanimous consent.

      Given this background, would it be possible for the Senate to reject an ordinary appointment (or recess appointment) of Justice Souter? How could they possibly deem him unqualified??

      I would think that the even the current Senate would have no choice but to confirm President Obama’s nomination.

  • Olav Grinde

    True. Sandra Day O’Connor is 85,
    and David Souter is only 76.

    That makes Souter younger than three current Supreme Court Justices: Stephen Breyer (77), Anthony Kennedy (79), and Ruth Bader Ginsburg (82).

    If he’s in good health, Justice David Souter would fit right in – and be extremely well qualified to resume his duties.

  • 538 Refugee

    A pivotal school desegregation case came before the court in Brown v. Board of Education. It was argued, and was set for reargument when Chief Justice Fred M. Vinson died. It has been reported that Frankfurter remarked that Vinson’s death was the first solid piece of evidence he had seen to prove the existence of God. It should be noted that this story was tied to a scheduled reargument in which Vinson’s vote could be crucial (where ostensibly Vinson was not disposed to overrule Plessy v. Ferguson). Some believe the story to be “possibly apocryphal.”[47]

    https://en.wikipedia.org/wiki/Felix_Frankfurter

    This is Obama’s appointment to make whether other’s thinks so or not. In tribute to Scalia let us quote the man himself:

    “Gee, I really don’t wanna get into — I mean this is — get over it.”

  • Olav Grinde

    That’s a fascinating summary! I was not aware that there was such a high degree of consensus on SCOTUS decisions.

    In the aftermath of Antonin Scalia’s death, there is a lot of focus on whether there is any chance of the Republican-controlled Senate confirming a Supreme Court Justice nomination by President Obama — or whether Obama should even make such a nomination.

    Michael Tomasky of the DailyBeast presents a rather fascinating possible scenario: President Obama can make a recess appointment. Apparently this is not without precedent.

    “The Senate is going to be on Easter recess from March 21 to April 1. What if Obama put somebody in during those 10 days? There’s precedent — in 1956, another election year, Dwight Eisenhower made a recess appointment out of William Brennan. He stayed on the court until 1990.”

    http://www.thedailybeast.com/articles/2016/02/13/replacing-scalia-obama-s-mission-impossible.html

    Given the current acrimony in Washington, and on the campaign train, I would expect a rather tumultuous debate if President Obama were to exercise such an option.

    • Olav Grinde

      * campaign trail

    • Petey

      FWIW, the venerable Lyle Denniston of SCOTUSblog is extremely dubious about the viability of a recess appointment…

      (My hope is that BHO nominates a lefty, young candidate who won’t be approved, but will have personal characteristics such that the GOP’s refusal ends up helping motivate Dems and Indies voters for November. My fear is that BHO nominates a very centrist older candidate who might well get approved, but would be far, far worse than we could get with a November win.)

    • Matt McIrvin

      The Senate majority has already explicitly said they won’t vote on anybody, which is pretty much an open declaration that they don’t regard Obama as a legitimate president, so I see no reason Obama shouldn’t escalate and make them regret that decision.

    • Olav Grinde

      Another question is whether President Obama could make a recess appointment less controversial by re-appointing one of the retired Supreme Court Justices.

      There are three living retired justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.

      It would be extraordinarily difficult for the GOP Senate majority to claim that any of these three are unqualified – especially given that all three of the above were in fact appointed by Republican presidents!

    • Jay Sheckley

      Olav– Interesting idea appointing a retiree.
      Of course, Stevens is 96.

    • 538 Refugee

      The Republicans have taken to having a skeleton crew in town and claiming there is no recess. I don’t remember what the outcome of that was. I think the courts may have ruled in their favor on it if memory serves. I can’t find anything on it at the moment.

    • pechmerle

      Olav, from that same Daily Beast column:

      “And bear further in mind—the court may already have decided some of these [supposed 4-4] cases, because they’ve heard them, and they’ve quite possibly [already] voted on them. What happens after they vote is that they assign an opinion to someone. But they’re decided, so it’s not impossible that Scalia could reach up from the grave and have a part in deciding, by 5-4, to dismantle public-employee unions. ”

      But we’re saved! Tom Goldstein at SCOTUSblog tells us that is incorrect — the deceased justice’s vote already made in camera still counts only if the voted decision has already been publicly announced. Goldstein is an appellate attorney, with extensive practice before the Supreme Court. Tomasky is a journalist with a political science degree. Need I say more?

  • Petey

    Good basic rundown, Sam.

    FWIW, here’s the best basic rundown of how current cases in front of the SCOTUS will fare in a 4-4 court.

    And the tl:dr version:

    - WH Carbon Limit rules are saved.
    - Public Sector Unions are saved.
    - House Redistricting that would hurt everyone but Old Whites stopped.

    But there’s more at that link above. It’s concise and easy to read. I recommended interested folks click thru.