Justice Antonin Scalia’s Death and the Future of the U.S. Supreme Court

A side view of the U.S. Supreme Court's Building

1. Who Was Justice Antonin Scalia and Why Is He So Important?

A: Justice Scalia, nominated by President Ronald Reagan in 1986, was the most senior member on the Court at the time of his passing. During his 30+ years on the Court, he has been widely credited ― on both sides of the aisle ― with resisting, and even reversing, the Court's ideological "drift" toward a "living Constitution" philosophy (in which the personal preference of the justices supersedes the written text and original understanding of the Constitution).The result? He influenced an entire generation of judges, lawyers and legislators in their understanding of the constitutional principles that have made this country great.

2. Can The U.S. Supreme Court Operate With Only Eight Justices?

A: Yes. The Court already does this in cases where a particular justice may have to recuse him- or herself for specified reasons, such as a conflict of interest or illness.

3. What's The Process for Confirming a New Supreme Court Justice?

A: Under Article II, Section 2, clause 2 of the U.S. Constitution, there is a two-step process: the President nominates someone to replace Justice Scalia, and the Senate performs its "advice and consent" duties. The Senate Judiciary Committee will hold hearings on the nominee and ultimately vote on a recommendation to the full Senate of either "yea" or "nay." The full Senate will then debate the nomination and vote. Fifty-one votes are needed to confirm the nominee.

4. This Is An Election Year. Will This Have Any Impact On The Selection Of A Supreme Court Justice?

A: Yes. The Senate operates under a set of rules, some written, some unwritten. One of those unwritten rules has been that, in a presidential election year, and out of respect for the incoming president's prerogative to nominate his or her own judges, the Senate will not work on confirmations of appellate judges after June or July (unless they non-controversial), and will not address Supreme Court nominations for that entire election year. However, the parameters of these various unwritten traditions can be hotly debated even in the Senate. If President Obama does nominate someone for the Supreme Court, as initial news reports have indicated he intends to do, expect the issue to become a controversial election year issue that dominates the media, and possibly even impacting the November elections.

5. What Happens To A Case In The Event Of A Tie Vote?

A: The legal outcome of a 4-4 tie vote would be to leave in effect the lower court's opinion ― from one of the dozen federal circuit courts of appeal. It would be as if the Supreme Court had not heard the case at all. There is also some historical precedent for the possibility that in certain cases, the Court may order that a re-argument take place after the new Justice is appointed.

6. Does A Split Decision Create A National "Precedent" For All 50 States To Follow?

A: No. The named parties in the case would be bound by the lower appellate court's decision; but without a majority ruling, national precedent would not be established. In addition, that decision would become a "precedent" only for the states within that federal circuit.

Current Example: The Supreme Court accepted earlier this year a case challenging the constitutionality of a Texas abortion regulation that protects the health and safety of women undergoing abortions (Whole Woman's Health v. Hellerstadt). A decision is expected in May or June. Should the Court divide 4-4 in that case (a real possibility), then the lower court decision from the 5th Circuit U.S. Court of Appeals would be the controlling decision. The 5th Circuit upheld the constitutionality of the Texas statute (a pro-life ruling), so in addition to Texas being affected by the decision, the federal and state courts in the other states in the 5th Circuit (Louisiana and Mississippi) would also treat the 5th Circuit as binding precedent as to the legal issues in that case.

7. Speaking of Current Examples, What Effect Will Justice Scalia's Death Have On The Little Sisters Of The Poor Case?

A: This critically important case concerning the right of religious nonprofit organizations to be free from coercion by the federal government via a mandate that forces them to provide possible abortifacients in employee health plans. It's more complicated as it represents a consolidated group of similar cases. This case could also foreseeably end up as a 4 – 4 tie. Ordinarily that would mean that the various lower court decisions that make up this appeal would remain in place. However, the lower court decisions conflict with one another. If each of those decisions remains in place in the circuit (and the states comprising that circuit) where they were decided, then, practically speaking, some parts of the country would be granted less religious freedom than other parts, and the resulting legal effects could prove chaotic.

If the Court is faced with a tie vote in either case, it could also decide to hold either case over to the next term when a new Justice has been appointed and a final resolution can be reached with a full bench. That would be the best scenario for The Little Sisters case.

© 2016 Focus on the Family.