The Battle for the Supreme Court Is About to Go Mainstream

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Supreme Court Justices Scalia and Ginsburg Discuss First Amendment At Forum
Thanks to Justice Scalia's death, the Court will almost certainly be a key issue in the 2016 presidential contest.Photo: Alex Wong/2014 Getty Images

Less than two weeks ago, I wrote a column reviewing the huge issues that a deeply divided U.S. Supreme Court might soon face, and lamented that appointments to SCOTUS almost never rise to the level of big, publicly discussed issues in presidential elections. That likely changed with the death of Antonin Scalia on Saturday — soon enough before the end of the Obama presidency to let Senate Republicans get away with blocking the confirmation of anyone he might appoint, but far enough away to become an unavoidable source of controversy in both the primaries and the general election.

SCOTUS appointments have always been a big deal to liberal and conservative activists, particularly those focused on issues where constitutional law has had an important impact, such as abortion, civil liberties, federalism, and the regulation of businesses. That’s especially true with respect to the Court that Scalia’s death unsettled, where four consistently liberal justices were balanced by three-to-five conservatives, depending on where Chief Justice John Roberts and Justice Anthony Kennedy were on any given case. A recent string of 5-4 splits has heightened the atmosphere of uncertainty, with decisions pending on affirmative action, climate-change regulations, the president’s ability to control immigration prosecutions, and a new wave of state abortion restrictions. With the Court now requiring 5-3 margins to overturn lower-court decisions, and three other justices (two liberals and the conservative/swing Justice Kennedy) over the age of 75, the current presidential-election cycle is rapidly becoming one of the most portentous ever in terms of the future shape of constitutional law. 

The balance of the court is especially critical to conservatives stricken by Scalia’s death and fearful that their hopes of a truly and systematically conservative Court are in danger of slipping away. But it’s important to understand the other factor that ratchets up conservative anxiety over Court appointments to a high-pitch chattering whine: a legacy of betrayal by Republican-appointed justices. The best way to illustrate it is this: In 1992, the last time the Court had an opportunity to reverse Roe v. Wade, the decision that legalized abortion nationally, all five justices who voted to save Roe (O’Connor, Kennedy, Stevens, Souter, and Blackmun) had been appointed by Republican presidents. 

The presence of Clarence Thomas on the Court is the direct consequence of the massive backlash of conservatives to the “stealth” liberalism of George H.W. Bush’s first appointee, David Souter. Conservatives have been exceptionally vigilant ever since, especially during competitive GOP presidential nominating contests that have all but wiped out Republican dissent on abortion, gun rights, campaign-finance reform, and other constitutional issues. And it was no surprise that hours after Antonin Scalia’s death was announced, candidates at the GOP debate in South Carolina stumbled over each other to pledge categorical opposition to the naming of a successor by Barack Obama, and to assure their supporters that, if elected, they will appoint a sure vote for the Cause.

That will continue every time the candidates field questions from anxious ideologues. While there is far less paranoia on the left about the kind of justices Bernie Sanders and Hillary Clinton might appoint, Sanders’s announcement of an antiCitizens United litmus test for SCOTUS appointees will keep the topic active in Democratic circles, as will ever-louder Republican promises to re-criminalize abortion, reverse marriage equality, outlaw universal health coverage, and put tight limits on corporate regulations.

The frequency and intensity of talk about the Supreme Court being the ultimate prize in Campaign 2016 will help it to spill over from the usual backstairs talk of activists into the broader public arena. Four other factors should virtually guarantee it: (1) President Obama’s decision to move ahead with an appointment, which he will then use to dramatize Republican obstruction, as the Senate refuses to hold hearings or a confirmation vote; (2) the likelihood that attitudes towards the Court and the Senate’s confirmation powers will become issues in close Senate races in presidential battleground states like Pennsylvania and Florida; (3) the paralysis of the Court in key cases where, absent Scalia or a successor, SCOTUS will split 4-4; and (4) the prevailing conventional wisdom that the 2016 contest will be a “base mobilization” rather than a “swing-voter persuasion” election, making highly emotional issues like abortion, guns, money-in-politics, and climate change much more prominent. 

It is not clear, however, that the election will resolve the Court deadlock. No matter who controls the Senate next year, the minority party will have the power to stop Supreme Court confirmations via the filibuster (unless the majority party extends to SCOTUS the “nuclear option” Harry Reid utilized in 2011 to end filibusters over lower-court and executive-branch confirmations, a fateful step that could, of course, backfire when shoes are on different feet). A campaign year of escalating and mutually reinforcing promises to hang very tough on the Court could all but eliminate the possibility of compromise. 

So get used to the new reality: Fights over SCOTUS probably aren’t just for activists any more. Scalia’s replacement, if and when confirmed, could represent the definitive triumph of one vision of the Constitution over another.