How Antonin Scalia's Death Will Affect the Supreme Court

ABC News' Kate Shaw explains what's next for the court after Scalia.

February 15, 2016, 11:20 AM

— -- The unexpected death of conservative Supreme Court Justice Antonin Scalia this weekend has wide-ranging implications and raises numerous complicated questions. So what happens now?

We've asked Kate Shaw, an ABC News contributor and an assistant professor of law at the Benjamin N. Cardozo School of Law in New York, to provide some clarity.

Q: Describe Scalia's role on the court. Who appointed him? What was his reputation?

Justice Scalia was appointed by President Reagan in 1986, and confirmed by the Senate unanimously.

He was a towering intellect, especially well known for his advocacy of a method of constitutional interpretation known as originalism, which holds that interpreting the Constitution requires close examination of the original meaning of the Constitution; that is, its meaning at the time it was drafted and ratified. This led him, for example, to dissent strongly in cases protecting the right to an abortion under the Constitution.

He was also the court’s unrivaled prose stylist; he took the craft of writing incredibly seriously, and it showed.

After the retirement of Justice John Paul Stevens in 2010, he became the most senior member of the court after the chief justice.

Q: With which court ruling is he most associated?

There’s a pretty broad consensus that his most important majority opinion was D.C. v. Heller, the 2008 case in which the court for the first time held that the Second Amendment protects an individual right to gun ownership. Justice Scalia wrote for a five-Justice majority striking down D.C.’s handgun ban and holding that the Second Amendment protects the right of the individual to own a gun (though it left unanswered a number of questions about how heavily that right could be regulated).

Heller is significant not just because of the outcome, but also because it was a triumph of Justice Scalia’s originalist methodology: Not only the majority opinion he authored but the two dissents in the case grappled at length with documents from the founding era (and even much earlier).

Q: Ok, so where do things do from here? Is the court in session? Does the court continue to hear arguments? Will they still issue rulings? How does the court function with only eight justices now? How do they issue rulings if there's a tie, 4 to 4 justices?

The court is not sitting this week, but it will resume hearing arguments next Monday, and it will be eerie to return to a courtroom without Justice Scalia -- whose style of questioning was active, penetrating and, often, very funny -- and whose absence will be acutely felt by everyone in the courtroom.

In all likelihood, the court will continue deciding cases — both those that have already been argued and those that are scheduled for argument this spring — but with eight justices rather than nine, so that tie votes become a very real possibility. In cases that tie, 4-4, the lower court opinion will stay in place, but the court will issue no binding law for the rest of the country. This could have significant effects, for example, in a pending case involving the future of public-sector unions, Friedrichs v. California Teachers Association.

In Friedrichs, which was argued in January, the unions won below, but the court seemed poised to vote against the unions 5-4. But without Justice Scalia that vote would very likely be 4-4, meaning the union victory in the lower court would remain in place. Another similar case would sooner or later make its way to the court, but the outcome there would depend on the new justice.

Things get a little more complicated with some of the other pending cases, but tie votes are at least possible now in major abortion and contraception cases, and a case involving the president’s executive action on immigration, among others.

It is also conceivable that Chief Justice Roberts could decide to hold one or more cases over for a later term, though most court watchers are dubious about the likelihood of this happening. But he certainly has the power to do so, and he might be inclined to exercise that power in a case where a 4-4 decision would leave the law in hopeless confusion.

Q: President Obama said he'll nominate someone to replace Scalia. What's the confirmation process like?

The Constitution gives the president the power to nominate justices of the Supreme Court “by and with the advice and consent of the Senate.” While the Senate once largely rubber-stamped the president’s choices, in modern years confirmations have become increasingly contentious and politicized. The turning point in that regard was the failed nomination of Judge Robert Bork, who was voted down in the Senate in 1987 based on a widely held belief that his views were too extreme.

While two of the Justices on the current court were confirmed without reaching a filibuster-proof 60-vote threshold (Justice Thomas was confirmed 52-48, and Justice Alito was confirmed 58-42), it seems pretty clear for this vacancy that the only way a nominee will be confirmed is with a filibuster-proof 60 votes.

Q: How might a more liberal appointee by President Obama affect the court? Any individuals getting attention as possible nominees?

Well, virtually anyone Obama would nominate would be more liberal than Justice Scalia; it’s just a question of how much more liberal. The two names that seem to be coming up most frequently are both judges on the D.C. Circuit (where Justice Scalia sat before being elevated to the Supreme Court, as did Justices Ginsburg, Thomas and Chief Justice Roberts). The first is 48-year-old Sri Srinivasan, who was confirmed unanimously in 2013. He was previously U.S. deputy solicitor general, a partner at O’Melveny & Myers and a law clerk to Justice O’Connor and Judge J. Harvie Wilkinson. He also served in the Bush Justice Department, further burnishing his bipartisan credentials. He would be the first South Asian justice. The second is Chief Judge Merrick Garland, who’s 63 and was reportedly considered for the first two vacancies Obama filled (which ended up going to Justice Sotomayor and Justice Kagan). He’s moderate, extremely well respected, and, like Judge Srinivasan, has a chance of picking up at least some Republican votes.

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