Many of our readers are probably wondering how the death of Justice Antonin Scalia will affect the Supreme Court, and what to expect of the political battle already being waged over the nomination of his successor. A new “legal sidebar” report from the Congressional Research Service (CRS) provides a brief summary of these issues. Here are a few takeaways:
- With the loss of Justice Scalia, the Court loses perhaps its greatest champion of constitutional “originalism,” the theory that the Constitution should be interpreted according to the understanding of those who ratified the document in the 18th century.
- Justice Scalia’s absence could mean a four-to-four split in a number of cases involving high-profile issues such as abortion, immigration, and affirmative action. In the event of an even split, the Court can either affirm the lower court’s judgment (such a decision creates no binding national precedent), or schedule the case to be reargued after the vacancy is filled.
- Article II, Section 2 of the Constitution provides that the President shall make appointments to the Supreme Court “by and with the Advice and Consent of the Senate.” President Obama has stated that he plans to nominate a successor, but the confirmation process in the Senate may prove difficult. The CRS paper points out that very few Justices have been both nominated and confirmed in a presidential election year, the most recent example being Frank Murphy in 1940.
Future CRS reports will cover these issues in greater detail.