by Mary Masterson
With the death of Justice Antonin Scalia, the Supreme Court has lost one of the most influential judicial voices of the late 20th century. Without Scalia’s distinctive conservative weight, the balance of power on the court has already shifted left, with several of this term’s highest-profile cases now likely to turn in a new direction.
And unless President Obama and the Republican-controlled Senate can defy partisanship in an election year and speedily agree on a replacement for Justice Scalia, the empty seat at the Supreme Court is likely to remain unfilled for a very long time.
What does Scalia’s death mean for the Court?
Without Scalia, the court has already changed. Never again will we see the familiar five-vote conservative majority, with Scalia joined by Chief Justice John Roberts, Samuel Alito, Clarence Thomas, and Anthony Kennedy (often the swing vote). In its place is a tighter divide, with four right-leaning judges matched by their four left-leaning partners. And the consequences of this shifting balance of power will be swiftly felt.
A number of high-profile cases on the court’s current docket will end differently because Scalia won’t be there.
Of the utmost importance to educators, is the upcoming Friedrichs case. Many court-watchers expected a 5-4 vote that could have severely undermined the power of public sector unions. Now, however, that case seems poised to end with a 4-4 tie, although this is by no means a certainty. And when there’s a tie at the Supreme Court, the decision of the lower 9th Circuit court stands — which in this case was a victory for the unions (upholding fair share fees, at least for now).
NYSUT along with AFT and NEA have identified an additional three options for what may happen next in Friedrichs:
- The justices could decide the case on the merits if they can find a five member majority. (Most court observers believe this is unlikely.)
- The justices could decide some portion of the case on the merits – such as the “opt out” versus “opt in” issue – if they can find a majority agreement on a specific issue – and affirm the rest of the case by a 4-4 vote.
- The Friedrichs case could be put over to the next term when it could be re-argued after the vacancy is filled.
How long can Scalia’s seat remain vacant?
There is no time limit on this. Unless and until the Senate approves a new justice, the Supreme Court will have eight members.
Long vacancies aren’t unprecedented. Under President Nixon, there was an opening that lasted a full year, as the Senate blocked two different nominees before accepting a third.
This time around, Republicans have good reason to keep the space open. If they win the presidency in November, they’ll be able to nominate a much more conservative candidate than anyone they could expect from Obama.
Then again, there’s a risk to this strategy. Should Democrats win big in November, taking the White House and also reclaiming control of the Senate, Scalia’s replacement could end up being as venerated a liberal jurist as Scalia will certainly be among conservatives.
What implications does HCT Interim President, Tom Glenn, see for educators?
Tom Glenn believes, “As recent events have shown, very little is certain with regards to the outcome of the U.S. Supreme Court decision. However, we can be certain that now is not the time for complacency or to rest on laurels of what may falsely appear to be a “tragedy averted.” Coincidentally, the national attacks by special interest billionaires on public sector unions will not die with this one decision. Many more anti-union assaults continue to make their way through the court system in an effort to decimate a once indefatigable cornerstone of democracy. Furthermore, these events underscore the need for our members to stay actively informed and engaged in the election process. It is evident more than before that our strengths will lie in engaging and organizing our members around a common goal – to secure the Labor movement for our generation and those yet to come!”