Justice Scalia has died, a fact said to be confirmed by the Governor of Texas. Scalia was on a quail-hunting trip in Texas; although the reports say he died in his sleep.
While family and friends mourn, the rest of the world will be thinking of his successor and the political consequences of his absence. Supreme Court appointments in a lame-duck year of a Presidency are a difficult business; in the current climate it could be impossible unless President Obama finds someone of such stature that not to confirm him or her would be ridiculous. Even if such a person exists, it might be a heavy lift.
Most likely, the nomination will become part of the Presidential campaign, the visible stakes for which just went up a notch. Let’s at least hope that the candidates refrain from enunciating too many ‘litmus tests’ which could have the effect of opening the door for demands for recusal by anyone confirmed.
The gridlock in DC also raises the possibility that the 9th seat might be open for a long time. Certainly the political center of the court just shifted: even when Justice Kennedy votes with the conservatives, the result will be a 4-4 tie, affirming the lower court by an evenly divided court–a result that affirms the decision but does not set a national precedent.
In the short term, this new political balance may change the dynamics of the review of the EPA’s clean power plan: the 5-4 stay by the Supreme Court is no longer as strong a signal that an affirmance below would be reversal bait. On the other hand, less changes in US v. Texas (the immigration case), since there the lower court ruled against the administration’s actions in deferring deportations.
What happens to decisions that were already decided by a vote around the table but which haven’t been issued yet (opinions not finished writing)?
I don’t believe that posthumous votes are possible on the Supreme Court. I am prepared to be corrected.
I believe it would be better for the country overall if the seat was left empty for some time. SCOTUS has in recent decades turned into a defacto governing body, used by Congress as an escape valve. Almost everything SCOTUS does is easily done by, and better done by, Congress, but they refuse to do ANYTHING. Perhaps being forced to do something, might be helpful for a while. Let them start earning the money we give them.
SCOTUS is really not all that important in the great scheme of things, so long as we don’t have Congressional persons who are willing to SAY something and DO something, rather than hiding from the spectre of the next election cycle attack ads. One is hard-pressed to come up with very much that SCOTUS does that isn’t really just filling Congressional vacuum.
Obviously separation of powers cases comes quickly to mind.