Replacing Justice Scalia – The Implications of the Decision

Decorative Scales of Justice in the Courtroom

The death of U.S. Supreme Court Justice Antonin Scalia leaves a large seat to fill on the highest American court. The current 8 justices are split evenly between liberal and conservative ideologies. Thus, Justice Scalia’s replacement will drastically alter the manner in which the Court decides upon ground-breaking cases. Before the Court this term are cases regarding affirmative action, abortion, women’s rights vs. religious freedom, and labour rights. Coming down on one side or the other in all these cases can serve to drastically alter the landscape of American society and the liberty its citizens enjoy.

In a previous post I outlined the regressive nature of Justice Scalia’s rulings and how they served to undermine civil liberties. It is important to replace Justice Scalia with an individual who will serve to strengthen civil liberties. To appoint a justice that will fight for the evolution of the constitution, the advancement of minority rights and women’s rights, and not fight against them with discourse rooted in 18th century ideals.

The next appointee to the U.S. Supreme Court has the chance to reshape U.S. law for a generation and the ideological balance of the Supreme Court. There is so much at stake but unfortunately the issue became partisan immediately upon Justice Scalia’s death. With the Republican led Senate vowing to block any nomination by President Barack Obama, the next Supreme Court appointment could be made by the winner of the November Presidential election. There are so many far reaching decisions on liberty such as abortion, women’s rights, and minority rights, that the outcome of the election could shift the United States in two drastically different directions.

Only 3 of 112 justices to serve on the Supreme Court have been minorities. The current Supreme Court Justices hail from New York (4), California (2), Georgia (1), and New Jersey (1); Justice Scalia was also from New York. This is clearly unrepresentative of the United States as a whole. With only 9 justices, it is difficult to have true geographical or racial representation, however, a better balance can certainly be struck. This does not mean that a new appointee should be chosen solely on the basis of geography or race, nor does it mean that the current makeup cannot adequately perform their duties and uphold the constitution and the rule of law. However, quality justices come from every corner of the United States and from every group within it. For a more agreeable court that the majority of the citizenry can see themselves within a more representative balance should be an aim. The northeast is prominently represented, while the northwest, midwest, and southwest have no representation whatsoever, and there is only one current Justice from a rural community. Two of the three non-white justices to ever serve on the Supreme Court are current members. These three justices, along with eight justices from southern, eastern, or central European backgrounds, are the only 11 to serve on the Supreme Court of the United States that were not of northern or northwestern European descent.

The departure of Justice Scalia will have an enormous effect on current cases before the Supreme Court. There have been many cases already heard this term that Justice Scalia voted on where an opinion has yet to be released. In these cases, his vote will be void. This could be positive, like in the Zubik v. Burwell case, about providing contraception to women whose employers object to it on religious grounds, where a tie would affirm lower court decisions in favour of women’s rights.

One of the largest impacts this will have is on a case I spoke of a few months ago called Whole Woman’s Health v Hellerstedt (formerly Whole Woman’s Health v Cole). If the Court is split 4-4 on this issue, as is expected, then the ruling of the lower court will be affirmed. This is very dangerous because that would essentially ban abortion in the state of Texas and serve to strengthen similar calls in other states. One positive note is that in a tie decision and the affirmation of the lower court ruling, the precedent only applies to that state and not to the nation as a whole. If however, a justice is appointed to hear the case, which is set to begin March 2nd, but could take months to complete, and the law is blocked, it would have sweeping positive effects across the nation. It would block the controversial Texas law, and by virtue of being a national precedent would stop similar laws in Louisiana and Mississippi. It would also affirm previously decided bans on such laws in Wisconsin and Alabama. This case, if left to a tie and the lower court decision, could negatively impact a woman’s right to control her own reproductive health for generations to come.

The picture within the post on Justice Scalia’s legacy was one of the scales of justice leaning to one side. In this post those scales are balanced. This is an opportunity like no other to give a voice to those groups most disadvantaged and discriminated against by the system.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.