The passing of Antonin Scalia, the US Supreme Court’s longest-serving associate justice, piqued my interest greatly. I once studied the American legislature as part of a Politics A-Level, and my imagination was always caught more by the political system over the pond than our own staid, playing fields of Eton ‘democracy’.
Scalia, appointed to the Supreme Court in 1986 by the States’ neoliberal president Ronald Reagan, was the federal court’s longest-serving member, and arguably its most conservative. Throughout his tenure in D.C., Scalia saw himself as a staunch protector of the US constitution, that yellowed document considered sacred from Maine in the north-east to California in the south-west.
It’s therefore somewhat ironic that the justice’s death has ignited a fierce argument over the US’s constitutional ‘checks and balances system’, with Republicans and Democrats fighting for supremacy before Scalia’s corpse has gone cold. Even Republican presidential candidates Ted Cruz and Marco Rubio have had their say – but more on those two later.
President Barack Obama will, for the third time since being inaugurated in 2009, be tasked with nominating an associate justice to fill a gap on the Supreme Court. In his first year in charge, Obama nominated Sonia Sotomayor to replace David Souter and, a year later, Elena Kagan took over from John Paul Stevens. Yet both of those appointments were relatively straightforward; both outgoing justices were liberal in outlook, so their replacements, although ethnically and religiously fresh in terms of the Court’s make-up, were like-for-like. Perhaps more importantly the Senate, who vote to confirm the President’s choices, was dominated by Democrats until the 2014 mid-terms.
This time, it’s a little different. In his last full year as head of state, Obama, before Saturday, was seen as something of a lame duck at home, presiding over a Republican-controlled Senate (54 GOP; 44 Democrats and 2 Independents) and House of Representatives. However, Scalia’s death has changed everything.
The ideological ‘outlook’ of the Court now stands at four conservatives – Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito – and four liberals – Ruth Bader Ginsberg, Stephen Breyer, Sotomayor and Kagan. The next appointment will be key in shifting the balance, and that’s why Republicans are up in arms.
The aforementioned Cruz, who harbours realistic hopes of sitting in the Oval Office this time next year, is threatening to ‘filibuster’ any nomination Obama makes, while Rubio even went as far as saying that the ‘next President’ should appoint Scalia’s successor. This is despite Obama still having 11 months of his second four-year term to run.
GOP leaders are running scared because they know that, if Obama gets his way, they’re looking at a legislature that is largely liberal in make-up – a complete turnaround from the days of the 1980s and 1990s when, after Reagan and then George Bush Sr had enjoyed the best part of a decade-and-a-half in power, the Court was overly conservative (although Souter became more liberal during his time in D.C.)
The result of a liberal Obama nomination – should he manage to do what no Democrat President has done since 1895 – could be a more socially active Supreme Court, similar to the one we saw in the 1970s (Roe v Wade, et al.) after John F. Kennedy and Lyndon B. Johnson had left their mark on the highest level of the federal legislature. Last year, the Court legalised gay marriage with Scalia present, what could it do with the balance further tipped in the centre-left’s favour?
At the moment, this is more of a constitutional and political conversation than a judicial debate but, if Rubio’s (unlikely) and Cruz’s (more likely) protests fall by the wayside and Obama does have his way, the vacant seat could be filled by the time US voters come to the polls.
Perhaps then Obama’s promise of ‘hope’ – so prevalent in his 2008 campaign, but unfulfilled for many – could linger on for a while longer, and the journalists, writers and historians could start scribbling at length under the ‘legacy’ column of the 44th President of the United States.