The death of Justice Scalia has raised the profile of the Supreme Court in the 2016 Presidential Race. Could this be a chance to diversify the body – or will it only lead to divisions in picking a successor?
As a constitutional figurehead and the longest-serving justice on the Supreme Court of the United States, the recent death of Justice Antonin Scalia has generated mixed reactions across the political spectrum. Often cited as one of America’s loudest conservative voices, Justice Scalia was a famous opponent of abortion and anti-discrimination laws. He was also well known as a staunch supporter of the death penalty, and a firm believer in the power and practise of the constitution. At any point in the political cycle, this news would create shockwaves – but during one of the most controversial presidential election campaigns in recent years, his death leaves a divided court that may take months to resolve.
As one of the nine justices that made up the Supreme Court, Scalia was appointed in 1986 by President Reagan. For 29 years, he sat as perhaps the most conservative figure in contrast to others such as Ruth Bader Ginsberg, who was appointed in 1993 by President Clinton. Elected on a lifetime term of office, the last time new members were appointed was in 2010, with many justices going on to serve 20 or 30 years terms before death or retirement. The average age of retirement now stands at 79 – and consequently two judges as well as Justice Scalia are expected to vacate their seats within the term of the next president.
The importance of the Supreme Court cannot be underestimated. Despite a Republican majority in both the House of Representatives and the Senate, President Obama’s last term in office has overseen landmark decisions and victories for civil liberties. Notably, the legalisation of same-sex marriage across the USA last year (a result of a Supreme Court ruling of five votes to four in favour of declaring bans on same-sex marriage “unconstitutional”) may never have come about under a Republican Congress that has adamantly opposed many progressive motions put forward by the executive. Already seen as leaning towards a more liberal stance, the likelihood is that two liberal and one conservative seats will need to be filled within the next four years.
This has led to gridlock – despite leaving a court of four liberal and four conservative judges (meaning decisions in the highest court of the land will be near-impossible), the Republican Congress is attempting to block Obama’s attempts to nominate a successor – something he is within his rights to do with nearly a year left in office. Replacing the most conservative justice to date with a liberal figure of Obama’s choosing is the worst nightmare for many Republicans, particularly in a presidential race where the actions of the far right of the party could effectively hand victory to an establishment Democrat nominee like Hillary Clinton.
No matter who is nominated however, this appointment will set an example for the next nominations of judges, and therefore a precedent for the next generation of decisions in the Supreme Court. From “Roe vs. Wade” to “Lawrence vs. Texas”, some of the most important decisions on civil rights and liberties have been made in the court – decisions which some candidates such as Donald Trump believe were wrongly made. The potential for a new president to unravel decades of progress is all too real, creating a situation where Obama’s power to elect a new justice may be halted by Republicans trying to delay the decision unconstitutionally.
In a country where the issue of race has sparked protest movements and campaigns such as “#BlackLivesMatter”, where the gender pay gap is still an issue, and where gun control is minimal (despite mass shootings taking place at a rate of almost one per day), the potential for change is huge. Despite improvements by Obama to ensure the make-up of the court is more diverse, old, white men remain dominant, the religious makeup of the court is largely Roman Catholic (despite the fact that the US as a whole is becoming less religious), and all the current members of the court went to select Ivy League law schools. When the idea of “anti-establishment politics” has been high up on the agenda of three controversial candidates, and even Justice Scalia criticised the diversity of the court, this is surely something that cannot be ignored when dialogue on these issues is so important.
If Obama is unable to choose a new Justice, these issues will be decided by a new president in a year where the political landscape is becoming increasingly harder to predict. The American judiciary could change for better or worse, and rights that have previously been seen as fundamental could be overturned. However, in a world that changed around Scalia’s outdated views, we must let the court reflect a progressive society. However, if the nomination process is to be so fraught with disagreements on both sides, there is a danger this may not change. There is only one solution: appoint someone progressive, with expertise and a record neither side can dispute.