2016 Election Blog #10: The Justice Scalia Factor and the Presidential Campaign

With the announcement over the weekend of the passing of Supreme Court Justice Antonin Scalia (79), a new dimension has been added to the already topsy-turvy Presidential campaign.  The conservative justice represented the intellectual and ideological base of conservative political thought not only on the bench but also within the Republican Party.  His ideas were crafted on the basis of defining the “origin intent” or construction of the Constitution.  As the court is taking up a series of high profile cases, including a race-oriented admissions plan from the University of Texas, an abortion case, a voting rights challenge, and an immigration case challenging the President’s executive orders, in addition to a highly charged abortion case, the future balance of power on the court will be at stake.

Should the Senate elect not to take up the President’s expected nomination, which represents the current view of the Senate Majority Leader Mitch McConnell, the Supreme Court will be left with a split constituency, namely four liberal justices and an equal number of conservative jurists.  In such settings, the lower court rulings will be allowed to stand. 

The death Justice Scalia raises the level of competition, as the two parties contend for the White House, realizing that the next President may have the opportunity to select as many as four nominees for the Supreme Court, as Anthony Kennedy is 80, Ruth Bader Ginsburg is 83, and Stephen Breyer is 78. The stakes are particularly high as the controlling political party will determine the long-term character and direction of American democracy in such vital judicial concerns as the power of the executive branch; the question of whether the government will regulate abortion policy; the character and definition of marriage; and the role of the state in defining civil liberties.  The Court could take up the Constitutional issues surrounding the Second Amendment, the right to bear arms or address the limits of police authority, just as it might want to revisit the death penalty or civil rights legislation.

The ideological deadlock that now defines the Supreme Court will therefore become a major issue in the 2016 campaign, as both political camps seek to ensure that they will be able to control this selection process. Indeed, not only is the presidential race impacted by this conversation on the future of the Court but also the intensity of the senate races in such states as New Hampshire, Wisconsin, Illinois, Florida and Ohio will take on an added dimension as Democrats and Republicans seek to win control over the Senate.
 

Dr. Steven Windmueller is the Rabbi Alfred Gottschalk Emeritus Professor of Jewish Communal Service at the Jack H. Skirball Campus of the Hebrew Union College-Jewish Institute of Religion, Los Angeles.  See his complete set of writings at