The late Justice Antonin Scalia was larger than life. A passionate defender of his own constitutional vision of textualism and originalism, Scalia would surely relish a similarly passionate debate over the constitutional vision of his successor—with both Republicans and Democrats defending their respective views of how the Constitution should be interpreted and what role the Supreme Court should play in American democracy. Instead of triggering a constitutional debate, however, Scalia’s tragic death has led to a political standoff, with both Republican and Democratic activists vowing to make the Court a key voting issue in the 2016 election.
Everyone agrees that this is the most significant Supreme Court vacancy in a generation. But what competing visions of the Constitution, precisely, are voters choosing between?
The constitutional stakes could hardly be higher. Scalia passed away not only in the middle of a heated election year, with the presidency and control of the Senate hanging in the balance, but during a particularly consequential term at the Supreme Court, with blockbuster cases on abortion, contraception, unions, immigration, and voting rights on the docket. And, of course, the future of the Supreme Court itself is now at stake. With the opportunity to replace Scalia, President Obama has a chance to shift the Court’s ideological balance and to create a vigorous liberal majority on the Court for the first time since the 1960s. If Scalia is replaced by Judge Merrick Garland, or by another liberal nominee, America may also face the possibility of a chief justice—John Roberts—who no longer can command reliable Supreme Court majorities in closely contested cases. (The chief justice decides who writes for the Court in cases when he is in the majority; even after the rate of dissenting opinions and the cases decided by a one vote margin began to rise in the 1940s, chief justices in the twentieth century continued to assign the majority of cases.) Furthermore, Justice Anthony Kennedy—the longtime swing vote—may no longer decide which side wins when the Court is closely divided. The constitutional landmarks that law students and citizens have taken for granted for decades could be dramatically transformed.