On February 13, 2016, the unexpected death of Supreme Court Justice Antonin Scalia raised a number of questions about what is next this term for the highest court in the United States. The Supreme Court is facing at least one term of potentially split decisions (where the Justices are unable to come to a majority decision, resulting in a 4-4 tie), meaning that no precedent is set on the issue before the Court. Although President Obama recently nominated Merrick Garland, a well-known and long-time chief judge from the U.S. Court of Appeals for the District of Columbia, it remains unclear whether the Senate will actually consider this nomination. A contentious election cycle has firmly placed the Supreme Court in the center of political controversy.
Since Justice Scalia’s death, two split decision opinions have been released by the Supreme Court, or what essentially amounts to an affirmation of the lower Court’s holding, though, as practical matter, this “opinion” in many ways seems to lack the finality and formality of a full Supreme Court ruling. This term seems particularly fraught with controversy, with cases on access to reproductive services, affirmative action, and the Affordable Care Act on the docket. Health care providers, academic institutions, patients and other advocates watching the Court are facing the very real possibility that they will not receive the direct guidance they require to implement or understand the laws at issue.
On March 29, the Supreme Court released its decision in Friedrichs v. California Teachers Association, potentially one of the most influential labor law cases in recent history. The split decision read only: “the judgment is affirmed by an equally divided Court.” The Court’s inability to come to a conclusion affirms the Ninth Circuit’s decision in support of public unions, but fails to set precedent on the issue presented. This decision comes only days after the Court released another split decision in Hawkins v. Community Bank of Raymore, this time on an antidiscrimination issue related to the Equal Credit Opportunity Act.
But back to the process of confirming – or not – Scalia’s replacement. As of March 29, NBC News reported that 16 Republican senators have agreed to meet with Judge Garland. NBC also reports that blue state Senators Collins (R-ME), Moran (R-KS) and Kirk (R-IL) have even supported a hearing. It certainly is understandable that Republican leaders would be concerned about President Obama’s appointment of three Justices during his tenure, and this is not the first time that a political party has expressed concern over a Supreme Court nominee during an election year. In 1968, Abe Fortas, President Johnson’s nominee to replace Chief Justice Earl Warren, was blocked by a bipartisan filibuster based on concerns that the nominee was too liberal. Senator Chuck Grassley, writing for SCOTUSblog, argues that Republicans have a legitimate and fundamental disagreement with the President on the role of Supreme Court Justices. Dialogue about the role of the Court is not new to this Presidency, and it has historically helped to foster a healthy and robust nomination and appointment process.
Nevertheless, in many ways this situation remains rather unprecedented. Since 1875, every nominee to the Court has received at least a hearing or vote. Eighty percent of Presidential Supreme Court nominees have been confirmed over the past 60 years in mixed political environments, when the President is from a different party than the Senate. Six Justices have been confirmed during an election year since 1900.
It might be a mischaracterization to say that the Supreme Court has historically been apolitical. After all, we know that the Court’s authority has advanced a number of milestone actions in American history, including integration, access to reproductive health services and, more recently, marriage equality. But it is one of the purest values of the Court that it remains nonpartisan. Chief Justice Roberts, considered by most to be a conservative Jurist and appointed by George W. Bush, has twice drafted opinions affirming the constitutionality of the Affordable Care Act. Republican President Dwight D. Eisenhower nominated Earl Warren, under whom the Court is thought to have been the most activist, and whose Court found both public school segregation policies and anti-miscegenation laws unconstitutional. As politics today impacts the Court, it also impacts the people looking to the Supreme Court for legal direction and interpretation.