Justice Antonin Scalia, perhaps the most controversial figure of the modern Supreme Court, has unexpectedly passed away at age 79. Unfortunately, the political posturing over when and how to replace him began almost immediately following the public announcement of his death. For a lovely tribute to a man whose intellect, influence, and personal relationships deserved a great deal more time and attention than they received, check out what Ruth Bader Ginsburg had to say about her good friend Justice Scalia.
But, inevitably, on to the politics. One major point of contention has been whether there is historical precedent for either nominating and confirming a new justice in an election year (which the Republicans do not wish to do), or delaying a new appointment for nearly a year (which the Democrats do not wish to do). For those who are interested, my husband, Shannon Patrick, who is a data geek and an Excel whiz, has put together a spreadsheet showing relevant dates and gaps over the history of the Supreme Court. If you would like a copy of the Excel document so you can also manipulate the data, please email me.
The facts are these: There are 341 days between Justice Scalia’s death and the day the next president will be sworn in. She or he will not be able to appoint a new justice immediately, so there would be at least a few more days or weeks before a new justice could take office. According to Shannon’s data, there has been only one vacancy of that length in the last 150 years, when Justice Harry Blackmun was appointed following a 391-day vacancy. Before that, there was the 1862, mid-Civil War appointment of Justice David Davis, which filled a seat following a vacancy of 589 days (this happened to be the third-longest Supreme Court vacancy ever). The trend (PDF) since transportation has evolved beyond horse, buggy, and dirt roads, has been for appointments to take a shorter and shorter period of time. If you omit the outliers, the trend (PDF) becomes even more clear. The longest vacancies in the modern era have come about as a result of failed nominations (Robert Bork prior to Justice Kennedy, with a 237-day vacancy, and both G. Harrold Carswell and Clement Haynsworth prior to Justice Blackmun, with the 391-day vacancy).
We all know that there are some fairly major political elements at play here. Justice Scalia considered himself an originalist: that is, he believed that the Constitution should be interpreted the way it was meant by the men who wrote it, at the time that they wrote it. He usually, but not always, agreed with his fellow Republican-appointed justices, particularly in the politically controversial cases that garner the most attention in the news: political money, same-sex rights, abortion, presidential elections.
But there are purely non-political considerations: the fact that a seat is left open by his death, no matter how long it remains open, has the potential to result in some (possibly many) decisions that have no majority opinion. When there is a 4-4 decision by the Supreme Court, the result is that the lower court’s ruling stands but has no precedential value. These 50-50 splits at the Supreme Court level are a problem for our judicial system as a whole. Cases generally reach the Supreme Court only when there is disagreement among the circuit courts of appeals regarding how a particular law or part of the Constitution ought to be interpreted. Even then, the Supreme Court generally has to wait until a case comes up that gives it an opportunity to resolve the question. There is no guarantee that the opportunity to resolve the questions posed by some of the cases from this session will be repeated in the near, or even far, future. Circuit splits (where the law is interpreted differently in different jurisdictions) can be dangerous. They cause forum shopping, meaning that attorneys maneuver to ensure that litigation will take place in a forum that has advantageous law for their clients. While forum shopping may be good legal representation (a lawyer should always be a zealous advocate and endeavor to get the best possible result for her client), it is bad when forum shopping is possible because our nation’s top court is unable to tell us how to correctly interpret the law. I would not want to see that sort of chaos for the next year.
I am not going to try to claim that the Supreme Court is an apolitical institution. That would be disingenuous at best, for reasons that others have articulated better than I can here. (Disclaimer: The two linked books were written by one of my law professors and law school classmates, respectively.) But businesses thrive in a stable climate. It is not possible to figure out how to comply with the law, get your compliance regime set, and get down to business, when you do not even know for certain what the law says—or worse, when you do know that it is not possible to follow the same law in two different jurisdictions at the same time. We need a full complement of justices handing down decisions that let the American people, and our businesses, know what our laws say.
I am not given to urging politlcal action on this blog, but this is one time I would urge you to contact your Senators and let them know that leaving an open Court seat for nearly a year, as is nigh-unprecedented in modern times, would be bad for business and bad for our country.
What do you think?