Justice Antonin Scalia’s death on February 13 might signify another monumental shift in the history of the Supreme Court. The 79 year old conservative Justice was often the deciding vote on many high profile cases, including the notorious Citizens United v. Federal Election Commission. This particular case ruled that money counts as speech, and that the government cannot regulate how much money is spent on the campaigns of political candidates, a ruling particularly favorable to big businesses with stakes in Washington hopefuls.
Many corporations have relied on Justice Scalia to grant them favorable rulings in the country’s highest court. His death has changed the calculations of many large corporations involved in high-stakes lawsuits. With no more hope of being able to appeal unfavorable rulings to the Supreme Court and have an almost guaranteed 5-4 vote in their favor, corporations are now much more likely to settle cases outside of Court. Dow Chemical recently settled an antitrust case for $835 million. Many years ago, Dow was accused of fixing prices for urethane, and lost a lower court case against them. They were planning to appeal to the Supreme Court before Scalia’s death. After, Dow reassessed the risk and decided that there was a good chance the Court would be divided 4-4, in which case the lower court’s ruling would stand. Thus, it made more sense for Dow to just take the settlement instead of risk it in the Scalia-less Court.
It is possible that the next Supreme Court nominee could change the very fabric of American politics as we know it. For years, 5-4 rulings have favored large corporations and granted them unprecedented power in the political process. Constant victories in antitrust cases have allowed corporations to get much bigger, and cases like Citizens United have allowed them to substantially boost candidates who would support their needs in Washington. For this reason, Republicans in Washington shiver at the thought of that ninth justice, that deciding vote, being liberal.
All the members of the Senate Judiciary Committee (all Republican) have decided that they will oppose any action President Obama takes to name a nominee for Scalia’s post. They stand on the grounds that a President shouldn’t be allowed to name a Justice in an election year. Since the President is supposed to appoint justices on the advice of the Senate (according to the constitution), Obama needs the support of the Senators, which he isn’t getting right now. The President, however, does not seem fazed by the Senators’ vows to oppose him by any means necessary. He plans to name a nominee and calls on the Senate to do their constitutional duty and consider that nominee.
The actions of the Republicans in the Senate are disconcerting, yes, but it is likely that in this time of mass partisan polarization, the Democrats would do the same thing if they had the ability to. The Supreme Court is one of the most powerful entities in our government, and the opportunity to control it is all too tempting. In the ending year of President George Bush Senior’s term, a Democratic Senator named Joe Biden notably stood against Bush naming a Supreme Court nominee in an election year. The Founders originally allowed justices to stay on the court for life in the hope that the country’s highest court would not be affected by politics. It is a shame we have allowed it to be so.
Of course, every political issue these days has to relate back to the Presidential election. If the Sanders or Clinton wins it, a liberal justice will be appointed no matter what. If Cruz, Kasich, or Rubio wins it, and a nominee still hasn’t been confirmed (which is unlikely), the Court may remain 5-4 in favor of conservatives, and corporations will still have the political power that they do now. This is unlikely, though, because Republican Senators can’t wait forever to confirm an appointment. Well, technically, they could, but it would only give more fuel to Clinton and Sanders in their respective campaigns. And, last but most certainly not least, if we call Donald Trump our next President, there will be other issues to write about besides the Supreme Court.