Replacing Antonin Scalia Could Mean The Biggest Supreme Court Shakeup In 25 Years

Conservatives have had a functional majority at least since 1991.
The next justice could push the Supreme Court in a very different direction.
The next justice could push the Supreme Court in a very different direction.

Filling a seat on the Supreme Court is always a big deal.

Filling the seat of Justice Antonin Scalia, the conservative icon who died on Saturday, will be an even bigger deal than usual. The appointment could shift the ideological direction of the court more than any other appointment in the last 25 years.

It all depends on who gets to appoint the next justice. Senate Republicans have already said they will not confirm a nominee from President Barack Obama. If they carry out that threat and a Republican wins the November election, then Scalia’s replacement will almost certainly be another conservative. In other words, the next justice would probably end up voting like Scalia did -- and would do so for years to come.

But if Obama somehow gets a nominee through, or if a Democrat wins the 2016 election and gets to appoint a justice, Scalia’s replacement will almost certainly be a liberal. It would arguably represent the sharpest shift in the court’s balance since 1991, when Justice Clarence Thomas, a staunch conservative, replaced Justice Thurgood Marshall, a staunch liberal.

Appointing a liberal to fill Scalia’s seat would mean that five justices -- in other words, a majority -- are Democratic appointees. That would also be a milestone, as Andrew Koppelman, a law professor at Northwestern University, told The Huffington Post.

"The last liberal Supreme Court ended when Earl Warren resigned and Abe Fortas’ nomination to replace him collapsed and Fortas resigned, giving [former President Richard] Nixon two vacancies to fill in his first year in office," he said. "We’d have a solid liberal majority for the first time since 1969."

Such a change could have profound consequences. It would likely mean a crucial fifth vote to protect the Voting Rights Act and abortion rights. It could also mean the court would be more supportive of efforts to regulate campaign contributions, greenhouse gas emissions and gun ownership. A fifth liberal vote could also result in more scrutiny of the death penalty.

Of course, justices don’t always vote in the way that presidents anticipate they will. When former President George H.W. Bush in 1990 appointed Justice David Souter to replace Justice William Brennan, who was among the most influential liberal justices in history, Bush’s chief of staff promised that Souter would be a "homerun" for conservatives. But Souter didn’t line up with conservatives like Scalia and Thomas and, over time, became a reliably liberal vote -- providing a key vote to uphold abortion rights, for example.

But Souter, whose prior service on the New Hampshire state Supreme Court hadn’t provided many clues about how he’d rule on national issues, may have been the last such appointment. Today both parties vet their appointees much more carefully. Conservatives actually adopted the motto "No More Souters."

That doesn’t mean appointees always vote in ways that please the parties that appointed them; Chief Justice John Roberts has infuriated Republicans twice in the last few years by voting to uphold the Affordable Care Act, Obama’s signature domestic policy achievement. Overall, however, the justices that end up on the bench these days vote in the ways that the presidents who appointed them hoped.

"There have been only four Democratic appointments total since 1967," David Strauss, a law professor at the University of Chicago, noted on Saturday. "The Court moves slowly, but that kind of consistent pattern of appointments will definitely move it. … A Democratic majority could start a similar shift back in the other direction."


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