The death of U.S. Supreme Court Justice Antonin Scalia clearly left a major gap on the Court. Among other effects, his death has two major impacts. First, it means the Court will decide (at least for the near future) cases with only eight justices. This has the potential to lead the Court to 4-4 ties or to holding cases over for reargument next term (or beyond). In addition, Scalia’s departure will certainly change the internal dynamics on a Court that has been deeply divided over some of the nation’s most controversial issues – from abortion rights, to the death penalty, to campaign finance reform.
While the effects of Scalia’s departure are vast, The Law and Society Review has published six articles over the past two years that speak to parts of the Court’s decision-making process that can, and probably will, be affected by Scalia’s death. For instance, decisions at the agenda setting stage may be affected by having only eight justices on the bench. While Rice does not explicitly deal with this question, he does analyze how the Court’s activities impact its future agenda. And, with Scalia’s departure, the Court decisions and activities will change.
Once cases are accepted for review the justices’ decisions may be affected by arguments presented to them, as Collins, Corley, and Hamner argue in their analysis of how language in amicus curiae briefs influences the content of opinions. In making decisions, other individual-level factors may also affect justices’ decisions – including their birth order. Given McGuire’s thesis, it will be important to know the order in which a new justice was born. Such data is clearly valuable in understanding how he or she will act once on the bench.
Consider also how the Court sets policies in particular (often salient) areas of law. Vecera demonstrates how the Court’s jurisprudence over abortion rights has evolved through the Court’s modern history. His study certainly suggests that having a new justice on the bench may alter the trajectory of this area of law. Further, in making such decisions Uribe, Spriggs, and Hansford make a strong case that congressional preferences about overturning a Court decision play a clear role in how the justices decide. With a new justice on the bench, such concerns will not be allayed but the specific ideological calculations may change.
Finally, Bartels, Johnston, and Mark provide evidence that even elites who work within the judicial system view the Court as a political institution. This finding has implications for how the public and legal elites view our system of justice. It will be interesting to determine whether those views change with the death of one of the most controversial justices in the Court’s history.
This post will expire at 5:45pm on Wednesday April 20th, 2016