Here’s how the law would dramatically change if a liberal replaces Scalia
Yahoo News – by Stuart Taylor Jr. – February 15, 2016
Photo: The justices of the Supreme Court in 2010. Seated, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan. (Photo: Pablo Martinez Monsivais/AP)
If President Obama — or his successor — replaces the late Justice Antonin Scalia with a strong liberal, the Supreme Court’s balance will swing dramatically to the left in the coming years. It might well be the biggest ideological swing in recent memory.
Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)
It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.
Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vote.
Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.
If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.
Below is a quick rundown of what the court might do — not necessarily in the next year or two, but perhaps within five or so years — if a fifth liberal tips the balance.
Race. A liberal replacement for Scalia would make a dramatic difference on racial issues, on which the court has long been deeply divided by 5-4, with conservatives in the majority, usually including Kennedy.
These issues include racial affirmative action preferences in state university admissions, government hiring and employment, and other walks of life; Justice Department supervision of state and local voting rights laws; and efforts to make it easier for poor and black people to vote.
Indeed, a liberal majority would almost certainly overrule the court’s application of “strict scrutiny” to “benign” racial preferences since 1978 and disregard its 2003 suggestion that racial preferences in state university admissions must end within 25 years, by 2028.
The effect could be to ensure that racial preferences — a major priority of Democratic interest groups — will continue well past 2050 and perhaps far into the next century.
Posted by Teri PerticoneShare