Now What? The Legal Ramifications of Justice Scalia’s Death

This article originally ran in the April 2016 issue of AVN. To see the online edition, click here. With the country more sharply divided than at any time since at least the 1960s, the death of Associate Justice Antonin Scalia is likely to set off the most contentious face-off in decades. Within hours of news of his death, Republicans vowed to block any nominee that President Obama might put forth; in turn, President Obama promised to fulfill his constitutional duty to promptly nominate a successor—which he did at press time, naming Merrick Garland. Now it falls to the Senate to fulfill its duty to vote on the nominee. The Republicans currently hold a 54-46 majority in the Senate (technically 54-44-2 with the two independents caucusing with the Democrats). That, of course, means that they are capable of knocking down any nominee if they stay in lock-step, which has certainly been the case lately. Perhaps more significant is that the Republicans have a majority on every committee, including the one that schedules hearings and votes. As a result, they could block even a confirmation hearing on a nominee. Now, might any Republicans jump ship and agree to have a hearing and approve an Obama nominee? That seems unlikely, given the chasm between the parties. Whatever president wins the election is not likely to bring forth a nomination on his or her first day in office. Rather, even if it is the same party, transitions take time. There is a transition team that goes to work immediately after the election, but it takes a while to implement all of that. Although the sitting president leaves office and the new president takes office at exactly noon on January 20—and the respective staffs do a remarkable job of shuffling things around so that the outgoing president can wake up in the residence and the incoming president can go to bed there that evening—quite a bit must transpire before getting around to judicial appointments. Justice Scalia died on February 13, 2016; so President Obama had 342 days left in his term upon his death. Add another six months to get a nomination, hearing and vote, so you are talking about 500 or so days before we get a full Court! That would be a modern record. In modern times, the longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days in 1916. More recently, Justice Kagan’s nomination came 31 days after the seat became vacant; Justice Sotomayor’s, 25 days. Apparently, the record occurred after Justice Henry Baldwin died in office on April 21, 1844. He wasn’t replaced for more than two years, partly because of partisan gridlock. The balance of the Court will be interesting in light of Justice Scalia’s death. On issues near and dear to readers of this column, the typical split has been 4-4-1. Four typically would side with arguments that would benefit the adult industry in such matters as free speech (Justices Breyer, Ginsburg, Sotomayor and Kagan); four typically would oppose (Chief Justice Roberts, along with Justices Scalia, Thomas and Alito); and Justice Kennedy would provide the swing vote. Now, with Justice Scalia out of the picture, consider this: If in one of these close cases the justices vote as predicted, that’s four in favor, three against and Justice Kennedy leaving free speech supporters waiting with bated breath. If Justice Kennedy votes favorably, then the free speech side wins, 5-3 rather than 5-4. If he votes unfavorably, rather than a 5-4 loss, it is a 4-4 deadlock. What happens then is that the lower court’s decision is affirmed by an equally divided court. The last thing is a little complex. Where a case is affirmed by an equally divided court, it is not precedential. The court simply says, “The judgment is affirmed by an equally divided Court.” The import of that is to leave standing the lower court’s decision. So, the vacancy created by Justice Scalia’s death will have the practical effect that if a decision that benefits the adult industry was on the way to a 5-4 victory, it will still prevail, but 5-3. However, if it was on the way to a 5-4 loss, the new makeup will result in a 4-4 “no decision”—just as if it never happened. Two things are clear. A Democrat will appoint a justice with an eye to overruling Citizens United, the 5-4 decision allowing essentially unlimited campaign spending. A Republican will appoint a justice with an eye to overruling Roe v. Wade. Courts supposedly have great regard for precedent, overruling prior decisions only in the most extreme situations. For example, the 1954 Brown v. Board of Education decision, prohibiting segregation of schools, overruled the 1896 decision in Plessy v. Ferguson, holding that separate but equal was just fine. The Court’s 2003 Lawrence v. Texas decision, striking down criminalizing homosexual sex between consenting adults, overruled the Court’s 1986 decision in Bowers v. Hardwick, holding the precise opposite by upholding those laws. However, both Brown and Lawrence were decided against a background of radically changed social norms. The public’s attitude about segregation dramatically changed during the five decades between Plessy and Brown; as did society’s attitude—dramatically—about gay relationship in the nearly two decades between Bowers and Lawrence. However, Roe v. Wade and Citizens United present perhaps the most politically contentious issues in modern times. If the Republicans get what they want, they may wish that they hadn’t asked. A third of the current Senate were elected in the 2010 Republican landslide. In off-year elections—years when there is no presidential election—Republicans do better. In presidential years, Democrats do better down-ticket. Also, of the 34 Senate seats that are up for election, 24 now are occupied by Republicans; only 10 are occupied by Democrats. The Senate definitely is in play; and so is the White House. A Democratic White House with a Democratic Senate would mean that the Democrats could pretty much call the shots as to the Supreme Court. If President Obama sends a nomination to the Senate that has any chance of passing, it will need to be a moderate. If President Clinton or Sanders sends a nomination to a Democratic Senate, figure on another Ruth Bader Ginsburg. Interesting times! Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.