Antonin Scalia’s Death and the Future of the Supreme Court

By Sanjay Dureseti

Sanjay Dureseti is a freshman at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

The death of Supreme Court Associate Justice Antonin Scalia reverberated throughout the United States. In some cases, his passing and what it represented incited tacit celebration, joy that a man deemed social progress’ greatest enemy could no longer battle against inevitable change. Others deeply mourned his demise, citing the justice’s unabashed intellectualism and praising him as a champion of Constitutional purity and originalist thought.

Regardless of the nation’s opinion of Scalia, his death has set off a political firestorm, with both parties vying to determine the future of the judicial branch. Senate Republicans have vowed to prevent any confirmation procedures from unfolding, thereby rendering President Obama’s nominating powers moot. [1] The party is using its Congressional control to incite one more fight from Obama before his Presidency comes to an end in January. It also hopes that with a presidential victory in November the future of the Court will be theirs to decide.

 Such maneuverings are unprecedented in the history of the Supreme Court and threaten to unravel the system of checks and balances that holds the government in place. As a result of these actions, the destiny of the federal bench hangs in the balance.

But a more pressing concern is the immediate future of the Court. With Scalia’s seat unlikely to be filled before the end of the Court’s current term, there is now a 4-4 split among the remaining justices across ideological lines. As of late, the most crucial and high-profile cases, like rulings surrounding same-sex marriage and gerrymandering, were decided 5-4. [2] Without Scalia, the anchor of the bench’s Conservative bloc, more moderate Justices like John Roberts and Anthony Kennedy will play far more crucial roles in determining the legal framework of the country. And, with the Court still in session, a number of important rulings lie ahead, including those regarding affirmative action, abortion clinics, and President Obama’s recent executive orders on immigration. [3] Any 4-4 draw effectively maintains the status quo and upholds the lower court’s ruling, allowing for the case to be reheard when the new justice is installed.

If, however, constitutional procedures are appropriately followed, President Obama has his pick of several qualified justices. Sri Srinivasan, Patricia Millet, and Merrick Garland are all possible selections, with each filling a more moderate position on the ideological spectrum of the current bench.

And, in the larger picture, Scalia’s death will ensure that national political and legal institutions will be intimately linked more than ever. The upcoming Presidential election, if the Republicans get their way, will not only influence the future of the Court, but will shape it entirely. Vast political gains can be made on either side of the aisle, as either conservative or liberal courts could rehear cases dealing with campaign finance, the second amendment, and voting rights. [4] It is certain that great changes lie ahead. Who is responsible for those changes, however, will, for now, remain a mystery.



[1] Herszenhorn, David. "G.O.P. Senators Say Obama Supreme Court Pick Will Be Rejected." The New York TImes, February 23, 2016.

[2] Liptak, Adam, and Alicia Parlapiano. "Major Supreme Court Cases in 2015." New York Times. July 1, 2015.

[3] Wolf, Richard. "Here's How Scalia's Death Affects Supreme Court Rulings This Year." USA Today. February 15, 2016.

[4] PBS NewsHour. "What Scalia's Death Means For the Supreme Court's Future." PBS. February 15, 2016.

PhotoCredit: Flickr User Phil Roeder



The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.