I’ve been asked to comment on the role of law-related issues in the election, specifically a Supreme Court vacancy and allegations of illegal conduct against each candidate. A Supreme Court vacancy is a pretty perfect ideological issue. This election, however, has not been as ideological as might have been predicted two years ago. We have two big government candidates, though they differ in how to use that big government. So it’s not surprising that Supreme Court nominations have not been the central issue.
No one likes ties. There is something excruciatingly underwhelming in accepting the defeat of competition inherent in a draw. One would almost rather the opponent won, if only for a sense of closure. But no, the competitors slink away, licking their wounds and polishing their weapons, plotting their next encounter. The American spirit does not easily suffer such lack of resolution.
Mere hours after Supreme Court Justice Antonin Scalia was found dead two weeks ago, the Washington machine was alight. The two parties were mudslinging in the halls of Congress, with Republicans vowing to reject any Obama-nominated replacement and Democrats excoriating them for such barefaced politics. Around the country, public sector unions and women, among others, rejoiced at their salvation — Scalia’s death dissolved the Court’s conservative majority. As the Supreme Court considers cases involving religious freedom, state marijuana laws and legislative districting rules (which could have large effects on parties’ electoral strength in some states), conservatives have lost control at a precipitous moment. The aforementioned unions are watching Friedrichs v. California Teachers Association, a First Amendment case which, if the Ninth Circuit’s decision is upheld, would imperil public unions’ funding.
Less than two weeks ago, hope for the long term stability of the recent Paris Climate Agreement was wearing thin. In an unprecedented step, the five conservative justices of the Supreme Court issued a stay on Feb. 9, 2016, preventing the Environmental Protection Agency from implementing President Obama’s Clean Power Plan before the U.S. Court of Appeals for the D.C. Circuit had ruled on the merits of the case challenging the regulation. This unexpected decision from the Court, overriding the decision of the D.C. Circuit to deny a stay, dealt a serious blow to the confidence of the major stakeholders of the Paris Agreement. The Clean Power Plan is a foundational aspect of the United States’ commitment to greenhouse gas emissions reductions under the Paris Agreement and the United Nations Framework Convention on Climate Change, and it was only the United States’ willingness as a major emitter to make significant reductions that brought other countries to the negotiating table in Paris in the first place.
With the recent death of Supreme Justice Antonin Scalia, the United States has lost one of its greatest legal minds. Scalia’s nearly 30-year tenure on the Supreme Court was marked by his textualist philosophy, pointed questions and his carefully crafted and passionate opinions. Further, his presence also shifted the Court in a notably conservative direction, including on Second Amendment jurisprudence. Although Scalia’s legacy will be indisputably controversial, none can question that it is significant. Nonetheless, we now have a vacancy on the Court.
Antonin Scalia was never popular at Cornell. Whenever the name Justice Scalia surfaced in any of my government courses, a collective sigh of anger and frustration filled the room. Yet for some of us, Scalia was an unapologetic trail blazer. While certainly there were numerous decisions in which I strongly disagreed with the late jurist, I nevertheless found Scalia to be one of the most decent, brilliant and profoundly transformational members of the high court. My admiration for Scalia emerged in the first Supreme Court case I ever followed: Maryland v. King (2013).