The sudden passing of Justice Antonin Scalia disturbed the Supreme Court’s predictable rhythm. My new Foreword in the NYU Journal of Law & Liberty, titled SCOTUS after Scalia, will analyze the contentious period from Justice Scalia’s death until President Trump’s inauguration, and draw four lessons about the Court, the Constitution, consistency, and Congress. First, this interregnum allows us to study how the short-handed Court engaged in self-help in the short term, and in the long run, how the Court may remain evenly-divided Court for years at a time. Second, with a possible liberal replacement for Justice Scalia, the conservative legal movement’s faced a near-death experience. Part II analyzes how this brush with fate may impact the Roberts Court’s views on incrementalism, institutionalism, and originalism. Third, the change-in-administrations offers an opportunity to lay down markers and chart future movements on the left and right with respect to three important areas: federalism as a check on federal power, deference to the administrative state, and state-led litigation against the federal government. Part III discusses how constitutional consistency will evolve during the Trump Presidency with respect to federalism, administrative law, and state-standing to pursue nationwide injunctions.
Finally, Part IV considers how the unexpected outcome of the election—whereby the Presidency and Senate were both in Republican control—simply delayed the inevitable: at some point, the President and Senate will be of different parties, and they will not be able to agree on a Supreme Court nominee. Through a novel approach developed in this Foreword, the Senate can offer preliminary votes on several possible candidates to fill a Supreme Court vacancy. Though not bound by those resolutions, the President would be wise to consider the Senate’s counsel before making the nomination. By offering Senatorial “advice” before the President’s nomination is made, the “consent” process between the two branches becomes more collaborative and less antagonistic.
It is important, not to simply shrug off the past year as an outlier in the Court’s history. The atypical October 2015 term may, soon enough, become the new normal.