Today Justice Scalia’s body lies in repose at the U.S. Supreme Court and his funeral service will be held tomorrow. Within an hour of the public announcement of his death last Saturday Senate Majority Leader Mitch McConnell (R-Across the River From Me) announced that the Senate would not take any action on any nominee who might be submitted by President Obama. His rationale, with which his fellow Republican senators are marching in lockstep, is outrageous. But it is not my purpose here to argue on that point, as it has already been ably argued by so many others.
Rather, I merely want to point out two political scenarios that might be affected greatly if, come December, the court still has only eight justices.
First, think of Bush v. Gore. We learned then and in many smaller stakes elections since that too often the resolution of an election in a conclusive manner requires litigation. If something happened that resulted in this year’s presidential election again coming before the court, Republicans would much prefer to take their chances on a 4-4 court than one with five justices appointed by Democrats.
Second, think of Senator Ted Cruz (R-Canada). There is already a suit in an Illinois court challenging his eligibility to be president under the “natural-born citizen” requirement. If he is not eliminated from the race by delegate count before the Republican Convention chooses its nominee, it is quite possible to imagine that any litigation over his eligibility could end up at the Supreme Court for an ultimate resolution. That may or may not be a situation where Republicans are happy with a 4-4 court, and I’m guessing Republicans themselves would disagree with each other on the advisability of such a situation.
More generally, there is one last issue that I have yet to see discussed in any depth this week. It is within the realm of possibility that a second justice could pass away between now and the inauguration of the next president, or in the months following that president’s nomination of Scalia’s successor. Are Republicans willing to have a seven-justice court for that long as well?