What does Scalia’s death mean for New Jersey?
On Saturday, the U.S. Supreme Court became more moderate. And it's likely to stay that way, at least for a time.
The death of Trenton-born Antonin Scalia leaves the court without perhaps its most conservative member and strongest conservative influence. And it does so at a time that the court is set to rule on several issues with importance for New Jersey residents.
Among them — Scalia had seemingly been among the most adamant opponents of an affirmative action program at the University of Texas, and the court's coming ruling on that program could affect schools nationwide. Some affirmative action proponents worried a ruling could broadly undermine programs throughout the country.
Several New Jersey colleges and universities consider race or ethnicity to some degree in their admissions processes — Rowan giving it the strongest consideration, according to a breakdown by Ballotpedia. Rutgers-New Brunswick, Rutgers-Newark, Rutgers-Camden, The College of New Jersey and the New Jersey Institute of Technology all also allow race and ethnicity to play some role.
Observers had considered the more moderately conservative Justice Anthony M. Kennedy the likely swing vote on the Supreme Court on the affirmative action case. But it was Scalia's suggestion in December that black students might be better off at “a less advanced school, a slower-track school where they do well," that made headlines. And it was considered one of the strongest indications Scalia and the conservative wing of the court overall were skeptical of allowing race to play a strong role in college admissions.
“I don’t thing it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” Scalia said at the time.
Former Time Magazine senior law reporter and professor of political science Alain Sanders, who teaches at St. Peter's University in Jersey City, told New Jersey 101.5 Saturday evening the court has shown it's "barely tolerating affirmative action" — but Scalia's death has the potential to upset the balance on that and a host of other issues.
How that concerns New Jersey:
"New Jersey is very much an urban state, and a suburban state — so a lot of issues that are handled by the court affect us," he said. "For instance, looking down the road, the court will continue to deal with questions involving abortion, campaign financing ... that's something Gov. Christie has spoken about and something the voters of New Jersey are very conscerned about. Many of the issues the court deals with affect suburban voters and urban voters, questions like affirmative action — and the Surpeme Court decisions in all of these areas have been close, 5-4 or 6-3."
With Scalia gone, the court could be looking at 4-4 ties in the short term — and what happens next is a mystery.
President Barack Obama, in the last year of his term, faces a Republican Senate majority likely to be reluctant to approve any nominee the court puts forward. It can simply run out the clock.
If it does, that opens up the possibility of split decisions on the court. And when those happen, lower court rulings are left to stand.
But pushing back on Obama administration nominations opens up some risk for Republicans. No one knows what will happen in the remainder of the primary season or the general election. A President Bernie Sanders could wind up picking the next Supreme Court justice.
Alain Sanders said regardless of when Scalia is replaced, it's likely that the new justice will be more moderate than Scalia, appointed in 1986 by then-President Ronald Regan. Scalia had an uncommonly strict "originalist" view of the Constitution — demanding that it not only be read literally, but as it would have been understood in 1789.
"With his voice now silent, no matter who it is --- the court will become a more moderate institution," Sanders said.
He anticipated the empty seat would become a dominant issue in the Democratic and Republican primary presidental races.
"Both parties will gear up," he said. "The Supreme Court has kept a very conservative line. This is a chance for the liberals to moderate the court. This will be a hard-fought issue."