Scales of justice will tip toward one side after Scalia

Published 12:01 am Wednesday, July 27, 2016

As we have watched and participated in the presidential foray this entire year, an equally important event occurred. The death of U.S. Supreme Court Justice Antonin Scalia in February is an important event in American government.

Scalia’s unexpected death at 79 could affect the ideological tilt of the Supreme Court and could essentially have a profound impact on our nation’s public policy.

Our founding fathers created a three-prong government triumvirate. The three branches, executive, legislative and judicial, are all designed to balance each other and work congruently to give us a functioning democracy.

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In the past eight years, we have experienced a dichotomy of acrimony and thus gridlock between our extremely liberal president and conservative U.S. House and U.S. Senate. The liberal Democratic President and conservative Republican legislative branch have been at polar extremes, which has created havoc and stalemate between the two branches.

President Barack Obama has attempted to circumvent constitutional restraints to get around the congressional roadblocks to his agenda. In the meantime, Congress has evolved into a partisan quagmire that leaves it without decisiveness, which leads to nothing being accomplished.

This partisan divide has rendered the Congress and Presidency powerless. Therefore, the U.S. Supreme Court has become the benchmark and pivotal decision making and public policy setting entity in the nation.

Scalia was the Court’s most reliably arch conservative. His death leaves the Supreme Court tilted to the left. The Constitution provides that the President is to appoint vacancies to the Supreme Court with the advice and consent of the U.S. Senate. The Republican majority Senate, led by Majority Leader Mitch McConnell (R-Ky.), has vowed to block President Obama’s appointment to replace Scalia for the remainder of the year. This is unprecedented. However, they can and will thwart Obama’s nominee.

The Republicans are hopeful that a Republican will win the White House and that they will retain their control of the U.S. Senate. Both of these occurrences may be wishful thinking.

Scalia’s death is a major loss for the nation’s conservatives. The Court is now evenly divided four to four between liberals and conservatives. However, Justice Anthony Kennedy, who has been considered the one moderate middle swing vote on the Court, has swung more to the left in recent years. Thus, for the remainder of the year the Court has a liberal tilt and there are numerous major decisions set to be made this year.

On course to be decided are landmark issues regarding abortion rights, affirmative action, voting rights and immigration. Under ObamaCare religious and non-profit schools and hospitals are mandated to pay for contraceptives. These groups are essentially pro-life and want to be exempted from the Obama mandate. With Scalia on the Court they would have probably won. However, the likely outcome is a 4-4 tie.

The long standing University of Texas affirmative action case was decided a few weeks ago. Scalia had already shown his hand against affirmative action in oral arguments. He suggested from the bench that African Americans may do better at “less advanced” or “slower track” schools. With Scalia gone the Court ruled against Texas and in favor of affirmative action.

In a case regarding voting rights, Alabama is front and center. The Court will consider changing the way state districts are drawn based on the number of eligible voters rather than total population. A favorable decision would be a major victory for Republicans. It would enhance the power of more rural and mostly white districts. In oral arguments in December with Scalia leading the charge it appeared the conservative justices may have had the edge. It is uncertain now.

President Obama’s immigration plan would prevent deportation for four million undocumented immigrants. An appellate court had ruled this unconstitutional. With Scalia on the Court the appellate court ruling would have been upheld. Now it is totally up in the air.

The bottom line is this election is extremely important when it comes to where the country is heading philosophically because the presidential race as well as senatorial races around the country will significantly affect the makeup of the Supreme Court.

See you next week.

Steve Flowers is Alabama’s leading political columnist. His weekly column appears in over 60 Alabama newspapers. He served 16 years in the state legislature. Steve may be reached at