At this point the public hysteria over the death and replacement of Justice Scalia has thankfully faded into the background. My opinion on his replacement is that the Constitution creates a duty for the Senate to advise and consent in good faith, but also that the political reality is that both parties in the Senate will continue to use that duty as a threat, as is tradition. What I think is more important is for citizens to be informed about the realities of an 8-justice Court and, in a broader sense, the importance of a political shift on the Court.
I remember Justice Scalia’s visit to my law school not so many years ago. In his speech, he encouraged us to look to how many of the Court’s decisions are decided in lopsided victories as opposed to close, controversial decisions. Here’s a place where you can do that: http://www.scotusblog.com/reference/stat-pack/. While there is some year-to-year variance, in 2014, there were thirty 9-0 decisions and nineteen 5-4 decisions. Over recent years, the average has been that 70% of cases are decided by a lopsided margin, while 10% are closer decisions (6-3), and 20% are decided by a 5-4 margin. Close decisions are often, but not necessarily, ideological—in 2014, six of the nineteen 5-4 decisions were decided by a mix of the “liberals” and “conservatives” on the Court, while thirteen of those cases were decided strictly by Justice Kennedy’s swing vote between the standard “liberal” and “conservative” grouping.
I take Justice Scalia’s point to be that ideological preferences are important but come into play in only a small fraction of cases. The numbers suggest there is merit to his point. Additionally, an 8-Justice Court decides cases with some frequency, because Justices do recuse themselves. This hasn’t resulted in a non-functional Court. The political posturing over Justice Scalia’s death won’t destroy the Court and it won’t destroy the country.
What is important is for citizens to have a better-informed idea of what it means to choose a Supreme Court Justice. Frequently this is presented to us as a choice between Presidential candidates who will nominate based on a cultural wedge issue that is, if you think about it, not that important in the everyday lives of most Americans (although it may be critical to the affected folks). I suggest looking at Justice Scalia’s record as an example. Justice Scalia was instrumental in reducing court access to challenge the actions of corporations or the government. At the same time, he was often a compelling voice for individual rights when law enforcement had abused its power. Those kinds of positions define the everyday rights of everyday Americans, whether they have access to justice, and how the state can treat them.
My humble suggestion is that citizens become informed about the individuals who might become a Justice rather than their assumed ideologies.