The Vacant Supremacy


Associate Justice Antonin Scalia, the longest serving member of the current Supreme Court and a champion of conservatism passed away February 13, 2016 at the age of 79. Scalia’s death marked only the second time in sixty years that a Supreme Court justice had died in office, following the death of Chief Justice William Rehnquist in 2005. Scalia’s death will leave the Supreme Court evenly split with only 10 months until the end of President Obama’s second term and with a Republican controlled Senate.  With that control Republicans are holding President Obama and Senate Democrats in a stranglehold by using “The Thurmond Rule,” named after the late Sen. Strom Thurmond (Republican-S.C.). This rule allows Republicans in the Senate to stop all executive nominations and bring the Supreme Court to a grinding halt.  

President Obama stated on February 13th that he planned “to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.” Majority Leader Mitch McConnell of Kentucky quickly made clear that the Republican-controlled Senate does not plan to act until after the November election in hopes that a Republican president would appoint another conservative. The Supreme Court is facing many important cases in 2016 and with the death of Associate Justice Scalia a vendetta has erupted between Senate Democrats and Republicans over confirming a presidential nomination to the Supreme Court, leaving Scalia’s seat vacant (and the cases on the docket in jeopardy) until a new president is sworn into office in January 2017.

A Senate rule change in 2013 nicknamed “The Nuclear Option”, changed Senate rules to allow for nearly all presidential nominations to be approved with 51 votes instead of 60 votes. This was a move made by Democrats while holding a majority in the Senate. Under previous rules the minority party could block a nomination with just 41 votes. Senate Democrats made these rule changes when Republicans, while holding a minority, systematically delayed nominations by President Obama in 2013.  

Speaking to Senator Reid about The Nuclear Option Senate Majority Leader Mitch McConnell (Republican-Ky.) stated “You’ll regret this, and you may regret this a lot sooner than you think,” Indeed Democrats did regret this after losing the majority in the Senate. For now Supreme Court nominees are exempt from this rule change but by changing Senate rules in 2013, Senate Democrats have opened the floodgates for the current Republican majority to change Senate rules as well. Effectively giving Senate Republicans the ability to block any nominations by the President for the foreseeable futureA blocked nomination will have serious effects considering the Supreme Court is poised to face many country changing decisions in 2016. An eight-member court could evenly split on many issues including religious freedom, healthcare, abortion rights, states’ rights and affirmative action. If the court ties when deciding a case, the decision of the appeals court remains in place leaving many of these issues unsolved until purportedly the next President is elected.  These are but a few of the country changing decisions facing the Supreme Court in 2016.

Zubik v. Burwell

Millions of women believe they deserve the right to contraception as outlined in the Affordable Healthcare Act.  Religious advocates backed by million dollar industry insist that religious freedom holds them exempt from providing contraception.  Do women’s reproductive rights or religious freedom reign supreme?

United States v. Texas

As part of his immigration plan in 2014 President Obama sought to delay the deportation of undocumented immigrants whose children were U.S. citizens or permanent residents. Many on the right see these people as illegal immigrants and want them treated accordingly under the law.

Whole Woman’s Health v. Cole

Abortion has always been divisive in the United States.  In 2016 women are battling the government once again for the rights of their bodies and access to abortion services.  The government seeks to determine what roll it has in restricting abortion services and to better define its interests in promoting health.

Fisher v. University of Texas at Austin

Abigail Fisher, a Caucasian female, believes that her application to the University of Texas was denied due to race being a factor in admissions.  The University of Texas is firm that they were simply promoting diversity on campus.  Should race be a factor in admissions?  

With a majority in the Senate, Republicans are under no immediate obligation to approve any nominee presented by the President. The Republican Majority should change Senate rules and allow Supreme Court nominations to be approved by simple majority. This would increase Senate Republicans political power for the time being at least until after the Presidential election. Republicans seem confident, much like Democrats did in 2013, that they will retain the majority in the Senate and win the Presidential election in 2016. If that is the case Republicans would be able to nominate and approve a Supreme Court Justice with no recourse by Senate democrats.  Of course there is the possibility that Republicans lose the majority in the Senate and lose the Presidential election. If Republicans lose the majority in the Senate and a Democratic President is elected in 2016, Democrats would have the ability to quickly approve Presidential nominations and Republicans may end up regretting this rule change sooner than they thought.


Take Action:

I encourage everyone to learn more about the cases facing the Supreme Court by visiting

Many of these issues will change the lives of countless people in the United States which makes it important to take action immediately by visiting

Contact your Senator to urge them to find a compromise with the President. It takes both sides to reach across the aisle, contact President Obama and voice your opinion on finding a suitable Supreme Court nominee by visiting



Matthew Gordon is a PVNN Policy Corner writer who graduated with a B.A. in Political Science from Metropolitan State University of Denver. Currently, he is finishing his M.A. in Political Science from the University of Colorado-Denver. He specializes in Economic Policy, specifically income inequality and poverty in the United States and abroad. Matthew is also a writer for the U.S. Basic Income Guarantee Network. His interest in politics started at a young age, but as a professional – earning a paycheck and paying taxes (income taxes) – his knowledge and interest has grown. As a Policy Corner writer, Matthew aims to provide detailed policy options and recommendations by thorough research of reputable sources.

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