Here’s What Will Happen If Republicans Block A Replacement For Scalia

Supreme Court Justice Antonin Scalia was found dead today at the age of 79. Already, Republicans are vowing that they will not allow Obama to appoint a judge.

Should this happen–given that Obama is in office for almost another year, and the previous record is 125 days–this will be the longest it will ever have taken to appoint a SCOTUS justice.

Now, the best case scenario is that he’s able to appoint one, somehow. Though given all the loony toon Republicans in the Senate right now–and the fact that they’ve got a 54% majority right now–that seems unlikely.

However! Our situation is not dire. In the event that a vacancy is left unfilled on the Supreme Court, the way it works is that it will just go on with 8 judges–and when there’s a tie, the court defers to the decision of a lower court. Right now? Those lower courts are stacked with liberals. While Kennedy tends to be the swing vote, if he votes with the more conservative judges, the court will abide by the previous decision of a lower, and likely more-left-leaning court–but without setting a national precedent.

Here’s how that could go with upcoming cases:

Whole Woman’s Health v. Hellerstedt–which will decide if states can create TRAP laws (Targeted Regulation of Abortion Provider laws) that exist explicitly for the purpose of shutting down abortion clinics. Originally, a federal district court ruled to block the Texas HB2 laws regulating abortion clinics, finding that they put an undue burden on women seeking abortion. However, on appeal, the 5th circuit first allowed the laws to go into effect while the case moved forward, and then ruled largely in favor of them–at which point SCOTUS put a stay on enforcing the laws until they could rule. Scalia was one of three judges who opposed the stay.

WIN–Still kind of up in the air, but not looking terrible. It’s somewhat likely that Kennedy will vote with the liberal justices on this, as he did in Planned Parenthood v. Casey, but even if he doesn’t, and the 5th circuit allows the laws to go into effect, at least it’s not forever. If Scalia was on the bench and Kennedy did find in favor of these laws, it would be, and we would lose the right to legal abortion.

Zubik v. Burwell (or Hobby Lobby 2.0) which will decide whether or not it violates the rights of an anti-abortion non-profit or company to fill out a form declining to cover birth control for employees, because filling out that form which allows them to then have it covered by the government). The Third Circuit Court ruled that filling out the form caused no substantial burden to defendants.

WIN- Us.

Fisher v. The University of Texas at Austin–the one with that white girl crying about how black people stole her spot at a college from her. The Fifth Circuit court has found in favor of the University of Texas twice.


Evenwel v. Abbott,  a case that could take voting power away from urban areas by enabling redistricting based on eligible voter population instead of actual population–in that case, the lower court found in favor of districting based on actual population, which is a good thing for us.

WIN-Us, which is a good thing for November.

So, for now at least, it’s not going to be the end of the world if the Republicans throw a hissy fit and refuse to allow Obama to appoint a SCOTUS justice.


It’s not a joke now, it’s not a possibility. It’s a fact. We need to win this goddamned election. If we can replace Scalia–because they can’t hold out forever–WE FUCKING WIN. If we get a Democratic President in, and she or he replaces Scalia, and replaces any of the other judges of retirement age, WE WIN.

I’ve been saying all along–this is primarily a vote for the next Supreme Court Justice. We cannot fuck around now. We need to play the long game. I don’t fucking care if you don’t like Hillary Clinton, or you don’t like Bernie Sanders, or you’re not really sure either one is reaching you the way they need to be reaching you. GET YOUR MOTHERFUCKING ASS OUT THERE AND VOTE FOR WHOMEVER WINS THE DEMOCRATIC NOMINATION. We need everyone who voted for Obama, and everyone who stayed home. Because we cannot lose this. We can’t. Presidents are for four years, Supreme Court Justices are for life. We win the court, we win everything. We lose the court, we lose everything–and there is nothing that the President of your dreams will be able to do to correct it.