For a better experience, click the Compatibility Mode icon above to turn off Compatibility Mode, which is only for viewing older websites.

Faculty Offer Perspectives on Supreme Court Vacancy in Wake of Justice Scalia’s Death

Professors David S. Cohen and Lisa McElroy

February 15, 2016

The ideological shift on the U.S. Supreme Court sparked by Justice Antonin Scalia’s death ensures that Roe v. Wade will remain intact, Professor David S. Cohen wrote in an essay published in Rolling Stone on Feb. 13.

If the case involving an abortion law in Texas produces a 4-4 split, the ruling would uphold restrictions on clinics in that state but it would lack the power to overturn Roe v. Wade, for which some observers have been bracing, Cohen said.

Affirmative action “remains on the chopping block,” Cohen said, explaining that Justice Anthony Kennedy’s swing vote could tilt the court to favor or oppose the University of Texas’ race-conscious admissions policy.

“Every issue that has a likely liberal/conservative divide and is now pending before the Supreme Court has to be assessed in the same way,” Cohen said. “With the likelihood of an extended vacancy high, we will probably see a slew of 4-4 decisions coming our way.”

A National Law Journal article exploring the likely nominees to replace Justice Scalia quoted Professor Lisa McElroy on the battle that has erupted between the White House and Senate Republicans.

McElroy said the president’s first nominee may be a “sacrificial lamb” whom the Republicans would block but could be followed by a second candidate who gets through.

“Anyone on the president’s short list should hope she is not the first pick,” McElroy said.