Jonathan Chait in New York Magazine:
The death of Supreme Court Justice Antonin Scalia is a sad and tragic event for his loved ones, including 28 grandchildren and a large network of admirers. The political stakes for the country, its governing institutions, and, yes, the planet dwarf them in scale. The mortality of Supreme Court Justices is an element of wild randomness in the American political system. Enormous stakes rest upon the frail vulnerabilities of human flesh. Thurgood Marshall’s retirement 13 months before the 1992 presidential election, and two years before his death, paved the way for his replacement by Clarence Thomas. In today’s polarized era, no justice who had the physical ability to stay on would depart a Supreme Court seat under an opposing-party president. Whether and how the current system can handle these jolts of random chance is an open question.
The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.
Even if the Senate does not confirm any successor, then, Scalia’s absence alone reshapes the Court.