The U.S. Supreme Court has long tried to stay above politics. Now it’s the focus of a political clash that has few parallels in American history.

Justice Antonin Scalia’s unexpected death -- and Senate Republicans’ refusal to confirm a successor while President Barack Obama is in office -- threatens to ignite a year-long battle over the court’s future.

Antonin Scalia
Antonin Scalia
Photographer: Alex Wong/Getty Images

The controversy risks exacerbating what Chief Justice John Roberts cites as a prime concern: the public’s tendency to view members of the court as partisans, rather than as impartial judges. The fight is fueling a presidential campaign that already was unusually concerned with the judiciary and is creating the prospect that the shorthanded court will deadlock on a string of important cases.

"We are in untested waters in the modern era," said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center.

Obama’s promised nomination will be the first made in an election year since 1968. Should Republicans thwart the president, the vacancy could become the longest since a year-long gap in 1969-1970. A new president might take office in January 2017 with an empty seat for the first time since Abraham Lincoln’s inauguration in 1861.

All of that will provide a fresh test of the court’s ability to stand apart from the country’s political debates as the justices handle pending cases involving abortion, immigration, affirmative action and voting rights. Scalia, nominated by President Ronald Reagan in 1986, was the longtime anchor of the court’s conservative wing.

Bush v. Gore

The court’s independence from the country’s partisan battles has been under strain. The justices embroiled themselves in presidential election politics in 2000 when they divided along ideological lines to break a deadlock in favor of Republican George W. Bush. For the past 5 1/2 years, the court has decided many major cases with the five Republican appointees -- including Scalia -- on one side and the four Democratic nominees on the other.

The court’s public approval rating slid during that time, falling from 62 percent in 2000 to 45 percent in September 2015, according to Gallup.

Earlier this month, before Scalia’s death, Roberts told a law school audience that the nomination and confirmation process was coloring members of the court with a partisan hue.

Scalia’s bench chair
Scalia’s bench chair
Source: U.S. Supreme Court

"When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms," Roberts said at New England Law in Boston. "We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process."

Mitch McConnell

The partisanship surrounding the new Supreme Court vacancy has been especially intense. Even before the White House said that Obama would nominate a successor to Scalia, Republican Senate Majority Leader Mitch McConnell said the vacancy shouldn’t be filled until after the November vote. "The American people should have a voice in the selection of their next Supreme Court justice," the Kentucky senator said in a statement.

Democrats call that an irresponsible stance that will leave the court unable to fulfill its responsibilities, with the prospect of major cases ending in 4-4 tie votes that set no legal precedent.

"For Senate Republicans to reject the idea that the president would have the audacity to do his job for the remainder of his term shows you just how bad things are in this Republican Congress," said Senator Dick Durbin, an Illinois Democrat.

Some legal scholars say the court can avoid being tarnished by the confirmation battle.

Institutional Stature

"The president and Senate have more to lose in terms of institutional stature," said Kevin McGuire, a political science professor at the University of North Carolina. "The court is pretty much a passive participant in this process of filling vacancies. So a prolonged battle over whether to confirm an Obama nominee will bring criticism down on both institutions, but not the court itself."

Still, the presidential candidates are discussing the court through an increasingly political lens. Democrats Bernie Sanders and Hillary Clinton have discarded the once-sacrosanct notion that presidents shouldn’t use a "litmus test" for potential nominees. Both have said that, if elected president, they will demand that their nominees to the court oppose the 2010 Citizens United ruling, which opened the way for more political spending.

On the Republican side, a new ad by Ted Cruz casts his party’s frontrunner, Donald Trump, as untrustworthy for the job of picking justices. Cruz previously said Bush made a mistake by selecting Roberts to be chief justice. Roberts voted twice to uphold key elements of Obama’s health-care law.

Perry of the University of Virginia said that, for the country’s sake, the court will want to keep its distance.

"It is never in the court’s institutional interest to find itself in the muck and mire of electoral politics, which is why the founders tried to insulate it as best they could," she said. "The court serves the nation most effectively when it remains above the fray."

Before it's here, it's on the Bloomberg Terminal. LEARN MORE