Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term

New York Times

By Adam Liptak

February 14, 2016

Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term 

Justice Antonin Scalia’s death will complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term, probably change the outcomes of some major cases and, for the most part, amplify the power of its four-member liberal wing.

It takes five votes to accomplish most things at the Supreme Court, and until Saturday, that meant Justice Anthony M. Kennedy was in control when the court’s four-member liberal and conservative blocs lined up against each other. But with three remaining conservatives, only the liberal side can command a majority if it attracts Justice Kennedy’s vote. And if it does not, the result is a 4-to-4 deadlock.

If that happens, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent. Or it can set the case down for re-argument in the term that starts in October in the hope that it will be decided by a full court.

“It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term, as the court does here with Justice Scalia’s death,” said Justin Driver, a law professor at the University of Chicago. “This event almost certainly throws many cases that had been tentatively decided by 5-4 margins into grave doubt, and will likely require the justices to reassess many opinions.”

Closely divided cases are the exception rather than the rule at the Supreme Court, and Justice Scalia’s death will not affect ones decided unanimously or by lopsided margins. The majority opinions he had been drafting will be reassigned to other justices.

But six big cases are on the court’s docket this term — on abortion, contraception, unions, voting rights, affirmative action and immigration — and Justice Scalia’s death may affect all of them.

The clearest impact is likely to be in Friedrichs v. California Teachers Association, No. 14-915, on the power of public unions. When the case was argued in January, it seemed clear that the court was headed toward a closely divided decision in which the conservative majority would rule that workers who chose not to join public unions could not be made to pay for the union’s collective bargaining work.

The likely outcome now is a 4-to-4 split that would leave in place a decision from the federal appeals court in California upholding the mandatory payments. That would be a major victory for the liberal justices and public unions.

A similar dynamic may be in play in Evenwel v. Abbott, No. 14-940, an important voting rights case. It concerns the meaning of “one person, one vote,” asking who must be counted in creating voting districts: all residents or just eligible voters?

The difference matters because people who are not eligible to vote — children, immigrants here legally who are not citizens, unauthorized immigrants, people disenfranchised for committing felonies, prisoners — are not spread evenly across the country. Except for prisoners, they tend to be concentrated in urban areas, amplifying the voting power of Democrats.

A ruling requiring or allowing the counting of only eligible voters now seems less likely, and a 4-to-4 split would leave in place an appeals court decision upholding Texas’ practice of counting everybody.

“They can return to the issue later,” David A. Strauss, a law professor at the University of Chicago, said of the justices. “It’s been unsettled for 60 years, so it can wait.”

While re-arguments are not uncommon, they generally involve a full court that wants to take another look at an issue.

Some of the most important cases in history, including Brown v. Board of Education in 1954, Roe v. Wade in 1973 and Citizens United v. Federal Election Commission in 2010, were decided after re-arguments. Under Chief Justice John G. Roberts Jr., the court had two cases re-argued after Justice Samuel A. Alito Jr. replaced Justice Sandra Day O’Connor in 2006, apparently to resolve deadlocks. In at least one of them, Hudson v. Michigan, the result seemed to change.

But the court is unlikely to tip its hand until the end of June. Its criteria for deciding between affirmances and re-arguments are opaque, and they may be influenced by an assessment of how soon a replacement for Justice Scalia could be confirmed.

In the major abortion case the court will hear next month, Justice Scalia’s absence may have no consequence. Abortion rights groups already had reason to think, based on an earlier vote on a stay application in the case, that there are five votes to strike down some of the law’s restrictions.

A 4-to-4 split in the case, Whole Woman’s Health v. Hellerstedt, No. 15-274, would be a loss for those groups, as the restrictions in Texas would then go into place. But Justice Scalia’s death seems to make a more restrictive revision of the constitutional standards nationwide quite unlikely, as the court’s four liberals would not go along.

Things are trickier in a challenge to regulations under the Affordable Care Act requiring some employers to provide contraception coverage to female workers or to sign a form opting out. The lower courts are divided on whether those options violate a federal law protecting religious liberty, and the Supreme Court agreed to hear seven separate petitions in the case, Zubik v. Burwell, No. 14-1418. It is scheduled to be argued next month.

A voting rights rally in Winston-Salem, N.C., in July. An important voting rights case before the court also will be affected by Justice Antonin Scalia’s death. Credit Travis Dove for The New York Times

“Affirming by an evenly divided court will leave the circuit split,” said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine. “I think that may cause pressure to see if there is a way for them to come up with a majority or, if not, to put the cases over for re-argument.”

Another tricky case is Fisher v. University of Texas at Austin, No. 14-981, a challenge to the university’s race-conscious admissions plan. When the case was argued in December, only eight justices were present, as Justice Elena Kagan had recused herself based on her work on the case as United States solicitor general. Now, only seven justices can vote in the case.

“To do something momentous by a 4-3 vote seems really unlikely,” Professor Strauss said. But the case restores Justice Kennedy to the court’s center, with blocs of three justices on either side, and a loss for the university on narrow grounds remains a possibility.

Fisher, then, is the sole case in which Justice Scalia’s death eliminated rather than created the possibility of a tie.

Perhaps the most closely watched case is a challenge from Texas and other states to President Obama’s plan to defer the deportations of more than four million unauthorized immigrants, United States v. Texas, No. 15-674. Here, an equally divided court would represent a big loss for the administration, as the decision under review affirmed a nationwide injunction blocking the plan.

On the other hand, it is possible that Chief Justice Roberts, Justice Kennedy or both may join the liberals in rejecting the challenge, perhaps on the ground that Texas lacks the direct and concrete injury that gives it standing to sue.

Gaming out the possible consequences of Justice Scalia’s death so soon may seem unseemly. The court will certainly take time to adjust to the absence of its longest-serving member.

“Justice Scalia’s sad and untimely death will cast a pall over the entire term and a shadow over the court as a whole at least until a successor is nominated and confirmed,” said Laurence H. Tribe, a law professor at Harvard.

But Justice Scalia’s death is also a vivid reminder of the vast consequences that follow from a single change in the court’s makeup, and of how much timing can matter. On Tuesday evening, for instance, the Supreme Court’s five-member conservative majority blocked Mr. Obama’s ambitious effort to combat climate change. Had the justices waited until their next regular conference, this Friday, to vote on the request for a stay, the regulation would have remained in place.

“No less than the viability of the historic climate change agreement reached in Paris may well be in peril,” said Richard J. Lazarus, a law professor at Harvard. “And without Justice Scalia’s vote, that stay would have been denied.”

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