Bloomberg View (Opinion)
By Noah Feldman
February 17, 2016
How
will the death of Justice Antonin Scalia affect the major cases before
the U.S. Supreme Court this term, all of which are expected to be
decided by the end of June?
The answer doesn’t depend entirely on how Scalia would’ve voted. It
also depends on a necessary rule of procedure: When the Supreme Court is
divided equally, it upholds the decision below.
Applying
this dual analysis to five major cases in the pipeline yields some
surprising results. The issues involved are: fees in lieu of union dues
for nonunion workers,
the University of Texas’s affirmative-action admissions program,
Texas’s restrictive abortion law, President Barack Obama’s executive
action on immigration, and a group of nuns’ demand to be exempted from
filing a certificate so they won’t have to pay for
employees’ contraceptive insurance under the Affordable Care Act. By my
reckoning, most of these cases now have a strong chance to come out
differently than they would’ve had Scalia lived through the end of the
term.
Start
with Friedrichs v. California Teachers Association, the union dues case
argued in January. Most observers, myself included, thought it was
highly probable that the
court would repudiate the 1977 precedent of Abood v. Detroit Board of
Education, based on a 5-4 decision from 2014 in which the justices
strongly hinted that this was coming. The precedent says that nonunion
members must pay the equivalent of partial dues
to compensate the union for the benefits they receive from collective
bargaining; the court was expected to eliminate the requirement using a
theory based on the freedom of association.
The
case before the Supreme Court, however, is based on a petition filed by
Rebecca Friedrichs, who lost in the 9th Circuit Court of Appeals. The
appellate court could
read the writing on the wall as well as anyone, but it correctly
decided to follow the Supreme Court’s precedent and not the smoke
signals about where it might be going.
Scalia’s
vote was needed to overturn the Abboud case. Without it, the case will
likely be decided 4-4 -- which means the decision below will be upheld
by divided court.
No new binding Supreme Court precedent will be formed. Instead of
winning a major battle against unions, conservative free-association
advocates will have to wait for another day, and another configuration
of justices.
The
affirmative-action case, Fisher v. University of Texas at Austin, was
widely expected to depend on the swing vote of Justice Anthony Kennedy.
The 5th Circuit upheld
the Texas admissions sorting hat. A 4-4 decision would uphold that
judgment. But Justice Elena Kagan is recused because she worked on the
case when she was solicitor general.
If
he wants to, Kennedy could still vote to strike down the 5th Circuit’s
decision, yielding a 4-3 advantage for the conservatives. That would
count as a majority in a
technical sense, and in theory would have precedential weight. But it’s
highly unattractive to decide landmark cases with the number of votes
that ordinarily loses cases. A 4-3 decision is begging to be
reconsidered by a newly configured court. And Kennedy
has always believed that precedent should last. As he famously (and
ponderously) put it in 1992, “liberty finds no refuge in a jurisprudence
of doubt.”
At
oral argument in December, Kennedy seemed to be toying with the idea of
deciding not to decide affirmative action. Now it seems almost certain
that he will take that
course rather than determine such a hugely important issue with four
votes.
Affirmative
action will live another day -- and maybe a lot longer than that,
depending on who gets to appoint the next several justices.
The
Texas abortion case to be argued March 2, Whole Woman’s Health v.
Hellerstedt, is an anomaly. The 5th Circuit upheld the law despite its
effect of closing down most
of the abortion clinics in the state. Kennedy was expected to be the
deciding vote, and he still will be. If he votes to uphold the decision
below, the tally will almost certainly be 4-4. If he votes to strike it
down, it’ll be 5-3. Either way, he makes the
call.
Obama’s
executive action on immigration was and remains more unpredictable than
the other cases -- but its circumstances have changed, before its oral
argument has even
been scheduled, especially as constitutional precedent will be
determined. U.S. v. Texas arose after a federal district court issued a
preliminary injunction that blocked the plan from being implemented
anywhere in the country until the district court could
hold a trial, which could take years. The 5th Circuit upheld the
injunction, including its nationwide scope.
The
court’s four liberals are sure to vote for striking down the decision
below. It’s a pretty safe bet that Scalia and Justices Clarence Thomas
and Samuel Alito would’ve
voted to uphold the 5th Circuit. But Kennedy is uncertain, as is Chief
Justice John Roberts.
If
Scalia had lived, and both Roberts and Kennedy had voted that Obama
overstepped his authority, the result would’ve been a landmark decision
on executive power, probably
written by Roberts.
Instead,
the most the conservatives can hope for is a 4-4 decision upholding the
5th Circuit by a divided court. The 5th Circuit opinion won’t be
binding precedent on
other courts or future presidents. The long-term effect on executive
action relating to immigration won’t be significant.
In
practice, Obama’s plan might not be implemented. But even that’s not
absolutely certain, at least outside Texas. It was very unusual for the
5th Circuit to issue an
injunction binding the Obama administration nationally.
There’s
a legitimate technical question about whether the national injunction
should remain in place after the Supreme Court has heard the case. It
would take five votes
for Supreme Court to issue a national injunction itself -- votes that
certainly won’t exist. Therefore it’s at least conceivable that the plan
could go into place outside the 5th Circuit.
Last
come the Little Sisters of the Poor, whose case will be heard on March
23. Their claim under the Religious Freedom Restoration Act wasn’t
certain to win, but they
needed Scalia’s vote to have a chance. Even if Kennedy sides with them,
they’ll lose -- because the 10th Circuit held against them. The Supreme
Court took other cases from other circuits with different rulings at
the same time, so the law will be different
in different parts of the country for the time being. The court will
have to revisit the issue when it’s at full strength. For now, the nuns
will surely miss having Scalia on the bench.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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