By Richard Wolf
March 31, 2016
Days after Justice Antonin Scalia's death last month, two of his eight remaining colleagues were asked how the Supreme Court would function without him.
"For the most part, it will not change," Justice Stephen Breyer said of the day-to-day workload.
Added Justice Samuel Alito, matter-of-factly: "We will deal with it."
If the past few weeks are any indication, however, change has come to the high court, and the justices are dealing with it in fits and starts.
Cases large and small are ending in tie votes. The pace of decisions has slowed slightly, and fewer new cases are being granted. Scalia's commanding presence at oral arguments hasn't been filled — nor, presumably, his role as the court's éminence grise at private conferences where decisions are made.
This week, apparently dissatisfied with all its options in a major case pitting religious freedom against reproductive rights, the court went so far as to suggest a solution that neither side had advocated. That's far afield from what Chief Justice John Roberts has called a judge's traditional role — calling balls and strikes.
Perhaps the biggest change has been the simple subtraction of the court's senior justice, whose firm views on most matters of law gave his colleagues a viewpoint to rally around or rail against.
"None of them has ever been on the court without Justice Scalia," says Erwin Chemerinsky, a Supreme Court scholar and founding dean of the University of California, Irvine School of Law.
The impact was on display throughout February and early March, when Scalia's place on the bench was left vacant and draped with black cloth. It was noticeable later in March with a new, seniority-based seating arrangement, forcing Justice Sonia Sotomayor at one point to interrupt an advocate at the lectern: "Counsel, I'm over here."
Suddenly, Justice Anthony Kennedy — for a decade the court's most likely swing vote — wasn't the only focal point for lawyers in close cases. With five votes needed for a precedent-setting verdict, lawyers representing conservative causes need one of the four liberal justices as well.
Scalia's absence even appeared to affect the courtroom behavior of his closest friend there, Justice Clarence Thomas, who broke a 10-year silence Feb. 29 with a series of questions in a case affecting gun rights. True to form, Thomas quickly reverted to silence throughout March.
"Justice Scalia occupied a lot of space at oral argument," says Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. "Who is going to take up the questioning? In the most contentious cases, the pressure will be on the chief justice and Justice Alito."
With Senate Republicans vowing that they will not confirm a ninth justice until the nation has a 45th president, the court could remain a man down for a year or more. That's sure to weaken its grip on the nation's lower courts in cases where the justices can't break a tie.
The first sign of the times came last week, when the court deadlocked in a bankruptcy dispute between a Missouri bank and a development company that defaulted on its loans. It was a fairly minor case that drew little notice when it was argued on the first day of the term last October.
Then this week, one of the court's most important cases emerged in a tie, giving public employee unions a reprieve from what looked like a sure loss in a battle over the fees they collect from non-members. A likely 5-4 defeat for the California Teachers Association became a deadlock, which upheld the union's victory at the federal appeals court.
That one-sentence ruling — "The judgment is affirmed by an equally divided Court" — was one of only two decisions handed down this week, a further indication that Scalia's death has slowed the process. So far, 13 cases have been decided in the court's February and March sittings, down slightly from an average of 18 in recent years.
More apparent has been the slower pace of new cases accepted for consideration — just two since Scalia died, compared to an average of about 12 during the same period in recent years. It takes the votes of four justices to hear a case but five to win, which sometimes deters those inclined to hear it. The specter of tie votes rendering the process almost meaningless adds a new wrinkle.
"The fear of the end game is a different fear now," says Stephen Wermiel, a constitutional law professor at American University Washington College of Law.
That fear may have prompted the court's highly unusual order Tuesday. The justices asked for new briefs from both sides in the challenge brought by religiously affiliated employers — such as charities, hospitals and universities — to the federal requirement that their employees receive free coverage of contraceptives.
The Obama administration's solution, rejected by the non-profits but upheld by most lower courts, called for them to write a letter or file a form transferring responsibility to insurers or third-party administrators. The justices asked if that could happen "without any such notice" from the employers — something akin to an immaculate conception.
"I cannot think of another example where the Supreme Court, in an order, suggested a compromise and then asked the parties to brief it,” Chemerinsky said. "I had to read it three times to understand what it was saying."
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