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Scalia’s death flips Supreme Court dynamics, hurts conservative hopes Scalia’s death flips Supreme Court dynamics, hurts conservative hopes
(about 7 hours later)
Justice Antonin Scalia’s sudden death Saturday flips the dynamics of the Supreme Court and undermines conservative hopes for far-reaching victories on important social controversies such as abortion, immigration and unions. Justice Antonin Scalia’s sudden death Saturday shifts the dynamic of the Supreme Court and undermines conservative hopes for far-reaching victories this term on important, highly controversial issues such as abortion, immigration and unions.
Regardless of the battle between President Obama and Republican leaders in the Senate over a successor, the absence of Scalia tilts the balance of the current court and could blunt the impact of a term filled with controversies that dominate the nation’s political conversation. If Republican leaders hold to their pledge not to confirm anyone President Obama nominates, it could affect the next term as well, having a dramatic impact on the cases an eight-member court accepts and decides in the term that begins in October.
[Supreme Court Justice Antonin Scalia dies at 79][Supreme Court Justice Antonin Scalia dies at 79]
And it will affect the next term, as well. If Republicans hold to their pledge not to confirm anyone Obama nominates, it will have a dramatic impact on the cases an eight-member court accepts and decides in the term that begins next October. The battle lines being drawn will probably only add to the concern that Chief Justice John G. Roberts Jr. expressed recently that the officially nonpartisan court is being viewed with the same skepticism voters reserve for the political branches.
Conservatives could still prevail on many of the cases before the court this term, but the wins could come on tie votes that preserve the status quo rather than provide precedents that will shape the future. In the short term, conservatives could still prevail on many of the cases before the court this term. But the wins could come in the form of tie votes that preserve the status quo rather than provide precedents that will shape the future.
On other issues, an evenly divided court would mean upholding lower court victories that liberals were trying to preserve.On other issues, an evenly divided court would mean upholding lower court victories that liberals were trying to preserve.
If the court splits 4 to 4 on a case, the ruling simply affirms the decision of the appeals court from which it came, without setting a national precedent. “The possibility of big conservative wins this term has gone down dramatically,” said Irv Gornstein, head of the Supreme Court Institute at Georgetown Law Center.
If the court splits 4 to 4 on a case, the ruling simply affirms the decision of the appeals court from which it came, without setting a national precedent. No opinion is issued. And Supreme Court experts agree that votes Scalia would have taken on cases already argued do not count.
[Obama says he will nominate a successor to Scalia][Obama says he will nominate a successor to Scalia]
In some cases, such as whether Obama properly used his powers to shield from deportation millions of illegal immigrants who have long-standing ties to the country, a divided court could doom the president’s chances of implementing the program. That is because a panel of the U.S. Court of Appeals for the 5th Circuit ruled against him.In some cases, such as whether Obama properly used his powers to shield from deportation millions of illegal immigrants who have long-standing ties to the country, a divided court could doom the president’s chances of implementing the program. That is because a panel of the U.S. Court of Appeals for the 5th Circuit ruled against him.
But Scalia’s absence might restrict the court from making a more far-reaching decision about the president’s powers. But Scalia’s absence might restrict the court from making a more far-reaching decision about the president’s powers, a question that it added when it agreed to hear the case.
In some cases, a diminished conservative majority might hand unexpected victories to liberals. In some cases, a diminished conservative majority might mean unexpected victories for liberals.
The best example of that concerns a battle over public employee union fees that the court considered last month.The best example of that concerns a battle over public employee union fees that the court considered last month.
At oral argument, the court seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim that their free-speech rights are violated when they are forced to pay dues to the state’s teachers union. At oral arguments, the court seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim that their free-speech rights are violated when they are forced to pay dues to the state’s teachers union.
The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.
But the lower court, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united that way too, a 4-to-4 vote would mean that the precedent and union victory would stand. But the U.S. Court of Appeals for the 9th Circuit, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united in upholding the precedent, a 4-to-4 vote would mean the union victory would stand.
Scalia’s death could even affect cases not yet teed up for the court’s decision. Last week, the court, on a 5-to-4 vote, stayed implementation of Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged. Scalia’s death could even affect cases not yet teed up for the court’s action. Last week, the court, on a 5-to-4 vote, stayed implementation of Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.
The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s decision did not address the merits of the challenge but indicates justices think the states have raised serious questions. [Supreme Court freezes Obama plan to cut carbon emissions]
The stay was unusual because no court had yet ruled on the legality of the plan. But the U.S. Court of Appeals for the D.C. Circuit will hear the challenge in June. Whichever way it ruled, the question would be whether there would be a reason for a divided Supreme Court to accept the resulting appeal. The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s granting of the stay did not address the merits of the challenge but indicated the five conservative justices thought the states have raised serious questions.
Without Scalia, there are four members of the court, all nominated by Republican presidents, who most often vote conservative. They are Chief Justice John G. Roberts Jr. and justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. But Kennedy most often is the justice in the middle, voting with liberals on issues such as the death penalty and gay rights. The stay was unusual because no court had yet ruled on the legality of the plan. Now, the U.S. Court of Appeals for the D.C. Circuit will hear the challenge in June.
The court’s four liberals, all named by Democratic presidents, have had success when they have voted together and lured Kennedy, and occasionally Roberts, to their side. They are justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. If the appeals court upholds the plan, would the four remaining conservatives feel it was worth accepting an appeal if it were clear that it would be impossible to get a fifth vote from one of the liberals?
That sort of gamesmanship will be played out in the months before the court adjourns at the end of June. And the result could be that the law would be interpreted different ways in different regions of the country.
For instance, a Texas law that imposes new restrictions on abortion providers was found constitutional by a panel of the U.S. Court of Appeals for the 5th Circuit. A 4-to-4 tie would uphold that finding. But a similar law in Wisconsin was struck down and would be unaffected by the court’s tie in the Texas case.
One option for the court is to hold on to a case and have it reargued in the new term that begins in October. It has employed that option in the past when there was a transition.
But there might seem little reason to do that if there would be no new member of the court until months after a new president in inaugurated in January.
The court’s dynamic will change in other ways.
For the first time in decades, conservatives and liberals will be on equal footing in the eight-member Supreme Court.
Without Scalia, there are four members of the court, all nominated by Republican presidents, who most often vote conservative — Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. But Kennedy is the justice in the middle, voting with liberals on issues such as the death penalty and gay rights.
The court’s four liberals, all named by Democratic presidents, have had success when they have voted together and brought Kennedy, and occasionally Roberts, to their side. They are justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
[Supreme Court’s liberals prevailed in important cases, but it may not last][Supreme Court’s liberals prevailed in important cases, but it may not last]
Here are some of the cases on the current docket that could be affected by Scalia’s absence: It is the first time in generations that the court’s ideological divide so neatly aligns with its partisan appointments.
Fisher v. University of Texas at Austin The last three justices Alito, nominated by President George W. Bush and Obama’s choices Sotomayor and Kagan faced opposition in largely party-line votes during their confirmation process even though there was no controversy about their qualifications, Roberts said at a law school speech in Boston.
The Supreme Court in July agreed to consider again whether race-conscious college-admission plans are constitutional. Two years ago, the court voted 7 to 1 to send the University of Texas at Austin’s plan back for further judicial review and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race. “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,” he said. “If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.
That ruling was largely seen as a punt on the part of a deeply divided court: It stopped short of forbidding the consideration of race, significantly altering the court’s prescription of how such programs should operate, or even passing judgment on the UT program at issue. “And that’s just not how we don’t work as Democrats or Republicans.”
Upon reconsideration, a panel of the U.S. Court of Appeals for the 5th Circuit once again upheld the program. In a 2-to-1 vote, the panel said it was applying “exacting scrutiny,” but it concluded that UT’s limited consideration of race was “necessary” and narrowly tailored to meet the university’s compelling interest in achieving student-body diversity. Labels aside, the court will be different without Scalia. He was a liberal attorney’s nightmare at oral argument, a dominating presence who often asked the most questions and got the most laughs. That bloc of the court will be much quieter without him.
Lawyers opposed to affirmative action and representing Abigail Fisher, a white woman who was denied admission to UT and filed suit in 2008, said the lower court had ignored the Supreme Court’s instructions. And because of their sway, the conservative justices have never had to be as strategic as their colleagues on the left. They often agreed on the outcome of a case but split over the reasoning. They wrote separately even in major cases; Scalia was famous for not joining an opinion unless he agreed with every word of it, even the footnotes.
The court already was working with one less justice in this case; Kagan sat it out, presumably because she worked on the issue when she was Obama’s solicitor general. That means only seven justices would decide whether the appeals court was correct to uphold the program. And Scalia’s brand of constitutional interpretation, or textualism, sometimes led him to take positions he said he found uncomfortable. He sometimes joined unusual coalitions of the justices in cases such as upholding free-speech rights of those with whom he disagreed, or siding with criminal defendants who challenged law enforcement techniques.
[Supreme Court divided over University of Texas admissions plan]
United States vs. Texas
Obama’s executive action shields from deportation more than 4 million people who are parents of citizens or of lawful permanent residents and allows them to “come out from the shadows” to work legally, as Obama put it when announcing the program in November 2014.
The executive action was put on hold by a panel of the U.S. Court of Appeals for the 5th Circuit. A split court would uphold that decision and keep Obama from implementing it before he leaves office next January. But it might be more difficult to answer broader questions about a president’s powers in such matters.
Arguments are scheduled for April.
[Supreme Court to review Obama’s deportation power]
Zubik v. Burwell
Also before the court is another challenge to the Affordable Care Act, this time over whether religiously affiliated organizations such as universities, hospitals and charities can be freed from playing any role in providing their employees with contraceptive coverage.
The case pits questions of religious liberty against a woman’s right to equal health-care access, and it will be the fourth time the court has considered some aspect of what has also come to be known as Obamacare.
Seven appeals courts that have decided on the controversy found in favor of the Obama administration. But one did not. Presumably, a split court would mean the law is interpreted differently depending on the region of the country.
[Supreme Court accepts challenge to contraceptive requirement]
Whole Woman’s Health v. Hellerstadt
The Supreme Court next month is set to hear its most consequential abortion case in nearly a quarter-century, agreeing to determine how far states may go in regulating the procedure without violating a woman’s constitutional rights.
The case from Texas could affect women across the nation. Numerous states have enacted restrictions that lawmakers say protect a woman’s health but that abortion providers contend are merely a pretext for making it harder to obtain an abortion or even making the procedure unavailable within a state’s borders.
Abortion providers say full implementation of the Texas law passed in 2013 would reduce from 42 to 10 the number of clinics in the nation’s second-largest state. The court took no action on a case from Mississippi, where a similar law would close the state’s only clinic if it were allowed to proceed. That law was stopped in a lower court.
The outcome of the Texas case will turn on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. It said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.
[Supreme Court takes up major challenge to abortion restrictions]