Supreme Court Justice Antonin Scalia, who died earlier today in Texas, may have managed by the accident the timing of his demise, to have done a favor to his opponents. As readers know all too well, Scalia was noteworthy for his consistent right wing position and his lack of inhibition about making creative arguments to support it.
Some pending cases before the Supreme Court had been expected to split on ideological lines, meaning a 5-4 favoring conservatives. With Scalia dead, that moves the anticipated vote to 4-4. A deadlock reaffirms the lower court decision.
One important case up for 2016 is Friedrichs v. California Teachers Association, in which the plaintiffs were seeking to reverse an appellate court decision allowing unions to impose fees on non-members for collective bargaining. As Time put it, “If the court issues a ruling this year, it is unlikely to break with the settled constitutional interpretation that unions can do so.”
Other cases scheduled for this year that are likely now to deadlock if they are heard as planned include, per ThinkProgress:
United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
Another case out of Texas, Whole Woman’s Health v. Hellerstedt, also could lead to confusion if the Court evenly divides. Whole Woman’s Health is the greatest threat to Roe v. Wade to reach the Supreme Court in a generation. If five justices back the Texas law in this case, it is unclear that there will be any meaningful limits on states’ ability to pass anti-abortion laws.
Without Scalia’s vote, however, the chances that the Supreme Court will uphold the Texas law outright is vanishingly small. Should they split 4-4, however, the Fifth Circuit’s decision upholding the Texas law will stand and states within the Fifth Circuit (Louisiana, Texas and Mississippi) will most likely gain broad discretion to restrict abortion while Scalia’s seat remains open. Meanwhile, the fate of the right to choose would rest upon which federal appellate circuit a woman happened to reside in. Women in fairly liberal circuits would likely continue to enjoy the same rights they enjoy under existing precedents, while women in conservative circuits could see their right shrink to virtual nothingness.
Geography could also play a significant role in deciding women’s ability to access birth control. To date, every federal appeals court to consider the question but one, the Eighth Circuit, has upheld Obama administration rules enabling women to obtain health plans that cover birth control even if their employer objects to contraception on religious ground.
There is a good chance that Justice Anthony Kennedy, a conservative who occasionally votes with the Court’s liberal bloc in politically charged cases, could vote to uphold these rules as well, producing a 5-3 vote. If Kennedy votes with the conservatives, however, women’s access to birth control will vary from circuit to circuit. Though it is likely that most circuits will follow the majority rule and uphold the rules, women in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) will not be as lucky…
Similarly, the plaintiffs in Evenwel v. Abbott, a case that could have effectively forced many states to redraw their congressional maps in ways that would give more power to white voters and less to communities with large numbers of immigrants, almost certainly will not have five votes. Because the court below ruled against these plaintiffs, states will not have to redraw their maps, for now.
Obama has said he intends to nominate a new Supreme Court justice. Republicans are arguing that the decision should be left to the next President and Congress. Aside from sheer the knee-jerk obstructionism, it’s hard to see the justification for this position, given that is is almost a full year before a new President would be sworn in.
But this makes Scalia’s death a gift to the “left” which means both progressives and their Vichy Left hangers-on. Democratic party turnout has been terrible in recent years, and for good reason. The fact that the economy is unlikely to be doing much better by election time (indeed, many economists are using the “r” word) would normally be fatal to Democratic party prospects unless Sanders manages to wrench the reins from the hand of the apparatchiks (as in he is so clearly hostile to the policies that caused this mess that he can credibly present himself as part of the solution rather than part of the problem). Having a protracted fight over the Supreme Court can only be a plus for Democratic party turnout (and Democrats are less consistent about voting than Republicans) and if Clinton prevails, might be one of the few things that might get some Sanders supporters to hold their noses and vote for her if she were to become the nominee.