How
Scalia’s Absence Will Affect Pending Supreme Court
Cases
By Marjorie Cohn
February 19, 2016 "Information
Clearing House"
- The death of Supreme Court Associate Justice
Antonin Scalia raises a number of questions: What
will be Scalia’s legacy? What will happen to the
cases pending in the Supreme Court? Will President
Obama successfully fill Scalia’s seat on the high
court? And how will Scalia’s death affect the 2016
presidential election?
Scalia’s Record on the Court
Scalia, who was appointed to the Supreme Court by
President Ronald Reagan in 1986, was a radical
right-wing ideologue who called himself an “originalist,”
purporting to interpret the US Constitution the way
its framers did. He eschewed the idea that the
Constitution is a living document that keeps pace
with the times. And when voting to allow capital
punishment for crimes committed by juveniles, he
rejected the Supreme Court’s precedent that the
Eighth Amendment’s banning of cruel and unusual
punishments should be interpreted in light of the
“evolving standards of human decency that mark the
progress of a maturing society.”
Scalia favored unlimited corporate election spending
and he wrote that the Second Amendment grants an
individual the right to bear arms. He opposed
reproductive rights, universal health care, same-sex
marriage, affirmative action, voting rights,
immigrants’ rights, labor rights, LGBT rights and
environmental protection. When questioned about his
vote to anoint George W. Bush president in Bush v.
Gore, Scalia barked, “Get over it.”
During the oral arguments in Fisher v. University of
Texas, the affirmative action case pending in the
high court, Scalia said he was not “impressed by the
fact that the University of Texas may have fewer”
Black students. He added, “Maybe it ought to have
fewer. I don’t think it stands to reason that it’s a
good thing for the University of Texas to admit as
many Blacks as possible.”
Many of Scalia’s opinions demonstrate how out of
touch he was with ordinary people. Authoring an
opinion that created the right of police officers to
chase people without probable cause or reasonable
suspicion, Scalia quoted Proverbs: “The wicked flee
when no man pursueth.” He could not imagine why an
innocent young person of color might run when he
sees a police officer. And when voting to repeal
Miranda rights, Scalia wrote in dissent, “Counsel’s
presence is not required to tell the suspect that he
need not speak. The interrogators can do that.” As
if a police officer would be looking out for the
rights of a suspect.
Scalia opposed televising Supreme Court arguments.
He once sanctimoniously declared, “Law is a
specialized field, fully comprehensible only to the
expert.”
The Pending Cases
Several cases to be decided this term have already
been argued and the justices have likely voted on
them. Opinions are being written. So what will
happen now? Even if Obama were to nominate a
replacement, he or she would not be confirmed before
the current term ends in June.
Cases in which Scalia was assigned to author the
majority opinion will probably be set for
re-argument next term, which starts in October,
hopefully with a new justice. If Scalia was part of
a five-justice majority, the court will now be
divided 4-4. In cases in which there is no majority,
the lower court decision will be “affirmed by an
equally divided court.” It will create no binding
Supreme Court precedent. Some cases may be decided
on narrow procedural grounds in order to avoid
equally divided rulings.
Nine of the 13 US Courts of Appeals have a majority
of judges who were appointed by Democrats. Thus,
many cases in which the court is evenly divided and
the lower court decision stands will have liberal
outcomes.
In Friedrichs v. California Teachers Association, it
appeared that public sector unions would lose the
right to collect mandatory dues from their members
in order to fund collective bargaining. Now it
appears the case will result in a tie, leaving the
lower court decision in place. That means unions in
California and 22 other states would retain their
right to collect dues.
Evenwel v. Abbott is a voting rights case. The issue
is who should be included when creating voting
districts: all who reside in them or only eligible
voters? A 4-4 tie would leave the lower court
decision in place, which upheld the counting of
everybody. People who are not eligible to vote
include children, non-citizens, people formerly
convicted of felonies and prisoners. With the
exception of prisoners, most of these people deemed
ineligible to vote live in urban areas that are
largely Democratic. As a result, a tie in this case
would also have a liberal outcome.
Zubik v. Burwell is a “religious liberty” challenge
to a regulation under the Affordable Care Act that
requires some employers to provide birth control to
women workers if they don’t sign a form opting out.
The case will be argued next month and the lower
courts are divided on the issue. A 4-4 tie would
result in no decision. Most lower courts across the
country have upheld the “contraceptive mandate.”
Whole Woman’s Health v. Hellerstedt is perhaps the
biggest threat to Roe v. Wadeto reach the Supreme
Court. Texas imposed onerous restrictions on clinics
that perform abortions. If there were a 4-4 tie, the
lower court decision would stand, resulting in the
closure of most clinics in Texas, but not elsewhere.
Where a woman lives would determine whether she
could obtain an abortion. Associate Justice Anthony
Kennedy might vote with the liberals to overturn the
restrictions placed on women’s health clinics. But
even if Kennedy does not vote with the liberals,
Scalia’s absence still eliminates a broader risk
that previously existed: If Scalia had participated
in that decision, the court may well have allowed
states to impose restrictions.
Fisher v. University of Texas is an affirmative
action case about whether the University of Texas
can maintain a race-conscious admissions plan. Since
Associate Justice Elena Kagan recused herself
because she had worked on the case when she was
solicitor general, only seven justices can vote on
it. Kennedy will be the swing vote. If he swings to
the right, the university’s affirmative action
program will be struck down. Scalia’s death
eliminates the possibility of a tie vote.
United States v. Texas is a challenge to Obama’s
plan to defer deportation for nearly 5 million
undocumented immigrants. A 4-4 split would defeat
the program in the Fifth Circuit Court of Appeals,
but the US Justice Department could secure
authorizations to go forward with the plan in other
circuits. Had Scalia not died, the Supreme Court
would probably have imposed broader limitations on
Obama’s authority to issue executive orders.
A critical climate change decision is also pending
before the high court. Obama has charged the
Environmental Protection Agency (EPA) with reducing
carbon emissions by 32 percent by 2030. In a highly
unusual recent move, the Supreme Court issued a 5-4
emergency order blocking the plan, which was put on
hold pending a decision by the US Court of Appeals
for the DC Circuit. The circuit court, which is
generally liberal, refused to grant the stay before
the high court did so. The DC circuit court will
hear the case this summer. The EPA could change the
plan slightly and expect the circuit court to allow
it to proceed.
What Happens Next?
Senate Majority Leader Mitch McConnell vowed to
block anyone Obama might choose to nominate to fill
the vacancy on the court. The GOP candidates piled
on, reiterating that Obama should refrain from
nominating someone to fill Scalia’s seat so the next
president could make the nomination. They know that
Obama has an opportunity to change the balance of
what has been a conservative court for four decades.
But Obama does not have the discretion to refrain
from nominating a replacement for Scalia. The US
Constitution says that when a vacancy occurs on the
Supreme Court, the president “shall nominate, and by
and with the Advice and Consent of the Senate, shall
appoint … Judges of the supreme Court.” The language
is mandatory, not permissive. There is no exception
for vacancies that occur near the end of a
president’s term.
Interestingly, McConnell wrote in 1970 that “the
Senate should discount the philosophy of the
nominee” and that “the president is presumably
elected by the people to carry out a program and
altering the ideological direction of the Supreme
Court would seem to be a perfectly legitimate part
of a presidential platform.”
If no justice is appointed until the next president
takes office, there will be a vacancy on the high
court for nearly a year, hobbling its ability to
carry out its constitutional function.
Republicans disingenuously claim that no Supreme
Court nominee has been confirmed in an election
year. But Justice Anthony Kennedy was nominated by
President Reagan and confirmed in 1988, with nearly
unanimous support from Democrats. And in 11 of the
13 times a vacancy occurred during a presidential
election year, the Senate acted on the president’s
nomination.
For the most part, the Senate has deferred to
presidents’ choices for Supreme Court nominees.
Obama will probably nominate a moderate such as
Srikanth Srinivasan. In 2013, on a 97-0 vote, the
Senate unanimously confirmed Srinivasan, an
Indian-American judge, to the US Court of Appeals
for the DC Circuit. He had served as principal
deputy solicitor general, arguing some 20 cases on
behalf of both the George W. Bush and Obama
administrations. Although he doesn’t have a long
paper trail, Srinivasan would probably vote with the
liberal justices.
It appears that anyone Obama nominates will not get
a vote in the Senate. A president’s nomination is
referred to the Senate Judiciary Committee, which is
currently comprised of 11 Republicans and 9
Democrats. That committee should investigate the
nominee’s background and hold a hearing at which the
nominee is interrogated. The committee should then
vote on the nominee. If the committee votes against
the nominee, the nomination will not reach the
Senate floor for a decision. If it does reach the
Senate floor, a simple majority is required to
confirm a nominee. But Republicans can filibuster
the nomination, which means 60 votes would be
necessary for confirmation. The Senate has 54
Republicans and 44 Democrats.
Although filibusters of Supreme Court nominations
are rare, a filibuster seems possible in this case
because the political system is unusually polarized.
If McConnell stands by his threat to block Obama
from carrying out his constitutional duty to
nominate someone to the vacant seat, there could be
a standoff until the election. The Democrats are
likely to take back the Senate, and it would fall to
the next president to fill the vacancy. Although
Obama can make a recess appointment until the Senate
resumes on February 22, he is much more likely to
nominate a candidate in due course, and wait for the
Republicans to hoist themselves on their own petard,
knowing that Independents and moderate Republicans
would bridle at such blatant obstructionism.
Marjorie Cohn is a professor at Thomas Jefferson
School of Law and former president of the National
Lawyers Guild.
This article first appeared on Truthout.
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