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Supreme Court Leans Left in the Wake of Antonin Scalia’s Death

Posted on Jun 29, 2016

  The Roberts Court in 2010. Back row (left to right): Sonia Sotomayor, Stephen Breyer, Samuel Alito and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy and Ruth Bader Ginsburg. (Steve Petteway / Collection of the Supreme Court)

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The Supreme Court’s just-completed October 2015 term was supposed to mark a dramatic comeback for the tribunal’s once-dominant contingent of five conservative justices.

After taking it on the chin in the previous term on a variety of hot-button issues, including same-sex marriage, the legality of Obamacare’s income-tax credits and racial discrimination under the Fair Housing Act, conservatives were thought to have a 5-4 voting advantage on a slew of new politically charged cases this time around.

With the panel’s resident firebrand—Justice Antonin Scalia—leading the charge, the big question was whether the court’s right flank would hold together as it tackled new appeals on affirmative action, public-employee unions, Obamacare’s contraception mandate, presidential powers over deportation policy and abortion rights.

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But before any of the most controversial decisions were rendered, Scalia died in his sleep in February while on a hunting vacation. His passing was without question a defining moment, and a historical watershed. Combined with the Senate’s refusal to hold hearings on the president’s nomination of a successor—District of Columbia Circuit Court Judge Merrick Garland—Scalia’s demise left the court in a potentially crippling 4-4 ideological stalemate.

From a judicial standpoint, stalemate is rarely a good thing, especially in the halls of the nation’s most powerful legal body, which is tasked with providing the final answers to the most pressing questions of constitutional law.

Basically, when the Supreme Court divides evenly in a case, it has three options: It can defer rendering a decision and hold the matter over until it can be reconsidered the following term. It can refrain from issuing a decision on the merits and remand a case back to the lower courts. Or it can issue a one-sentence “per curiam” order, declaring simply that the judgment of the lower court is affirmed—an outcome that establishes no new legal precedent and in effect operates to leave the lower-court ruling intact.

So how did the dynamic of an eight-member court play out sans Scalia? Here’s my scoreboard for the term’s biggest opinions.

The 4-4 Decisions

With Scalia gone, the court issued four evenly split per curiam affirmances. Three came in major cases, two of which resulted in liberal victories and one in a conservative win.

The biggest liberal gain concerned public employee unions and so-called “fair-share” fees in Friedrichs v. California Teachers Association, decided in March. Friedrichs was the third time since 2012 that the court had been asked to determine whether assessing partial fair-share fees in lieu of full dues on nonunion employees to help cover the costs of collective bargaining amounted to coerced speech in violation of the First Amendment.

Given the tenor of the oral argument conducted in January, when Scalia was still alive and irascible as ever, the union seemed poised to sustain a crippling defeat. But in his absence, the panel deadlocked. The association’s victory before the Ninth Circuit was preserved, and the fair-share system and public unionism as a whole averted a massive setback.

Another liberal win was chalked up in Dollar General Corp. v. Mississippi Band of Choctaw Indians, a case argued in December but not decided until late June. Unable to form a majority, the court’s 4-4 tie permitted a Fifth Circuit decision to stand that broke new legal ground, recognizing the authority of a Native American tribal court to hear a civil suit for sexual abuse against a major corporation operating on trial land.

Conservatives, however, picked up a crucial win in United States v. Texas a volatile 26-state challenge to President Barack Obama’s executive actions calling for deferred deportation of the undocumented parents of U.S. citizen children and lawful permanent residents, and the expansion of an earlier program aimed at deferring the deportation of specified classes of undocumented youth. The court’s 4-4 tie effectively reinstated a nationwide federal district court injunction against the executive actions, placing a staggering 5.5 million immigrants at risk of deportation.

The court was also unable to reach a merits decision in another set of high-profile lawsuits dealing with the application of Obamacare’s contraception-coverage mandate to religious nonprofit organizations, colleges and schools. Although not formally expressed as a 4-4 tie, the court punted on the cases and by a unanimous 8-0 vote sent the parties back to the lower courts with instructions to find a way to reach a settlement.

The Liberal Landmarks

Scalia was gone but not forgotten in the two biggest liberal decisions of the term: Fisher v. University of Texas at Austin, on affirmative action, and Whole Woman’s Health v. Hellerstedt, on abortion rights.

Fisher concerned a challenge to the University of Texas’ race-conscious affirmative action plan. The case had been before the panel previously, but in 2013 was sent back to the Fifth Circuit for additional fact-finding, courtesy of a 7-1 majority opinion authored by Justice Anthony Kennedy, with Scalia concurring, and Justice Elena Kagan recusing herself due to prior participation in the litigation while she was solicitor general during Obama’s first term in office.

The case came back to the high court after the Fifth Circuit once again approved the Texas program.

In a second round of oral arguments last December, Scalia viciously attacked the Texas program, famously remarking: “There are those who contend that it [affirmative action] does not benefit African-Americans to … get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a … slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they are being pushed too hard in classes that are too fast for them.”

With Kennedy again writing for a 4-3 majority (Kagan remained on the sideline), the court upheld the Texas plan in a decision released Thursday. In sharp contrast to Scalia, Kennedy celebrated the values of academic diversity in breaking down racial stereotypes and preparing students for an increasingly multicultural economy and society. “Considerable deference,” he wrote, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” It was the first time Kennedy had opted in favor of a race-conscious affirmative-action plan.


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