On The Docket, In Limbo: Scalia's Death Casts Uncertainty On Key Cases

Antonin Scalia's death leaves a void in many ways, but the most immediate effect will be on the outcome of several major cases pending before the Supreme Court.

Scalia's absence means some of these cases may result in 4-4 tie votes in the weeks and months just ahead. In that event, the rulings made by lower courts will be allowed to stand. Court observers have been scrambling to assess which of the pending cases in the current term were most likely to wind up in ties.

These include cases that test abortion-access restrictions in Texas; the right of public employee unions to collect mandatory dues; two cases of conflicting rights involving religious liberty; the means by which population is defined for political purposes; and the legal enforceability of President Obama's executive actions broadening a program of deferred deportations for certain immigrants.

Most Supreme Court cases are not decided by the minimum majority of 5-4. But many of the most significant cases in recent years have come down that way. That includes recent landmark cases invalidating parts of the Voting Rights Act and weakening campaign finance laws. In those cases, Scalia's vote was crucial to the victory of the court's conservative bloc.

Now, with Scalia gone, any case in which his vote would have been decisive will be left in stalemate, and the last ruling by a lower court will remain in force. Usually, that lower court in question will have been one of the 13 federal circuit courts of appeal. It will be as if the Supreme Court had simply allowed the appeals court ruling to stand and never taken the case in the first place.

In any and all cases where the court is stuck at 4-4, the decision by the lower court will stand but will not have precedent-setting value, meaning it will not apply nationwide and the Supreme Court may return to the issue later when it has a full complement of justices.

The issue of restoring a full Supreme Court may well be open for some time. Although the president has said he intends to honor his constitutional obligation to fill the vacancy as soon as possible, the political reality is that he needs some cooperation from the Senate. Key Republicans quickly made clear over the weekend that there would be little of that.

As a practical matter, that would mean a short-handed court, not only for the remainder of this term but also for the next term, which begins in October and would be nearing its end before the next president's nominee could be confirmed and seated.

Scalia's vote to freeze enforcement of President Obama's orders reducing greenhouse gas emissions from power plants, announced on Feb. 9, will stand because that 5-4 order had already been issued. The court said the Obama administration could not enforce the plan until all legal challenges had been resolved. A short-handed court in the months ahead could elevate the importance of the decision on that issue by the D.C. Circuit Court of Appeals, which is expected to rule before summer.

But Scalia will not have a vote in cases that have yet to be argued in the current term. Nor will his vote count in undecided cases that have been argued in court and subjected to a first vote by the justices in conference. Even though Scalia participated in such hearings and conferences, his vote is now considered void.

The big cases still hanging fire in this court term include these major and far-reaching controversies:

Friedrichs v. California Teachers Association

The conflict here goes to the heart of public employee unions' power and viability. Earlier court decisions had said the unions could not require members to pay dues to support a union's political activities. But the plaintiffs in this case say in essence that all of the unions' activities are political, including the negotiations for wage rates and working conditions. The unions argue individuals should not be allowed to opt out of dues and still be "free riders" who enjoy the benefits of the contract. Scalia had been open to that argument in the past but in this term seemed less so.

Zubik v. Burwell

Under the Affordable Care Act, employers offering health care plans must include contraceptive coverage. Churches and other religious organizations were exempt, but other religious non-profits such as schools have wanted to be exempt too and sued to get it in the Hobby Lobby case. The plaintiffs here object to participating in any way with the contraceptive-related provisions of the law, even to use the work-around provisions provided for them, saying it would violate their rights under the Religious Freedom Restoration Act. Seven different circuit courts of appeals have ruled in favor of the government on this issue, but the Supreme Court took it for review. If the lack of Scalia's vote ties this decision at 4-4, the lower courts' rulings will prevail.

Whole Woman's Health v. Hellerstedt

Next month the justices are scheduled to hear a case testing the standard of "undue burden" by which state-imposed restrictions on abortion have been adjudicated since a 1992 decision by the Supreme Court of that time. At issue is the recent Texas state law requiring any abortion facility to meet standards tantamount to those of a hospital, and requiring the doctors to have admitting privileges at a hospital within close proximity. These conditions have already forced many abortion clinics in the state to close.

Scalia was expected to vote to uphold the Texas law. But this is a case where his absence may not make a difference. If swing-voter Anthony Kennedy joined the court's liberal bloc and voted to strike down the provision, Scalia's vote would have been among the four on the losing side in any event. On the other hand, if Kennedy votes with the conservatives, they can still prevail even without Scalia. That is because the resulting 4-4 tie would allow the lower court ruling in favor of the Texas restrictions to stand.

Trinity Lutheran Church of Columbia, Inc. v. Pauley

Is it fair to say that separation of church and state prohibits a church receiving a state grant for a recycling program? The Lutheran church in Missouri in this case wanted to use the grant for a children's playground surface made from recycled tires. This case is seen as having larger implications for voucher programs and the sharing of state money with religious schools if state legislators choose to allow it. Scalia was often a vote in favor of religious institutions and the exercise of rights of religious liberty and the generous interpretation of those rights.

United States v. Texas

President Obama's executive actions to extend "deferred deportation" to more immigrants now in the country illegally was immediately controversial when issued late in 2014. A federal district judge in Texas said the order violated the Administrative Procedure Act, and a three-judge panel of the 5th Circuit Court upheld that ruling. The White House supported having this decision go straight to the Supreme Court rather than be reviewed by the entire 5th Circuit Court.

The decision here could affect five million or more people now in the country without legal status (or with uncertain status) whose immediate family members do have legal residency. It is scheduled to be heard by the court in April. However, it is possible Scalia's absence will not be critical here, as he was not expected to provide one of the five votes Obama will need to prevail. If the vote is 4-4, the 5th Circuit decision will stand. It would not, however, have the same power of precedent regarding presidential authority that a definitive ruling by a majority of the justices would have.

Evenwel v. Abbott

This case turns on the question of what the Constitution and the Supreme Court may have meant when they referred to the "population" of a state or district. For generations, that term has been generally taken to mean the number of human beings living in that state or district — as counted or estimated by the U.S. Census Bureau. In its landmark "one person, one vote" decision in 1964, the Supreme Court ordered equalized populations in districts electing legislators, but did not precisely define population. Did the court mean people, or just eligible voters? Two plaintiffs in this case from Texas say their rights to equal representation were diluted, because the state counted everyone — not just eligible voters. So, they argue, the eligible voters in some districts are more powerful than in others.

Fisher v. University of Texas at Austin (Fisher II)

The University of Texas at Austin admits most of its freshman class by taking anyone from the top 10 percent of a Texas high school graduating class. But it also reserves space for others with other things to offer, including racial diversity. The 5th Circuit Court of Appeals has twice endorsed this plan, but the Supreme Court has had its doubts and sent the matter back for further review under the "equal protection" clause of the 14th Amendment. Scalia was expected to be part of a five-vote majority ruling against UT on this one, but this is a special case. That is because a 4-4 vote here is not possible. Justice Elana Kagan recused herself from deliberation (she had worked on the case prior to joining the court), so the conservatives may still prevail 4-3.

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