The entire current legal strategy of the conservative legal movement has been stymied by the death of Justice Antonin Scalia. His unexpected passing robs conservatives of the 5-4 advantage they had on the Supreme Court at the very moment they were making arguably their most aggressive play yet to cement some their most cherished and longest sought legal gains, in areas like abortion, voting rights, and affirmative action.
While much of the immediate focus after Scalia’s death over the weekend was on the long game of who replaces him, and when, the impact is far more immediate and potentially historic. Even if a Republican president ultimately names Scalia’s successor, the conservative legal movement will have suffered a dramatic setback by virtue of how many important cases it had queued up for this year that will be thrown into turmoil by a court with only eight justices and the potential for 4-4 tie votes.
With a number of high-stakes cases at or heading towards the Supreme Court, conservative legal advocates face a situation where they are unlikely to get the sweeping decisions they were hoping for, especially in the cases specifically designed to roll back progressive policies. Even any favorable outcomes in some of the test cases they lined up for the high court are now in jeopardy.
“Clearly, on a lot of these issues, they’ve been using the First Amendment particularly as a sword that hasn’t been seen previously to push a conservative agenda,” William Marshall, a law professor at the University of North Carolina, told TPM. “Without Justice Scalia, the chances that they’re going to succeed in the way that they had on some of these cases certainly becomes a lot less.”
Scalia’s death came as the Supreme Court’s critics have been consistently accusing its conservative majority of judicial overreach, pointing to a pattern in which a right-leaning justice sends a hint that the court is ready to take a case targeting some particular precedent, which in turn prompts legal activists to rush to get a case like that to the court’s doorstep. Legislators in red states have meanwhile pushed the envelope in legislation — with, for example, laws that restrict abortion access and voting rights — on the assumption they’d face friendly terrain if challenges to the laws made it to the Supreme Court. That advantage is no longer a given. A split decision doesn’t give conservatives the types of wins they were betting on, blunting the effect of some of the cases liberals were fearing most this term.
“A 4-4 decision would not set a precedent and would result in basically a split decision that would basically allow the lower court ruling, whatever it was, to stand,” Adam Winkler, a constitutional law professor at UCLA, told TPM in the hours after Scalia’s death was reported.
It is reasonable to believe, then, that the Supreme Court will try to avoid a 4-4 split when it can by getting a majority of the eight justices to agree on some sort of a comprise that either makes a decision that is narrower, takes a more moderate course or sends the case back down to the lower court for further consideration. Chief Justice John Roberts can also opt to have certain cases reargued once a ninth justice is confirmed, though the calculus for that route is complicated by Senate Republicans’ vow to delay any nominations until after the 2017 inauguration.
The upshot is that the monumental changes conservatives were hoping the court to make this term are far less likely.
“Chief Justice Roberts is as about good an institutionalist as we could have running the court right now on these issues. He cares very deeply about both his legacy and about the institution of the court while it is under duress,” said Nathaniel Persily, a Stanford Law professor, in an interview with TPM. “He is not going to see this as an opportunity for ideological gaming. I think he recognizes how serious of a situation this is for the court and for the perception of the court in this country, so he is going to work with the justices to provide a sort of consensus route on how to deal with the current confusion.”
Here are how some of the court’s most politically charged cases that stand to be affected by Scalia’s death:
Unions (Friedrichs v. California Teachers Association )
A case attacking unions is perhaps the most clear-cut example of how the conservative movement has attempted to exploit the court’s make-up, and how that effort could now backfire with Scalia’s death.
The challengers, who were recruited by a conservative advocacy firm, are objecting to what’s known as “agency fees” imposed by public unions on workers — and not just members — who benefit from collective bargaining. Justice Samuel Alito had signaled in recent cases that the court was prepared to reverse its own precedent, on First Amendment grounds.
The five conservatives looked ready to strike down the fee structure, and thus cripple the ability of unions to raise money, at the case’s oral arguments last month. But without Scalia’s vote, a 4-4 split would defer to the appeals court decision, which ruled in favor of the unions based on the previous Supreme Court precedent that approved these types of fees.
In a stroke of irony, the conservative challengers had asked the lower courts to rule against them in order to speed the case along to the Supreme Court level.
One Person, One Vote (Evenwel v. Abbott)
What the court was planning to do in a major voting rights case was murkier, but the absence of Scalia’s vote nonetheless works in the favor of those who are fighting the conservative challenge to how voting districts are drawn.
Evenwel was pulled together by Edward Blum, a conservative legal advocate whose resume includes spearheading recent Supreme Court cases that gutted the Voting Rights Act and took swipes at affirmative action. The challengers objected to a Texas redistricting plan and argued for an interpretation of the “one person, one vote” principle that would fundamentally change the way districts were drawn to the detriment of minorities and urban voters.
It’s hard to know whether the conservative justices were going to issue the kind of sweeping ruling the challengers were asking them for. But the leverage the four liberals now have almost guarantees that court will be unable to depart significantly from the longstanding legal parameters for drawing districts and instead it might offer a narrow ruling. If the court does split 4-4, its ruling will have no precedent beyond the Texas plan, which was upheld by the lower court.
Affirmative Action (Fisher v. University of Texas-Austin)
Blum has another case at the Supreme Court awaiting a decision. Fisher asked the court to knock down the University of Texas’ affirmative action program, after Blum failed to land a lethal blow on affirmative action policies in previous cases.
Justice Elena Kagan had already recused herself from the case, which heard oral arguments in December. So a 4-4 split was looming before Scalia’s death. Now with seven justices, the pendulum swings back over to the conservatives’ side. However, having only seven justices also gives the court more reason to punt on the case — either by sending it back down to a lower court for further work or rehearing it once Scalia is replaced — or find some other compromise route supported by the court’s liberals.
“The court may not want to issue a decision like that with seven justices that’s truly going to be a monumental ruling,” Marshall said. “So the court may be more reluctant under these circumstances, even when there is a majority, to exercise its authority in a way that creates the same kind of precedential effect as it might when there’s a full conference of justices.”
Climate change (West Virginia v. EPA)
The Supreme Court voted to temporarily block President Obama’s climate plan last week in a 5-4 order that would not have stood had it been considered a few days later. Nevertheless, Scalia’s death spells trouble for the states and coal industry forces pushing the case. This summer it will be heard by a left-leaning panel of the D.C. Circuit that is likely to rule in Obama’s favor. The challengers could then appeal to the full appeals court, but they no longer have the five Supreme Court votes they were counting on if and when the case eventually made its way there.
Immigration (United States v. Texas)
An appeals court already ruled against President Obama’s executive actions to protect certain undocumented immigrants from deportation, meaning a 4-4 Supreme Court decision would still be bad for the U.S. government. But without Scalia’s vote going forward, there are some silver linings for the Obama administration.
For one, if there is a split decision, there may be a route for a parallel case to come up in another circuit, since that one wouldn’t set a national precedent.
“My guess is the government is going to try to figure out away to not let that case just die on the vine of a 4-4 decision,” Marshall said.
Additionally, it will be harder without Scalia for court conservatives to use the case to issue broader limits on the president’s executive authority, as it suggested it might when it added a question about the Constitution’s “Take Care” clause to the scope of the case.
Abortion (Whole Woman’s Health v. Cole)
A case challenging abortion restrictions in Texas is another instance where the lower court’s decision is working in conservatives’ favor in the event of a Supreme Court tie. However, that decision would only apply to Texas and would not set precedent for the states whose abortion restrictions are being challenged in other circuits. Additionally, abortion rights activists were already hoping to woo Justice Anthony Kennedy to their side, and the prospect of a muddled decision may make him more willing to iron out a compromise opinion with the court’s liberals.
Contraceptive Coverage (Zubik v. Burwell)
After their victory in the 2014 Hobby Lobby case, conservative legal advocates, teaming up with religious groups, brought a new challenge to the Obamacare contraceptive mandate, arguing that even filling out a form requesting to be exempt from the mandate was a burden on some employers’ religious rights. The case is styled Zubik v. Burwell, but consolidates several cases, including the better-known challenge from the Catholic religious order Little Sisters of the Poor.
Like the abortion case, a 4-4 decision here wouldn’t apply nationwide and there is already a disagreement among appeals courts on the issue.
“The court is going to find it very awkward to come up 4-4, so some circuits go some way and some circuits go the other way,” Marshall said.
The Supreme Court, thus, will be incentivized to craft a compromise ruling with the liberals or find some other way to punt on the case.