- Justice Antonin Scalia’s sudden death Saturday flips the dynamics of the Supreme Court and undermines conservative hopes for far-reaching victories on important ...
- Feb 11, 2016 · Scalia’s absence may also hurt the chances for conservatives in cases involving state ... Read Scalia's Death Undercuts Conservative Hopes on ...
- Feb 13, 2016 · ... undercutting conservative hopes of winning ... Scalia's Death Undercuts Conservative Hopes on ... Scalia’s absence may also hurt the chances ...
Scalia’s death flips Supreme Court dynamics, hurts conservative hopes
Flowers lie in front of the Supreme Court building in Washington on Sunday a day after the death of Supreme Court Justice Antonin Scalia. (Carlos Barria/Reuters)Justice Antonin Scalia’s sudden death Saturday flips the dynamics of the Supreme Court and undermines conservative hopes for far-reaching victories on important social controversies such as abortion, immigration and unions.
Regardless of the battle between President Obama and Republican leaders in the Senate over a successor, the absence of Scalia tilts the balance of the current court and could blunt the impact of a term filled with controversies that dominate the nation’s political conversation.
Campaign 2016 Email UpdatesGet the best analysis of the presidential race.And it will affect the next term, as well. If Republicans hold to their pledge not to confirm anyone Obama nominates, it will have a dramatic impact on the cases an eight-member court accepts and decides in the term that begins next October.
Conservatives could still prevail on many of the cases before the court this term, but the wins could come on tie votes that preserve the status quo rather than provide precedents that will shape the future.
On other issues, an evenly divided court would mean upholding lower court victories that liberals were trying to preserve.Washington Post reporter Robert Barnes explains where the Supreme Court stands after the death of Justice Antonin Scalia and how the vacant seat will impact the presidential election. (Whitney Leaming/The Washington Post)
If the court splits 4 to 4 on a case, the ruling simply affirms the decision of the appeals court from which it came, without setting a national precedent.
In some cases, such as whether Obama properly used his powers to shield from deportation millions of illegal immigrants who have long-standing ties to the country, a divided court could doom the president’s chances of implementing the program. That is because a panel of the U.S. Court of Appeals for the 5th Circuit ruled against him.
But Scalia’s absence might restrict the court from making a more far-reaching decision about the president’s powers.
In some cases, a diminished conservative majority might hand unexpected victories to liberals.
The best example of that concerns a battle over public employee union fees that the court considered last month.
At oral argument, the court seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim that their free-speech rights are violated when they are forced to pay dues to the state’s teachers union.
The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.
But the lower court, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united that way too, a 4-to-4 vote would mean that the precedent and union victory would stand.
Scalia’s death could even affect cases not yet teed up for the court’s decision. Last week, the court, on a 5-to-4 vote, stayed implementation of Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.
The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s decision did not address the merits of the challenge but indicates justices think the states have raised serious questions.
The stay was unusual because no court had yet ruled on the legality of the plan. But the U.S. Court of Appeals for the D.C. Circuit will hear the challenge in June. Whichever way it ruled, the question would be whether there would be a reason for a divided Supreme Court to accept the resulting appeal.
Without Scalia, there are four members of the court, all nominated by Republican presidents, who most often vote conservative. They are Chief Justice John G. Roberts Jr. and justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. But Kennedy most often is the justice in the middle, voting with liberals on issues such as the death penalty and gay rights.
The court’s four liberals, all named by Democratic presidents, have had success when they have voted together and lured Kennedy, and occasionally Roberts, to their side. They are justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Here are some of the cases on the current docket that could be affected by Scalia’s absence:
Fisher v. University of Texas at Austin
The Supreme Court in July agreed to consider again whether race-conscious college-admission plans are constitutional. Two years ago, the court voted 7 to 1 to send the University of Texas at Austin’s plan back for further judicial review and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.
That ruling was largely seen as a punt on the part of a deeply divided court: It stopped short of forbidding the consideration of race, significantly altering the court’s prescription of how such programs should operate, or even passing judgment on the UT program at issue.
Upon reconsideration, a panel of the U.S. Court of Appeals for the 5th Circuit once again upheld the program. In a 2-to-1 vote, the panel said it was applying “exacting scrutiny,” but it concluded that UT’s limited consideration of race was “necessary” and narrowly tailored to meet the university’s compelling interest in achieving student-body diversity.
Lawyers opposed to affirmative action and representing Abigail Fisher, a white woman who was denied admission to UT and filed suit in 2008, said the lower court had ignored the Supreme Court’s instructions.
The court already was working with one less justice in this case; Kagan sat it out, presumably because she worked on the issue when she was Obama’s solicitor general. That means only seven justices would decide whether the appeals court was correct to uphold the program.
United States vs. Texas
Obama’s executive action shields from deportation more than 4 million people who are parents of citizens or of lawful permanent residents and allows them to “come out from the shadows” to work legally, as Obama put it when announcing the program in November 2014.
The executive action was put on hold by a panel of the U.S. Court of Appeals for the 5th Circuit. A split court would uphold that decision and keep Obama from implementing it before he leaves office next January. But it might be more difficult to answer broader questions about a president’s powers in such matters.
Arguments are scheduled for April.
Zubik v. Burwell
Also before the court is another challenge to the Affordable Care Act, this time over whether religiously affiliated organizations such as universities, hospitals and charities can be freed from playing any role in providing their employees with contraceptive coverage.
The case pits questions of religious liberty against a woman’s right to equal health-care access, and it will be the fourth time the court has considered some aspect of what has also come to be known as Obamacare.
Seven appeals courts that have decided on the controversy found in favor of the Obama administration. But one did not. Presumably, a split court would mean the law is interpreted differently depending on the region of the country.
Whole Woman’s Health v. Hellerstadt
The Supreme Court next month is set to hear its most consequential abortion case in nearly a quarter-century, agreeing to determine how far states may go in regulating the procedure without violating a woman’s constitutional rights.
The case from Texas could affect women across the nation. Numerous states have enacted restrictions that lawmakers say protect a woman’s health but that abortion providers contend are merely a pretext for making it harder to obtain an abortion or even making the procedure unavailable within a state’s borders.
Abortion providers say full implementation of the Texas law passed in 2013 would reduce from 42 to 10 the number of clinics in the nation’s second-largest state. The court took no action on a case from Mississippi, where a similar law would close the state’s only clinic if it were allowed to proceed. That law was stopped in a lower court.
The outcome of the Texas case will turn on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. It said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.Terri Rupar is The Post's national digital projects editor.end quote from:
Sunday, February 14, 2016
Scalia's death hurts Conservative hopes for this year and beyond
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