How Scalia’s Absence Is Affecting This Supreme Court Term

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Senate Democrats Call For Confirmation Hearing For Supreme Court Nominee
Senate Democrats called on Republicans to consider Judge Merrick Garland, but they're not holding their breath.Photo: Chip Somodevilla/2016 Getty Images

With Senate Republicans vowing that they won’t even consider President Obama’s generally inoffensive nominee to replace the late Supreme Court Justice Antonin Scalia, it looks like the Court will be down a justice through this term, and well into the next. That’s sparked concerns about how the Court will function for so long without a tie-breaking ninth member, but the justices insist it’s not a big issue. Justice Samuel Alito said, “We’ll deal with it,” and Breyer noted that only a small number of cases come down to one vote anyway.

It’s true that having eight justices decide a case isn’t all that uncommon. According to a CNBC analysis, temporary vacancies or recusals have led to ties in nearly one-in-five decisions passed down since 1946. But Scalia’s absence is still likely to have an interesting effect on the current court term, beyond Justice Clarence Thomas developing the courage to speak for the first time in a decade.

When the Supreme Court hands down an evenly split ruling, the lower court’s decision stands, and no nationwide precedent is established. So, for instance, while the Obergefell v. Hodges ruling made same-sex marriage legal nationwide, not just in the handful of states where the plaintiffs reside, any 4-4 decisions will only apply in the lower court’s jurisdiction.

This week, the court handed down its first 4-4 decision since Scalia’s death, with the one-line opinion, “The judgment is affirmed by an equally divided Court.” That case wasn’t very significant, but the Court is hearing arguments in a number of cases where a 4-4 decision could have huge implications. Here’s where they stand so far:

UNIONS FEES
When the Court heard Friedrichs v. California Teachers Association back in January, it seemed very likely that it would side with conservatives, agreeing with the plaintiffs’ argument that requiring nonunion employees to pay union dues violates the First Amendment. While unions can’t charge nonmembers for their political activities, 23 states and the District of Columbia use a “fair-share” or “agency fee” system, which requires public employees to pay for the cost of union activities like collective bargaining (thus preventing nonmembers from “free riding” by reaping the benefits of the union’s activities without paying any fees).

As SCOTUSblog explains, during oral arguments, Justice Scalia asked why eliminating fair-share fees would kill public-employee unions when federal employees “prosper,” though they don’t charge fair-share fees, and Justice Kennedy downplayed the “free rider” problem. In another bad sign for unions, the liberal justices focused on a legal doctrine not related to the merits of the case, suggesting they knew they wouldn’t win.

A conservative decision would have gutted public-sector unions, but without Scalia’s vote, the case is likely to end in a split decision. Union advocates won the case in the liberal-leaning U.S. Court of Appeals for the Ninth Circuit, so now the current system is expected to remain in place.

ABORTION
Earlier this month, the court heard arguments in Whole Woman’s Health v. Hellerstedt, the biggest reproductive-rights case since 1992. The case focuses on whether it’s legal for Texas to impose strict regulations on abortion clinics, such as requiring abortion providers to have hospital-admitting privileges and the clinics to meet the building requirements of ambulatory-surgical centers. If the decision is upheld, 34 of Texas’s 40 abortion clinics would be forced to shut down.

Justice Anthony Kennedy’s vote is the key, but Scalia’s absence may determine how the decision affects other states. Dozens of state legislatures have adopted similar rules, ostensibly to protect women’s health, though critics say their real goal is to shut as many abortion clinics as possible. If Kennedy votes with the liberals, the 5-3 decision will allow the Texas clinics to remain open, and set a precedent for what rules other states can impose. If there’s a 4-4 decision, then the lower court’s ruling permitting the law would stand, but no precedent would be established. Clinics in Texas would be forced to close, but the issue would remain unsettled in other states.

During oral arguments, Kennedy asked about the rule that states cannot put an “undue burden” on women seeking an abortion, which he helped establish in a 1992 ruling, but his questions didn’t offer many hints about which way he’s leaning.

BIRTH CONTROL COVERAGE
On Wednesday, the court heard arguments in Zubik v. Burwell, a follow-up to the 2014 Hobby Lobby case, in which the Supreme Court ruled that private businesses could be exempted from the Affordable Care Act’s requirement that employers provide health insurance that covers birth control. In response, the Obama administration came up with a compromise that allows organizations with religious objections to opt out of the mandate and let the government arrange for contraceptive coverage with the insurance company directly.

Little Sisters of the Poor and other religious groups argue even that workaround makes them complicit in providing contraception to their employees. Eight lower courts disagreed, but the Eighth Circuit Court of Appeals said the law puts a “substantial burden on their religious exercise.”

A split decision in the case appears likely, as Kennedy commented that it sounded like the government was “hijacking” the religious groups’ insurance plans. If the justices deadlock, the lower-court rulings will stand, and the law will be applied differently depending on where each organization is located.

IMMIGRATION
Next month, the court is set to hear United States v. Texas, which involves a Texas judge blocking President Obama’s 2014 executive action allowing certain undocumented immigrants to apply to stay in the country legally. Texas, along with 25 other states, sued to block the decision and, in November, the Fifth Circuit Court of Appeals ruled that the Obama administration could not move forward with the plan, as the states’ efforts were likely to succeed.

The Supreme Court is being asked to weigh in on several issues, including whether states have the right to sue the federal government over how it enforces the law, and whether the plan involves an overreach by President Obama. If Kennedy sides with the liberal justices, the Obama administration could begin implementing the plan. According to The Wall Street Journal, a split decision could leave the policy “blocked, at least in the three states under the Fifth Circuit — Louisiana, Mississippi and Texas — but possibly in force elsewhere.”

The Court does not tend to like issuing 4-4 decisions, and the justices may avoid taking cases they believe will end in a split decision. “They’re not going to want to take up issues that are extremely divisive if they don’t have a full complement of the court,” Jeffrey Wall, an appellate lawyer at Sullivan & Cromwell LLP and former law clerk to Justice Clarence Thomas, told Bloomberg Politics. Four justices must agree to take up a case.

Another option, which SCOTUSblog’s Tom Goldstein thinks is likely, is that the court will order that the most controversial cases be reargued after another justice is finally confirmed. Until then, the potentially chaotic situation created by a 4-4 decision would stand. The court may be equipped to “deal with” an even number of justices, but it’s certainly not ideal.