Cases on the docket could alter American life on many issues.
By POLITICO PRO STAFF 02/13/16
Justice Antonin Scalia’s death could change the course of history on the contentious social and legal issues pending before the Supreme Court this term, especially in closely divided cases where he was expected to serve as a lynchpin of a conservative majority.
In cases where the eight remaining justices are evenly divided, appeals court rulings would be left to stand, but no precedent would be set for future cases. The justices could also hold cases and leave stays of lower court rulings in place, while awaiting confirmation of a new justice, but it’s unclear if they would do so for nearly a year if the Senate refuses to consider any nominee while President Barack Obama is in office.
Here are policy areas that hang in the balance:
Abortion
Many Texas abortion clinics could close, an outcome that may have happened anyway with Scalia on the court.
The court next month will hear the most significant abortion case since 1992, when the justices ruled states could legally impose restrictions on abortion that did not put an “undue burden” on access to the procedure. This term’s abortion case, which centers on restrictions Texas placed on providers and clinics, will again test how far states can go to limit abortion.
The court is expected to be divided along familiar partisan lines, with Justice Anthony Kennedy serving as a possible swing vote. A 4-4 decision in the case, Whole Woman’s Health v. Cole, would leave in place a lower court ruling that upheld the restrictions on clinics.
Health care
Religious nonprofits, including charities, schools, colleges and hospitals, may have to live with the decisions of seven appeals courts, which ruled against their challenge to the Affordable Care Act’s contraceptive mandate.
The plaintiffs in Zubik v. Burwell, including the Roman Catholic Archdiocese of Washington and the Little Sisters of the Poor, argue that both the law’s requirement that employers provide female employees with health insurance that includes no-cost access to certain forms of birth control — and the government’s work-around set up for religious nonprofits — violate their religious freedom.
Appeals courts decided the cases against them largely because the administration offered them the work-around the Supreme Court sought in an earlier case, Burwell v. Hobby Lobby, in 2014. 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 come to be known as Obamacare.
Unions
Public sector-unions may get a reprieve.
Until Saturday, unions for state and local government employees were bracing themselves for what appeared an all-but-certain 5-4 ruling against them in Friedrichs v. California Teachers Association, a case challenging the legality of “fair share” fees that the unions charge nonmembers to cover costs associated with collective bargaining. In effect, government employee unions were looking at a court-imposed “right-to-work” regime.
Scalia was the swing vote in the case, given his prior support for fair-share fees. But in court arguments last month Scalia’s line of questioning left the strong impression that his sympathies had swung to the plaintiffs’ side, giving them a likely 5-4 majority. With Scalia’s death, the court is now likely to split 4-4, thereby affirming the Ninth Circuit’s previous decision against the plaintiffs and in favor of fair share fees.
Affirmative action:
The use of affirmative action in college admissions could survive a challenge.
In Fisher v. University of Texas, Justice Elena Kagan had recused herself, introducing the possibility of a 4-4 outcome that would have no wide effect. A lower court has upheld the university’s use of race as a factor in admissions.
During oral arguments in December, Scalia angered some with his echoing of a conservative critique of affirmative action: that it shortchanges minorities by putting them into an environment where they cannot perform as well as other students.
“There are those who contend [such programs] do not benefit African-Americans,” he said, adding that “blacks” may do better at “less-advanced, slower-track schools.”
Separation of church and state
Religious schools could continue to be denied publicly funded grants.
Last month, the nation’s highest court agreed to hear a case about whether the separation of church and state really meant it was unconstitutional for a Lutheran church preschool in Missouri to be denied state grant money for recycled tire material to make its playground safer.
The case, Trinity Lutheran Church of Columbia v. Pauley has the potential to affect several states, where such Blaine amendments have been the legal argument for preventing school voucher programs that send tax dollars to private, religious schools.
Colorado struck down a local voucher program last year on those grounds, as has the Florida Supreme Court. Scalia, along with Justices Clarence Thomas, Samuel Alito, John Roberts and Anthony Kennedy had indicated a willingness to accept the argument that banning state lawmakers from funding religious schools, if a democratic majority wants to, would impede the free exercise of religion.
Climate change
Obama’s Clean Power Plan could be in the hands of the D.C. Circuit Court.
One of Scalia’s last official acts as a justice was to deliver a large dent in Obama’s climate legacy, providing one of five votes to stay the Clean Power Plan, which regulates carbon emissions from power plants. The decision could set back implementation of the rule by years. A 4-4 ideological split on the Supreme Court raises the stakes for the more liberal D.C. Circuit’s eventual decision on the Clean Power Plan, though the high court would still have to lift its stay if the rule is upheld.
Immigration
Scalia’s death might not have a big impact on one of the most significant cases the court has agreed to take up: a challenge to Obama’s latest round of executive actions on immigration. That case is expected to be argued in April.
Five votes will be needed to sustain Obama’s moves to use executive branch authority to allow up to five million more immigrants to apply for quasi-legal status and work permits. The court’s Democratic appointees are expected to back his move. If the administration can win the vote of Justice Anthony Kennedy or Chief Justice John Roberts, Obama will be able to move forward with his actions before leaving office. If not, the program will remain blocked.
However, Scalia’s absence from the court would likely prevent a definitive, precedential ruling against presidential authority to make moves similar to Obama’s. A similar effort by a future president could be re-litigated, presumably reaching the court once Scalia’s replacement is in place.
____________________________________
— With contributions from Carol Eisenberg, Josh Gerstein, Alex Guillen, Brian Mahoney, Jason Millman and Nirvi Shah