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The Supreme Court without Scalia

Abortion. Affirmative action. Contraception mandates. Immigration. One person one vote. Public sector labour unions. Each of these remain as matters for the now eight justices of the United States Supreme Court to decide this term.

2004-11-29 09.47.37Many of these would have been the blockbuster end-of-term 5-4 decisions. Many of these were the result of strategic litigation or legislation by conservatives designed to test current Supreme Court doctrine. The four liberal justices of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will very likely remain a clear bloc in these. Of the remaining conservative justices, Chief Justice John Roberts and particularly Anthony Kennedy would be expected to join the liberal justices on some of these matters, with Clarence Thomas and Samuel Alito unlikely to be with them on any of these. If the court splits 4-4, the decision of the Circuit Court of Appeals stands, with no precedential weight outside of the circuit area. As outlined by Linda Hirshman in December, because of the composition of the circuit courts of appeals, this will tend to favour the liberals. But let us consider each of these major cases in detail.

Therefore, the unexpected death of Antonin Scalia will have quite an effect on each of these, if we take Senate Republicans at their word, that they will not support any successor proposed by Barack Obama.

Abortion: Whole Woman’s Health v Hellerstedt

Abortion restrictions in the United States are currently subject to the “undue burden” test of Planned Parenthood v Casey (1992), a plurality opinion jointly written by Anthony Kennedy, Sandra Day O’Connor and David Souter. The court upheld provisions of a Pennsylvania law requiring a 24-hour waiting period, parental consent, a restrictive definition of medical emergency, and reporting requirements for abortion services. They held that requiring spousal notice of an abortion was such an undue burden.

In 2013, Texas passed HB2 which required abortion providers to have admitting privileges at a hospital within 30 miles, and imposes the standards similar to surgical centres. A stay has been placed on the full implementation of the law, and if implemented, it is expected to reduce the number of abortion clinics in Texas from 42 in 2013 to nine. The Fifth Circuit has upheld the law as satisfying the “undue burden” test.

On 6 March, the Supreme Court will hear argument. I would have expected the law to have been affirmed by a 5-4 vote, granting such restrictions precedential value across the United States. However, if instead the decision of the Fifth Circuit is affirmed by an equally divided court, the decision will apply only within the Fifth Circuit states of Texas, Louisiana and Mississippi.

Affirmative Action: Fisher v University of Texas

Race-based affirmative action plans for university admissions are governed by rules of strict scrutiny, most recently considered in Grutter v Bollinger (2003), in a 5-4 decision by Sandra Day O’Connor, where diversity was held to be sufficient grounds for consideration of race in a system that gave sufficient weight to each individual application, rather than using any race quota. Dissenting were then Chief Justice William Rehnquist, and Justices Scalia, Kennedy and Thomas. Rehnquist’s successor as Chief Justice wrote in Parents Involved v Seattle School District (2007), striking down a school integration program, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”.

There were then expected to be five clear votes to strike down the consideration of race in the University of Texas plan when Fisher v University of Texas when it was first argued in October 2012. However, the court sent it back to the Fifth Circuit for further consideration. The Fifth Circuit found in the University’s favour, and it was back in front of the Supreme Court in December 2015, during which Scalia caused controversy in putting to counsel for University, “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well”.

A twist in this case is that Elena Kagan has recused herself, as she had been Solicitor General when the United States submitted an amicus brief for the University. Therefore I expect this to be decided by 4 votes to 3 in favour of the applicant, and ruling against any consideration of race in state university admissions across the US.

Contraception mandates: Zubik v Burwell

In Burwell v Hobby Lobby Stores, Inc. (2014), the court ruled in 5-4 decision that closely-held for profit corporations could not be compelled to provide coverage for contraception in health insurance under the Affordable Care Act (ACA), as it constituted a substantial burden under the Religious Freedom Restoration Act.

Now in a similar case, a number of religious employers are contesting the method within the ACA which requires them to facilitate the provision of insurance coverage of contraception. The appellate courts held that the religious organizations were unable to show that the contraceptive mandate substantially burdened the exercise of their religious freedom. The cases of Zubik v Burwell, Priests for Life v Burwell, Southern Nazarene University v Burwell, Geneva College v Burwell, Roman Catholic Archbishop of Washington v Burwell, East Texas Baptist University v Burwell and Little Sisters of the Poor Home for the Aged v Burwell have been consolidated for hearing on 23 March.

Though not directly on point, I would have expected the justices to vote similarly to their decision in Hobby Lobby. In the absence of Scalia, with an equally divided court affirming the lower courts, the contraceptive insurance scheme would continue to operate, but with varying justification based in the various Circuit Court of Appeals jurisdictions where these cases originated.

Immigration: United States v Texas

In November 2015, the Fifth Circuit found provisions of the Deferred Action for Parents of Americans (DAPA) executive program to be unconstitutional. This program allowed certain undocumented immigrants who were parents of US citizens to avoid deportation.

This is less easy to find a direct analogy or precedent for. Should it be Arizona v United States (2012), where the court found against Arizona’s restrictive immigration laws by 5-3, on the basis that it violated the powers of Congress? Conservatives would argue that it was the Obama administration’s executive action that is violating the powers of Congress in the case of the DAPA. Maybe we should look to a case on executive power like NLRB v Noel Canning, where by 9-0, the Court restricted the use of recess appointments.

In any case, this will be the most awkward of these cases to deal with if there’s an equally divided court, as it concerns the implementation of a nationwide executive action.

One person one vote: Evenwel v Abbott

In Reynolds v Sims (1964), the Court ruled that districts in state legislatures should be roughly equal in population on the principle of “one person one vote”. What is is not clear from this opinion is whether the numeration of persons should include all residents or only voters. This has been interpreted to date to refer to all residents. However, in this case based in Texas (incidentally, originating from the same legal firm as Fisher v University of Texas above), the applicants are arguing that it should be based on voters only.

The Fifth Circuit upheld the traditional interpretation of counting all residents for the purposes of districting, and at oral argument, the United States supported this position; the state of Texas argued an intermediate position that they should be permitted to choose either method of calculation.

With the four liberal justices near certainties to uphold the Fifth Circuit, it will be stand, and I’d expect John Roberts and or Anthony Kennedy to support them. It might only be Clarence Thomas who fully supports the applicants’ position in this case.

Public sector labour unions: Friedrichs v California Teachers Association

In Abood v Detroit Board of Education (1977), the Supreme Court upheld a requirement of payment for collective bargaining in a public workplace. In Harris v Quinn (2014), in a 5-4 decision prohibiting collection of union dues from agency workers, Samuel Alito effectively invited a challenge to Abood.

In the case argued last month, Rebecca Friedrichs, an Orange County elementary teacher, is one of ten teachers who are resisting paying agency fees. The votes would almost certainly fall on the same basis as in Harris, and with all nine justices, it would have changed the nature of public sector industrial relations across the country, as many employees would opt out of payments.

With an equally divided court, the Ninth Circuit decision would stand, allowing public sector unions live to fight another day.

Affirming, or reargument?

In the course of the research on these cases, I found that Tom Golstein of SCOTUSblog reassessed the view that the court would simply defer to the lower court in the case of a tie, proposing that a reargument might be more likely. Goldstein himself had considered these cases, and this analysis remains relevant, as the approach of the court is as yet unknown, and may depend on the extent and effect of such a decision.

The Court and the 2016 presidential election

What is certain is that the vacancy, and the range of the high-profile cases to be considered in the next few months, will compel a focus on the court among all presidential campaigns between now and November. This will particularly be so if the vacancy remains right through the November election, and voters will consider those contemporaries of Antonin Scalia: Anthony Kennedy, who is also 79, Ruth Bader Ginsburg who is 82, and Stephen Breyer who is 77. If a number of these retire, with the court supreme currently finely ideologically balanced, the next president will have considerable say in shaping court for decades to come.

Or maybe not, as many of them seem determined to carry on as long as they capable: Ginsburg seems to relish her position as leader of the liberal minority since John Paul Stevens’s retirement in 2010, at the age of 90, as she referenced recently when asked if she planned to retire soon.

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