This Supreme Court term was already set to be a blockbuster and consequential. Justices are considering a major challenge to public sector unions, a race-conscious admissions plan at the University of Texas, the first big abortion case since 2007, challenges to voting rights, the Affordable Care Act’s contraceptive mandate and a challenge to President Barack Obama’s immigration actions.
Although in some of the cases, the late Justice Antonin Scalia probably indicated to his colleagues in conference which way he was going to vote, those preliminary votes aren’t binding and are now void.
Scalia’s sudden death over the weekend at a Texas desert resort means the court is facing a new challenge: the loss of its main conservative voice.
“The entire tenor of this term has now changed,” said Stephen Vladeck a CNN contributor and a law professor at American University Washington College of Law. “The court can try to go ahead, but on cases where they are split 4-4 , their only options are to leave the lower court decision intact or to hold the case over until Justice Scalia’s replacement is confirmed.”
If the court is equally divided in a case, ruling 4-4, it means the lower court opinion stands and there is no precedent set by the Supreme Court.
That could have a major impact this term, for example, in the labor union case the court is deciding. At issue there is whether non members of a public sector union can be compelled to pay fees for collective bargaining.
If the court were to rule with the challengers it could severely weaken labor coffers at a time when unions in general are in decline.
A lower court ruled in favor of the unions. After oral arguments, court watchers believed that the Court might be poised to reverse that decision. It was expected that Justice Anthony Kennedy might join the conservatives in a 5-4 vote.
With Scalia’s death, that case might well now turn out to be 4-4. That means the lower court decision that ruled in favor of the unions would stand.
Abortion
On abortion, next month, justices will hear a case challenging parts of a Texas abortion law that requires that doctors who perform abortions have admitting privileges at a nearby hospital and mandates that clinics upgrade their facilities to hospital-like standards.
Abortion rights supporters say the law is one of the strictest in the nation and that if the Supreme Court agrees with a lower court’s decision and allows two provisions of the law to go into effect, the number of available clinics in the state is expected to fall to about 10.
The lower court allowed the Texas law to remain. Kennedy will be key here. If he votes with the liberals, it’s likely a 5-3 decision to overturn. If he votes with the conservatives it could be 4-4 which would mean the Texas law could stand.
One person, one vote
Scalia’s death might also impact a voting redistricting case challenging the “one person, one vote” doctrine in a dispute that could change the way that states draw their legislative lines. In that case the challengers prevailed in the lower court.
The principle dating back to 1960s is that state legislative districts must be drawn so they are equal in population. But justices never explicitly answered whether the doctrine applies to the general population or the voting population.
Civil rights groups are watching the case carefully, fearful that if the court rules with the plaintiffs, it could potentially shift power from urban areas — districts that tend to include a higher percentage of individuals not eligible to vote such as non-citizens, released felons and children — to rural areas that are more likely to favor Republicans.
Immigration and Obamacare
On immigration, the court will consider whether President Barack Obama’s executive actions on immigration should survive.
Texas and 25 other states are challenging the programs that would allow millions of undocumented immigrants to apply for programs that could make them eligible for work authorization and some associated benefits. Lower courts have so far sided with Texas and temporarily frozen the programs from going into effect. The 8-person court means the administration would need to turn Kennedy or Chief Justice John Roberts to win.
The most complicated case could be the lawsuit challenging the Obamacare contraception mandate.
This case is a challenge from religious nonprofit groups, including the Little Sisters of the Poor, to requirement that demands group health plans provide a full range of contraceptive coverage to women at no cost. The issue here is that unlike the other cases, this case came out of multiple circuits that didn’t all rule the same way.
A 4-4 decision wouldn’t be decisive at all, making this a likely candidate for the court to hold over.
In the coming weeks, the court could signal that it was going to “hold over” some cases that might be 4-4 but it would be more likely the justices would do that if they thought there would be a new justice confirmed in the short term.