Analysis Law and Policy

With No Scalia, What’s Next for the Supreme Court?

Jessica Mason Pieklo

Justice Antonin Scalia's death complicates an already contentious Supreme Court term.

Few personalities loomed as large over U.S. law and politics as Supreme Court Justice Antonin Scalia, the conservative justice who died Saturday at age 79. In addition to making the 2016 presidential race even more interesting, his sudden death complicates a Court term already packed with marquee culture war topics such as abortion, affirmative action, and union rights. So what happens to those cases now that the Court is down a justice, and what does Scalia’s death mean for progressives? A helluva lot.

First, the nitty-gritty details. Yes, the Court can and will still function with only eight justices. The Court needs a quorum of six to hear cases, so even with possible recusals—themselves not that common—the Court’s business should continue. The Court’s term runs until the end of June, and there is plenty of time left in President Obama’s term to have a replacement confirmed. However, given the level of games-playing demonstrated by senators on the Judiciary Committee since the last Supreme Court nomination fight, I wouldn’t be surprised if the Republicans try to run out the clock on a third Obama Court appointment. But let’s not think about that right now.

In terms of the cases the Court has already heard, Justice Scalia’s votes count only in cases that have already been decided, with an opinion released. For cases where the Court has not yet released an opinion, his votes—to the extent they have happened already after written briefings and oral arguments—are void. That’s a big deal for those cases in which Scalia was part of a 5-4 conservative majority. Those include Friedrichs v. California Teachers Association, where the Court was expected to strike yet another blow to organized labor by limiting fair-share fees, which help fund the organizing efforts that benefit all employees, union members or not.

Assuming, as most legal observers have, that the vote in Friedrichs to strike fair-share fees was 5 to 4, Scalia’s death means the Court is now split evenly. In cases when there is no majority for a decision, the lower court decision is affirmed. In Friedrichs, that would mean a win for organized labor and a loss for the Koch brothers, who helped incubate the union challenge. Like I said, it’s a big deal.

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This brings me to one of the Court’s most closely watched cases this term, Whole Woman’s Health v. Hellerstedt, formerly Whole Woman’s Health v. Cole, which the Court will hear in March. As Drexel University School of Law professor David Cohen wrote in this must-read piece on the immediate implications of Scalia’s death on the case, Roe v. Wade is safe, for now. That’s because Scalia’s death makes it impossible for the remaining conservative justices to issue a sweeping opinion, applicable nationwide, that would effectively gut Roe by upholding Texas’ abortion restrictions, which have nearly regulated abortion out of existence in the state.

Should Justice Anthony Kennedy vote with the remaining conservatives and affirm the Fifth Circuit’s decision, the impact would be devastating for Texans as well as those who live in Louisiana and Mississippi, the other states covered by the Fifth Circuit, but that’s as far as the decision could reach. I still think Justice Kennedy is going to vote to strike the restrictions, which means reproductive rights advocates would win 5 to 3; the Texas restrictions and their copycats in Louisiana and Mississippi will likely go down; and those appellate court decisions blocking similar laws in places like Wisconsin and Alabama will stand. Another really big deal.

There is precedent for the Court to order cases affected by Scalia’s absence that end in a tie for rehearing once Scalia’s replacement is confirmed. But it is not entirely clear if that would apply in this instance, in part because nobody knows how long it will take to get a new justice confirmed, and how many tie votes we will get before then.

In other words, it is possible for the stakes to get even higher about Justice Scalia’s replacement, and rehearing legal challenges to union fees and the contraception benefit, for example, would do just that.

Beyond the impact on the Court’s upcoming business, there is Scalia’s legacy to wrestle with. Already, the tributes are coming in, as is appropriate for a person who served decades in the public sector. But here is where I must part ways with many of my colleagues offering their praises for Scalia.

I am not comfortable honoring a justice who consistently used his power and privilege as a cudgel against the disadvantaged. His dissents, no matter how masterfully written, didn’t strike me as something to celebrate, even ironically, because they became rallying cries for some of the most radical elements of the conservative movement.

Take, for instance, his dissent in Stenberg v. Carhart, the 2000 decision that struck Nebraska’s so-called partial-birth abortion ban.

“I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott,” wrote Scalia, referring to previous Supreme Court opinions justifying Japanese internment during World War II and saying that Black individuals, whether free or enslaved, were not “people” who could bring claims in federal court. “The method of killing a human childone cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”

“The notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd,” he wrote.

It really should come as no surprise that the justice who in his dissent in Planned Parenthood v. Casey flat-out declared reproductive privacy nonexistent and wrote that he was “sure” abortion is not a “liberty protected by the United States,” would invoke racial internment and slavery, and employ terms such as “half-born,” to argue against the fundamental human rights of women. And it should also come as no surprise that more than 20 years after Casey, Scalia’s rhetoric around abortion and slavery finds itself regurgitated by the likes of radical anti-choice operative Troy Newman.

Justice Scalia’s dissents were easy for progressives to write off as the argle-bargle ravings of an angry white man, because they were. It was kind of funny when Scalia snarked about government broccoli during the first challenge to the Affordable Care Act. But for every applesauce quip, there was an example of a sitting Supreme Court justice providing cover and legitimacy to some of the ugliest aspects of the conservative movement.

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,” Scalia said earlier this term, during oral arguments in Fisher v. University of Texas, a case looking to eradicate affirmative action programs in public universities. The Court has not yet released its opinion in Fisher. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

That quote is not Scalia being provocative. It is Scalia promoting discredited social science to support his own personal opinion that affirmative action policies are themselves racially discriminatory.

Almost immediately after news of Justice Scalia’s death broke, Republicans in Congress promised to block any nominee to replace him. President Obama responded by offering his condolences to Justice Scalia’s family for his passing, before promising to fulfill his constitutional duty to quickly name a replacement. Scalia’s death, like much of his life, was instantly, bitterly partisan. In some ways, that’s a feature of our broken federal judiciary system, where appointments are routinely used as political leverage and capital. But in others, it’s a reflection of the kind of jurist Scalia was and why a critical look at his legacy is imperative. Scalia stoked partisanship in his opinions and public appearances, and not simply in the healthy-exercise-of-differences represented by the friendship between him and Justice Ruth Bader Ginsburg. He was the consummate activist judge, and no amount of flowery prose or biting dissents can undo that devastating aspect of his legacy.

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