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.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

Roundups Sexual Health

This Week in Sex: The Sexually Transmitted Infections Edition

Martha Kempner

A new Zika case suggests the virus can be transmitted from an infected woman to a male partner. And, in other news, HPV-related cancers are on the rise, and an experimental chlamydia vaccine shows signs of promise.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Zika May Have Been Sexually Transmitted From a Woman to Her Male Partner

A new case suggests that males may be infected with the Zika virus through unprotected sex with female partners. Researchers have known for a while that men can infect their partners through penetrative sexual intercourse, but this is the first suspected case of sexual transmission from a woman.

The case involves a New York City woman who is in her early 20s and traveled to a country with high rates of the mosquito-borne virus (her name and the specific country where she traveled have not been released). The woman, who experienced stomach cramps and a headache while waiting for her flight back to New York, reported one act of sexual intercourse without a condom the day she returned from her trip. The following day, her symptoms became worse and included fever, fatigue, a rash, and tingling in her hands and feet. Two days later, she visited her primary-care provider and tests confirmed she had the Zika virus.

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A few days after that (seven days after intercourse), her male partner, also in his 20s, began feeling similar symptoms. He had a rash, a fever, and also conjunctivitis (pink eye). He, too, was diagnosed with Zika. After meeting with him, public health officials in the New York City confirmed that he had not traveled out of the country nor had he been recently bit by a mosquito. This leaves sexual transmission from his partner as the most likely cause of his infection, though further tests are being done.

The Centers for Disease Control and Prevention (CDC)’s recommendations for preventing Zika have been based on the assumption that virus was spread from a male to a receptive partner. Therefore the recommendations had been that pregnant women whose male partners had traveled or lived in a place where Zika virus is spreading use condoms or abstain from sex during the pregnancy. For those couples for whom pregnancy is not an issue, the CDC recommended that men who had traveled to countries with Zika outbreaks and had symptoms of the virus, use condoms or abstain from sex for six months after their trip. It also suggested that men who traveled but don’t have symptoms use condoms for at least eight weeks.

Based on this case—the first to suggest female-to-male transmission—the CDC may extend these recommendations to couples in which a female traveled to a country with an outbreak.

More Signs of Gonorrhea’s Growing Antibiotic Resistance

Last week, the CDC released new data on gonorrhea and warned once again that the bacteria that causes this common sexually transmitted infection (STI) is becoming resistant to the antibiotics used to treat it.

There are about 350,000 cases of gonorrhea reported each year, but it is estimated that 800,000 cases really occur with many going undiagnosed and untreated. Once easily treatable with antibiotics, the bacteria Neisseria gonorrhoeae has steadily gained resistance to whole classes of antibiotics over the decades. By the 1980s, penicillin no longer worked to treat it, and in 2007 the CDC stopped recommending the use of fluoroquinolones. Now, cephalosporins are the only class of drugs that work. The recommended treatment involves a combination of ceftriaxone (an injectable cephalosporin) and azithromycin (an oral antibiotic).

Unfortunately, the data released last week—which comes from analysis of more than 5,000 samples of gonorrhea (called isolates) collected from STI clinics across the country—shows that the bacteria is developing resistance to these drugs as well. In fact, the percentage of gonorrhea isolates with decreased susceptibility to azithromycin increased more than 300 percent between 2013 and 2014 (from 0.6 percent to 2.5 percent).

Though no cases of treatment failure has been reported in the United States, this is a troubling sign of what may be coming. Dr. Gail Bolan, director of CDC’s Division of STD Prevention, said in a press release: “It is unclear how long the combination therapy of azithromycin and ceftriaxone will be effective if the increases in resistance persists. We need to push forward on multiple fronts to ensure we can continue offering successful treatment to those who need it.”

HPV-Related Cancers Up Despite Vaccine 

The CDC also released new data this month showing an increase in HPV-associated cancers between 2008 and 2012 compared with the previous five-year period. HPV or human papillomavirus is an extremely common sexually transmitted infection. In fact, HPV is so common that the CDC believes most sexually active adults will get it at some point in their lives. Many cases of HPV clear spontaneously with no medical intervention, but certain types of the virus cause cancer of the cervix, vulva, penis, anus, mouth, and neck.

The CDC’s new data suggests that an average of 38,793 HPV-associated cancers were diagnosed each year between 2008 and 2012. This is a 17 percent increase from about 33,000 each year between 2004 and 2008. This is a particularly unfortunate trend given that the newest available vaccine—Gardasil 9—can prevent the types of HPV most often linked to cancer. In fact, researchers estimated that the majority of cancers found in the recent data (about 28,000 each year) were caused by types of the virus that could be prevented by the vaccine.

Unfortunately, as Rewire has reported, the vaccine is often mired in controversy and far fewer young people have received it than get most other recommended vaccines. In 2014, only 40 percent of girls and 22 percent of boys ages 13 to 17 had received all three recommended doses of the vaccine. In comparison, nearly 80 percent of young people in this age group had received the vaccine that protects against meningitis.

In response to the newest data, Dr. Electra Paskett, co-director of the Cancer Control Research Program at the Ohio State University Comprehensive Cancer Center, told HealthDay:

In order to increase HPV vaccination rates, we must change the perception of the HPV vaccine from something that prevents a sexually transmitted disease to a vaccine that prevents cancer. Every parent should ask the question: If there was a vaccine I could give my child that would prevent them from developing six different cancers, would I give it to them? The answer would be a resounding yes—and we would have a dramatic decrease in HPV-related cancers across the globe.

Making Inroads Toward a Chlamydia Vaccine

An article published in the journal Vaccine shows that researchers have made progress with a new vaccine to prevent chlamydia. According to lead researcher David Bulir of the M. G. DeGroote Institute for Infectious Disease Research at Canada’s McMaster University, efforts to create a vaccine have been underway for decades, but this is the first formulation to show success.

In 2014, there were 1.4 million reported cases of chlamydia in the United States. While this bacterial infection can be easily treated with antibiotics, it often goes undiagnosed because many people show no symptoms. Untreated chlamydia can lead to pelvic inflammatory disease, which can leave scar tissue in the fallopian tubes or uterus and ultimately result in infertility.

The experimental vaccine was created by Canadian researchers who used pieces of the bacteria that causes chlamydia to form an antigen they called BD584. The hope was that the antigen could prompt the body’s immune system to fight the chlamydia bacteria if exposed to it.

Researchers gave BD584 to mice using a nasal spray, and then exposed them to chlamydia. The results were very promising. The mice who received the spray cleared the infection faster than the mice who did not. Moreover, the mice given the nasal spray were less likely to show symptoms of infection, such as bacterial shedding from the vagina or fluid blockages of the fallopian tubes.

There are many steps to go before this vaccine could become available. The researchers need to test it on other strains of the bacteria and in other animals before testing it in humans. And, of course, experience with the HPV vaccine shows that there’s work to be done to make sure people get vaccines that prevent STIs even after they’re invented. Nonetheless, a vaccine to prevent chlamydia would be a great victory in our ongoing fight against STIs and their health consequences, and we here at This Week in Sex are happy to end on a bit of a positive note.