The death of Supreme Court Justice Antonin Scalia is a major setback
for the conservative legal movement, as will become clear in the months
ahead.
This was to be the term conservatives roared back after one in which
the court’s liberal bloc won most of the important cases, such as
same-sex marriage and Obamacare. On tap to be decided in the next four
months are cases affecting abortion rights, affirmative action, voting
rights, the power of labor unions and President Obama’s health care and
immigration policies — and conservatives stood at least a chance of
winning them all.
Not anymore. Scalia’s untimely death Saturday at a Texas ranch leaves
an empty seat on the Supreme Court — almost surely for the remainder of
the 2015 term, and most likely for the duration of Obama’s presidency.
While the White House and congressional Democrats would like to fill the
seat, their chances of prevailing on those important cases and others
improved markedly.
That’s because the court is now divided evenly between liberals and
conservatives — in fact, tilted slightly to the left because Justice
Anthony Kennedy often takes the liberal side. Tie votes would uphold the
lower court’s ruling; only the abortion and immigration cases were
decided in conservatives’ favor at that level.
Here’s a look at the biggest cases pending before the court, their
current status and potential outcome in the wake of Scalia’s death:
Voting rights (heard Dec. 8): The court is considering
changing the way state and municipal voting districts are drawn by
allowing them to be based on the number of eligible voters, rather than
total population. That would render non-citizens invisible in the count,
along with children, prisoners, some ex-felons and some people with
intellectual disabilities. The result: more rural, mostly white
districts.
During oral argument in December, it seemed the conservative justices
might have five votes to move away from using total population. But they
couldn’t come up with a practical alternative, making it a long shot
that the status quo — using total population — is reversed. For that
reason, Scalia’s absence may not affect the outcome.
Affirmative action (heard Dec. 9): In a crucial test
of university admissions programs that take race into consideration, the
court’s conservatives appeared ready in December to cut back on
affirmative action. At the least, it seemed the University of
Texas-Austin’s program would be affected.
Scalia played a leading role during oral argument, noting that some
briefs submitted to the court suggested that African Americans may do
better at “less advanced” or “slower-track” schools. “I don’t think it
stands to reason that it’s a good thing for the University of Texas to
admit as many blacks as possible,” he said. Without his vote, the
school’s program still could be doomed because liberal Justice Elena
Kagan is recused, setting up a possible 4-3 vote.
Labor unions (heard Jan. 11): This is the case that
conservatives seemed most assured of winning, until now. During oral
argument, the conservatives sharply criticized the current system in
which public employees in 23 states and the District of Columbia must
pay for the cost of collective bargaining, even if they disagree with
union demands.
With Kennedy leading the way, the court appeared likely to strike down
that requirement, which would reverse the lower court and deal a major
blow to the financial clout of public employee unions such as the
California Teachers Association. Now, a tie vote looms which would
uphold the system.
Abortion (to be heard March 2): Abortion clinics in
Texas are challenging a state law, upheld in lower courts, that imposes
tough new restrictions on doctors and facilities. The case has shaped up
to be the biggest one affecting reproductive rights since 1992.
Now, however, it appears that if supporters of abortion rights don’t
win outright with the support of Kennedy or another conservative
justice, a 4-4 tie upholding the Texas law would not set a new national
precedent for federal courts to follow.
Contraception (to be heard March 23): Religious
non-profits such as charities, schools and hospitals are seeking an
exemption from the Affordable Care Act’s mandate that employers pay for
contraceptives as part of standard health insurance plans. They stood a
good chance of winning with Scalia on the bench.
Now, the most likely outcome is a 4-4 tie that would leave the
so-called “contraceptive mandate” in place for those non-profits.
(to be heard in April): President Obama already had a decent chance of
reversing an appeals court ruling and winning about six months to begin
implementing his immigration plan, which would shield more than 4
million undocumented immigrants from deportation. But that was by no
means a sure thing.
Without Scalia, the president still needs the vote of at least one
conservative justice to win the case. A 4-4 tie would preserve the lower
court’s decision against the program, but without setting a national
precedent.
Richard Wolf writes for USA Today
Courtesy: Religion News Service
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