Supreme Court, Party of Eight?

Emmett McKinney

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Flags were hardly lowered to half-staff before the battle over Scalia's replacement. [Photo: Chicago Tribune]

Flags were hardly lowered to half-staff before the battle over Scalia’s replacement. [Photo: Chicago Tribune]

To describe the death of Justice Antonin Scalia as ‘monumental’ would not be an overstatement. A Reagan appointee, Justice Scalia reliably staked out the conservative position with colorful, biting opinions during an era that saw the Court grow steadily more liberal. Indeed, many of the most controversial decisions in the past decade have been decided five to four, with the conservative-leaning Justice Kennedy accounting for the swing vote. Scalia’s absence leaves the Court split down the middle—four conservatives, four liberals. Thus, Obama gets an unexpected chance to tip the balance of the Court to the left before leaving office.

Unsurprisingly, Senate Republicans began digging trenches for the coming confirmation battle almost immediately after Scalia’s passage, suggesting they will refuse to grant a hearing to any Obama nominee. Majority leader Mitch McConnell (R-KY) was quick on the draw, releasing a statement a little more than an hour after Scalia’s death declaring “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Ted Cruz (R-TX) chimed soon after, tweeting that “We owe it to him, & the Nation for the Senate to ensure that the next President names his replacement [sic].”

One need not be a Constitutional expert to recognize that Republican’s preemptive recalcitrance is bogus. As pointed out by Sen. Harry Reid (D-NV), the Senate is Constitutionally obligated to give their advice and consent to the President’s nominee, but they are not entitled to deny the President his Constitutional right to appoint a new Supreme Court Justice. Sen. McConnell himself made this point in 2005 when Democrats threatened to filibuster President Bush’s nomination of Justice Roberts. As recounted by The Daily Kos, Sen. McConnell declared Republicans’ intent “to restore the principal that, regardless of party, any President’s judicial nominees, after full debate, deserve a simple up-or-down vote.” McConnell’s call for obstructionism may be childish and hypocritical, but this sort of radical politicking has become the norm in today’s Congress. As such, Scalia’s seat on the bench may remain empty for months while the President fights a long, messy confirmation battle with Congress. The Court may very well finish its term with eight justices.

In the mean time, what are the implications are of an empty seat on the bench?

First, a short-handed Court could dramatically change the outcomes of this term’s cases. The Court has at times operated with eight when a justice steps down, passes away, or recuses herself due to a conflict of interest. If these cases split four to four, then the Court defers to the ruling of the lower district Court that is being challenged. This deference won’t change the outcome of most cases, given the Court’s tendency to rule unanimously.

However, several upcoming (and potentially landmark) cases could shift in Scalia’s absence. Whole Woman’s Health v. Hellerstedt will revisit the precedent set in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In Casey, the Court affirmed a woman’s right to end a pregnancy before viability, and in turn prohibited states from enacting “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking abortion.” Hellerstedt, scheduled for oral argument on March 2, will re-evaluate a Fifth Circuit ruling that allowed Texas to implement restrictive abortion laws, justified as necessary health regulations. Given that abortion is consistently one of the most divisive issues, the eight serving justices are likely to split four-to-four, effectively upholding the Fifth Circuit ruling. In a procedural twist, then, Scalia’s absence would work to conservatives’ advantage.

The same is true of United States v. Texas, which will decide the legality of President Obama’s recent orders that would allow millions of undocumented immigrants to avoid deportation. Should the Court split down the middle, the Fifth Circuit ruling would stand, effectively vacating Obama’s pro-immigrant actions.

In some cases, however, Scalia’s absence will undo what might have otherwise been conservative victories. For example, the Court has already heard arguments for Friedrichs vs. California Teacher’s Association, which asks whether public sector unions are allowed to charge “fair share fees” to non-union members for the services the unions provide to non-members. As pointed out by Think Progress, Scalia seemed poised to join a five-justice majority opposing the unions. However, a Supreme Court decision does not become official until it is officially announced. If a justice passes away or steps down before then, his or her vote is vacated. Thus, a case slated to be a narrow victory for conservatives will likely result in a draw, and the Ninth Circuit in favor of public sector unions will stand.

Lastly, President Obama’s Clean Power Plan could benefit from Scalia’s passage. The Clean Power Plan is a set of regulations laid forth by the Environmental Protection Agency that places strict limits on carbon emissions from the domestic electricity sector. The EPA asserts the authority to regulate these emissions under the Clean Air Act, which grants the agency the right to set performance standards for airborne pollutants from existing facilities. Shortly before his death, Scalia joined Justices Roberts, Kennedy, Thomas, and Alito in issuing a ‘stay,’ which forbids the implementation of the Clean Power Plan pending the ruling of the DC District Court on the Clean Power Plan’s constitutionality. The three-judge panel assigned to review the Clean Power Plan, however, happens to play in the EPA’s favor. Democrats appointed two of the judges, while the third, despite being a Republican appointee, has ruled in favor of the EPA on several occasions. The D.C. Circuit is thus likely to uphold the Clean Power Plan—and if this affirmative ruling were appealed to the Supreme Court, conservatives and liberals would once again split evenly: good news for the EPA.

In short, an empty Supreme Court seat may not help conservatives in the courtroom—but it may not be disastrous.