Chicago Sun-Times

Battle already boiling over successor 24 How justice’s death affects rulings this hi year

- Richard Wolf

WASHINGTON The death of Supreme Court Justice Antonin Scalia is a major setback for the conservati­ve legal movement.

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.

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

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. 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

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. 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

This is the case that conservati­ves seemed most assured of winning, until now. In 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.

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

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 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

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 “contracept­ive mandate” in place for those non- profits.

IMMIGRATIO­N

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 not 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.

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