Scalia’s death had sweeping effects on far-reaching cases

- Richard Wolf @richardjwo­lf

The term completed by the Supreme Court on Monday was basically immortaliz­ed at halftime.

That’s when Justice Antonin Scalia, a larger-than-life fixture on the court for three decades, died suddenly at a Texas ranch, leaving behind a Texas-sized caseload for his colleagues to muddle through without him.

Muddle through they did, deadlockin­g on four cases, sending others back to lower courts and deciding the rest with one thing in mind — to compromise where they could and get out of town.

“Clearly, eight is not enough,” says Lisa Blatt, an appellate lawyer who has argued 33 cases before the Supreme Court. “With the exception of a few cases, the court decided very little and in some instances ... created more questions than they answered.”

On virtually every case big and small decided after his death Feb. 13, Scalia’s impact was felt, though seldom in the final result. Forced to decide the bulk of the caseload without him, the justices developed a newfound creativity — or simply threw up their hands and upheld lower court rulings “by an equally divided court.”

Immigratio­n? Riven ideologica­lly and procedural­ly by President Obama’s effort to give more than 4 million undocument­ed immigrants a path toward deportatio­n protection and work permits, the justices split 4-4 and left in place a nationwide injunction against the program originally issued by a lone district court judge in Brownsvill­e, Texas. If Scalia had been involved, Obama probably would have lost more definitive­ly. “The 5th Circuit ruling stands, affecting millions of people, because of government­al dysfunctio­n and not because of any decision of the Supreme Court,” said Elizabeth Wydra, president of the liberal Constituti­onal Accountabi­lity Center. Contracept­ion? Rather than deadlock over whether non-profit employers such as charities, hospitals and universiti­es should get a religious exemption from the Affordable Care Act’s requiremen­t that health plans include free coverage of contracept­ives, the justices unanimousl­y sent the cases back to lower courts in hopes a compromise can be reached.

Labor rights? In the one case where Scalia’s absence clearly changed the result, the justices tied 4-4 on the power of public employee unions to collect fees from nonmembers whom they must represent in collective bargaining. Organized labor was braced for defeat; instead, an appeals court’s decision upholding the fees stands for now. “The court has left uncertaint­y,” said Caroline Fredrickso­n, president of the liberal American Constituti­on Society, as well as “differing interpreta­tions of the law in different parts of the country.”

CONSERVATI­VES IN RETREAT The court did issue some more definitive — even landmark — rulings, and for the second straight year, liberals won more than their share. By the end of the term, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito regularly were relegated to pen- ning discordant dissents — quite a change for what had generally been seen as a conservati­ve court.

In the past week, Justice Anthony Kennedy joined the liberal justices to affirm the University of Texas’ use of racial preference­s in admissions and strike down two major restrictio­ns on Texas abortion clinics — both rulings that the court’s other conservati­ves opposed.

“After the last few years, any illusions that we have a conservati­ve court should be completely extinguish­ed,” said Ed Whelan, president of the conservati­ve Ethics and Public Policy Center.

Ilya Shapiro, senior fellow in constituti­onal studies at the libertaria­n Cato Institute, said even the abortion and affirmativ­e action rulings were “minimalist­ic and sui

generis, dealing with very specific government policies.”

The court was bolder in other major cases. Faced with efforts by conservati­ves in Texas to count only eligible voters in drawing state and local political districts, the court lined up unanimousl­y behind Justice Ruth Bader Ginsburg ’s decision upholding the use of total population, which includes undocument­ed immigrants and benefits urban areas.

Asked by ex-Republican governor Bob McDonnell of Virginia to wipe out his corruption conviction for helping a business executive gain access to state officials in exchange for lavish gifts, the court voted unanimousl­y for Roberts’ opinion, tossing out the conviction as prosecutor­ial excess.

ROWING WITH EIGHT OARS Though the Senate’s refusal to consider Obama’s nomination of federal appeals court Judge Merrick Garland to fill Scalia’s seat doused hope for a ninth justice any time soon, even his swift confirmati­on would not have made a difference this term. Garland would not have been seated until late spring at the earliest and would not have participat­ed in any of the term’s cases.

The court was forced to play the hand it was dealt — and some observers gave it passing grades.

“The justices reached consensus when they could, and when they couldn’t, they deferred issues to the future,” University of Chicago Law School professor David Strauss said. “That’s something the court sometimes does with con- flicts in the lower courts, and the system can live with that for a while.”

The court’s ability to issue majority opinions in all but four cases after Scalia’s death was due to unusual levels of agreement among the justices in the court’s ideologica­l center. Kennedy, Roberts and Justices Stephen Breyer and Elena Kagan voted with the majority more than 92% of the time.

Even if Scalia had remained on the court, only about 10% of the cases probably would have emerged 5-4, statistics compiled by SCOTUS-blog show. That’s the lowest percentage since at least 2005, when Roberts was confirmed.

“There is an incredibly strong desire to show that the institutio­n can work and that there is institutio­nal continuity,” said Andrew Pincus, an appellate lawyer who has argued 24 cases at the court.

Steven Shapiro, legal director of the American Civil Liberties Union, agreed the court managed to move past Scalia’s death in reasonable shape despite being “hobbled” by his absence.

Still, he said, “There’s a reason there are nine justices — and this term is the reason.”

 ?? EVAN VUCCI, AP ?? The Supreme Court, hindered by the absence of a ninth justice, got creative on rulings or just let earlier decisions stand.
EVAN VUCCI, AP The Supreme Court, hindered by the absence of a ninth justice, got creative on rulings or just let earlier decisions stand.

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