SUPREME COURT TERM DEFINED BY ONE EMPTY CHAIR
Scalia’s death had sweeping effects on far-reaching cases
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.”