Justice Scalia’s Death Could Change Six Probable Conservative Wins to Ties

Following the death of Justice Antonin Scalia, there are six key cases on the Supreme Court’s docket that were considered possible 5-4 conservative wins, which may now be 4-4 ties. The cases address important issues: one man, one vote, abortion, religious freedom, constitutionally defined separation of powers, affirmative action, and right to work.

The Court’s term begins each year on the first Monday in October, which means there are some cases on which the late justice voted. However, each of his votes during the present court term are negated. Per University of Michigan Law professor Samuel Bagenstos:

“Unless a justice is sitting at the court at the time of argument and at the time the decision is issued, the justice’s vote doesn’t count.”

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Generally, the Supreme Court hears oral arguments for seven months (between October and April), scheduling them into two-week sessions during which the Court hears two arguments per day Monday through Wednesday. When holidays are added to the mix, the court hears 9-10 arguments each of those months. Per the court’s published monthly argument calendars, Justice Scalia heard – and probably voted on – 38 cases during the present term.

If any of those cases, or the ones still unheard, result in a 4-4 tie, the Court could either:

  1. Vote to rehear the case when a 9th justice joins the Court, or
  2. Vote to allow the ruling of the lower court to stand, but only for the jurisdiction of that particular court (there are 13 appellate courts split into 12 regions across the country below the U.S. Supreme Court).

The six cases most affected by Justice Scalia’s death, that most likely would result in 4-4 tie are:

  • Evenwel v. Abbott: Heard in November 2015. This case from Texas addresses how a state apportions voting districts. Must it limit itself to counting just voting population, or count everyone (including children, felons, and illegal aliens). The lower court sided with the state, which advocates counting every person.
  • Whole Woman’s Health v. Hellerstedt: To be heard in March 2016, this case evaluates the constitutionality of the Texas law requiring abortion centers to have the same medical standards as ambulatory surgical centers and requiring abortionists to obtain hospital admitting privileges.
  • Zubik v. Burwell: To be heard in March 2016. This case involves the Little Sisters of The Poor, and consolidates six cases. At issue is whether religious-affiliated organizations must comply with Obamacare requirements to provide birth control. Non-profit religious organizations are legally allowed to waive the birth control requirement by signing a form designating their insurance company to provide employees with birth control without the non-profit paying for it. The religious groups argue that signing the form involves their participation in a practice that violates their religious beliefs.
  • U.S. v. Texas: To be heard in March 2016. This case addresses the constitutionality of Obama’s executive order granting amnesty to roughly five million illegal aliens. The lower court issued a stay of action until the Supreme Court could hear the case. Obama fought to have the stay overturned and allow the order to be implemented. The Court has indicated its decision will be partially based on whether his executive order violated Article II, Section 3 of the U.S. Constitution, which states the president’s duty is to “take Care that the Laws be faithfully executed.” A 4-4 tie would return the case to the lower court where it will be heard and (most probably) will be sent back to the Supreme Court.
  • Fisher v. University of Texas: This will be the second time the Court will hear this affirmative action case; the first was in 2013. The latest hearing was in December 2015 and Justice Kagan recused herself. In 2013, rather than rule on the constitutionality of the University using race as a qualifier for admission, the Court sent it back to the lower court stating it should have used “strict scrutiny.” Strict scrutiny means the ruling has to address three questions. First, what is the compelling governmental interest? Second, was the element being ruled on narrowly tailored to achieve that interest? And, finally, as tailored, is the law/rule being evaluated by the Court the least restrictive means for achieving that interest?  Applying those standards, the lower court ruled in favor of the University’s use of race. Now, the Court will rule based on the merits of the case itself. This time, if the University of Texas wins, it may be because Scalia isn’t there to render a tie.
  • Friedrichs v. California Teachers Association: Heard in January 2016. At issue: can a public sector employee legally be forced to join a union? California and other states have what is called “agency shop” laws, which require public employees to pay union dues as a condition of their employment. If the result is a 4-4 tie, the “agency shop” laws would be upheld.

Americans will find out the results of these, and all of the Courts cases between the end of May and early June of this year.

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