Sunday, February 14, 2016
As Jennifer has noted in her earlier post, yesterday our country lost a legal giant. Regardless of what one thinks of the substance of Justice Scalia's opinions, it is undeniable that he was a brilliant man who made a huge impact on how we think about and interpret the Constitution. He also contributed greatly to the field of advocacy. I plan to discuss both of those issues in a future post. Today, however, I would like to discuss the impact of Justice Scalia's death on the cases before the Court and its impact on our country as we are in the midst of a presidential election year.
Impact on the Court
There are two main questions to consider when evaluating the impact of Justice Scalia's death on the current Court. The first is what will happen in the cases that the Court has heard argument for and voted on in conference. The second is what will the impact be on the cases yet to be heard this term. The first question is complicated, and in the less than 12 hours since Justice Scalia's passing was announced, I have heard differing views. According to a post by Tom Goldstein of SCOTUSBlog, "Votes that the Justice cast in cases that have not been publicly decided are void." However, a friend of mine who clerked on the Court believes that if Justice Scalia signed on to the final opinion his vote would be counted. So, there could theoretically be a small number of opinions released that Justice Scalia signed on to, but it is unlikely. I expect that we will hear something from the Court on this issue.
So, what happens to the rest of the cases? Well, the Court will decide them with just eight members. There is certainly precedent for the Court deciding cases with just eight members--it happens when a Justice is recused. What happens then in those really controversial cases where the Court ties 4-4? In those cases, the decision of the lower court stands, unless the Court decides to rehear the cases when it has a full bench. Let's look briefly at how that would impact some of the big cases this term.
- Friedrichs v. California Teachers Association: Friedrichs involves a challenge to mandatory public sector union dues. The union won below at the Ninth Circuit.
- Fisher v. University of Texas at Austin: Fisher, up for the second time before the Court, concerns the constitutionality of the University of Texas's affirmative action policy. The Fifth Circuit upheld the University's policy.
- Whole Woman’s Health v. Hellerstedt: This case concerns a challenge to a Texas law regulating physicians who perform abortions and abortion clinics. The regulations were upheld by the Fifth Circuit.
- Little Sisters of the Poor Home for the Aged v. Burwell: This case concerns the regulatory accommodation to contraception mandate for religious nonprofit organizations. There are in fact seven consolidated contraception mandate cases before the Court. The religious nonprofits all lost below (D.C. Circuit, Third Circuit, Fifth Circuit, and Tenth Circuit). Interestingly, there are two Eighth Circuit cases not before the Court where the accommodation was struck down.
- United States v. Texas: In this case, Texas is challenging President Obama's executive action on immigration. Texas won below.
This is just a small sample of the close cases before the Court this term that will be impacted by Justice Scalia's death.
Impact on the Country
Justice Scalia was thought by many to be the leading conservative voice on the Court. By replacing Justice Scalia with a more liberal nominee, President Obama has the opportunity to change the direction of the Court for years to come. President Obama has already announced that he will nominate Justice Scalia's successor. But, in case you haven't noticed, we are in a presidential election year, and that makes things complicated. Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Charles Grassley have announced that they believe that the Senate should wait to confirm a nominee until after the presidential election.
Legal scholars on both sides of this debate have started releasing talking points and statistics on how much (or how little) the presidential election should impact the nomination and confirmation of Justice Scalia's successor. Amy Howe, also of SCOTUSblog, presents the "pro-confirm" argument, while Prof. Josh Blackman presents an interesting discussion of how divided government impacts the nomination and confirmation of a Supreme Court nominee in a presidential election year.
Both sides like to discuss the nomination and confirmation of Justice Kennedy. He replaced Justice Lewis Powell, who retired in June 1987. President Reagan first nominated Judge Robert Bork to the Powell seat, but Bork was rejected by the Senate. Judge Douglas Ginsburg was nominated next, but his nomination was ultimately withdrawn. Finally, Judge Anthony Kennedy was nominated in November 1987, and confirmed in February 1988, which was a presidential election year.
Finally, there is always the possibility of a recess appointment by President Obama. However, given the Supreme Court's recent decision in Noel Canning, which concerned when the Senate was properly in recess for purposes of a recess appointment, it seems likely that the Senate can keep itself in session enough to avoid any recess appointments.
Disclaimer: I have joined two amicus briefs in cases noted above. In Whole Woman’s Health v. Hellerstedt, I joined an amicus brief on behalf of Scholars of Federalism in support of Respondents. In Little Sisters of the Poor Home for the Aged v. Burwell, I joined an amicus brief on behalf of Constitutional Law Scholars in support of Petitioners.
Upon the passing of Justice Scalia, I wanted to share my personal recollections I have associated with him. I was only twice in the same room with Justice Scalia. The first time I was just barely a 1L and had a last minute opportunity to see him in an auditorium in downtown Ft. Worth. I even dragged my four year old son with me! I didn't know much about the Court at that time but found him to be engaging, funny, witty, and amazingly quick and intelligent. I loved him immediately.
The second time, I managed to be within a few feet of him at the U.S. Supreme Court when I was sworn in with my Texas Wesleyan colleagues on a special trip to DC. That was a great day - it's memorialized on my office wall where I proudly hang a picture of me with Chief Justice Roberts. I met Justice Ginsberg that day too. I will never get over what a tiny lady she is, but when she speaks you can hear a pin drop. Justice Kennedy was there too and he also was also very funny and lovable.
As a writing teacher, I will especially miss Justice Scalia's unique style. I'll never again rush straight to his opinion, skipping over the others, no matter whether he was in the majority or the dissent. A true historical giant. Regardless of political persuasion, whoever replaces him has monumental shoes to fill.