Because of the death of Justice Antonin Scalia, the Supreme Court will likely be left with just eight justices for the rest of its term—four reliable liberals, three reliable conservatives, and one Anthony Kennedy, who leans to the right but has traditionally acted as the court’s swing vote. Since Senate Republicans have already said they are not in any hurry to confirm a new justice so long as President Obama remains in office, we’re probably about to witness a number of deeply important cases end in a 4-to-4 split this year.
And what happens then? When a Supreme Court case winds up in a tie, the justices typically issue a short per curiam opinion upholding the decision of the lower appeals court. That means this term’s heavily anticipated rulings on public sector unions and voting representation are likely to end in liberal victories by default. But there’s a catch: Those lower court rulings won’t apply outside of their own jurisdictions, meaning the issues could be litigated all over again in future cases brought elsewhere in the country. Meanwhile, cases on immigration and abortion rights are still sitting in Kennedy’s hands and thus could still result in at least temporary conservative victories. Finally, affirmative action as we know it could meet its end with a 4-3 decision.
Here’s a brief rundown of how Scalia’s passing will (or won’t) affect the biggest cases of this term.
Case: Friedrichs v. California Teachers Association
Issue: Public sector union rights
Outcome in a split: The liberals win.
Not to be too blunt, but presenting this case before a post-Scalia court is an enormous break for American labor unions. In Friedrichs v. California Teachers Association, the court is considering whether public servants can be forced under “fair share” laws to pay fees to unions in order to cover the cost of collective bargaining on their behalf, even if they’re not members. A ruling against the teachers’ unions would effectively extend right-to-work laws to government employees across the nation and significantly cut into public-sector union revenue. And as of oral arguments, it looked as if that was about to happen. But with Scalia no longer on the court, the decision by the U.S. Court of Appeals for the 9th Circuit, which upheld fair share rules, may still stand.
Case: Evenwel v. Abbott
Issue: One-person, one-vote
Outcome in a split: Liberals win.
This case had the potential to drastically change the way that states draw legislative maps. Now, not so much.
Under the principle of one-person, one-vote, states have traditionally tried to create legislative districts that have rougly equal total populations. In Evenwel, the plaintiffs argued that districts should be based on the total number of potential voters. That would exclude minors, unnaturalized immigrants, and felons who had been stripped of their voting rights from the calculation, likely tilting the process in favor of conservatives. The lower court, however, said it was fine for states to continue using total population. In the event of a 4-4 split, that decision will stand.
Case: U.S. v. Texas
Issue: Whether states can challenge federal immigration policy
Outcome in a split: Conservatives win.
In November 2014, President Obama issued a controversial executive action allowing certain undocumented immigrants to apply for temporary legal status if they had children who were citizens or green-card holders. However, 26 states including Texas sued to block the action, and a federal appeals court put the policy on hold while the litigation unfolded. The Supremes have been asked to decide whether states even have the right to sue over the issue, and so a 4-4 nondecision would mean that the lower court decision stands.
Case: Whole Woman’s Health v. Hellerstedt
Issue: Abortion
Outcome in a split: Conservatives win.
The plaintiffs in this blockbuster reproductive rights case are challenging a Texas law that, as Sarah Kliff of Vox notes, has forced half the state’s abortion clinics to close since 2013 by requiring them to get admitting privileges at local hospitals. Were it to stand, additional providers would likely shutter and a legal blueprint would be left in place for more anti-abortion state legistures to limit access. Scalia was a staunch abortion foe. But in the event of a tie, the case would still turn into a conservative win, at least in the states covered by the 5th Circuit, as the U.S. Court of Appeals for the 5th Circuit had previously upheld the Texas law. Thus, this case still comes down to Kennedy’s vote.
Case: Fisher v. Texas
Issue: Affirmative action
Outcome in a split: There won’t be a split.
Abigail Fisher sued University of Texas at Austin over its affirmative action policy after the school rejected her, claiming that the insitution violated the constitution’s equal protection clause by considering race in admissions. Again, Scalia was an almost sure vote to end racial preferences, but his passing doesn’t matter all that much in this instance, since Justice Elena Kagan has recused herself from the suit. (She was solicitor general when the Obama administration filed a friend-of-the-court brief in the case.)
Where does Kennedy stand? He’s not known as an affirmative action fan, and two years ago, he wrote the decision sending Fisher back to the lower court for a more stringent review. But during the last oral argument, he largely complained that the most recent version of the case hadn’t brought any new facts to light and didn’t exactly tip his hand.
Case: Zubik v. Burwell
Issue: Obamacare’s contraception mandate
Outcome in a split: The law will be different depending where you live in the country.
If this case ends in a split, things are going to get a bit weird for Obamacare’s contraception mandate. You probably remember the Hobby Lobby case from 2014, in which the court ruled that private businesses could exempt themselves from the Affordable Care Act’s rules requiring employer-based health plans to cover birth control, so long as their owners had deep religious convictions. After that decision, the Obama administration came up with an “accommodation,” which essentially let those companies off the hook while making sure their workers got their free contraception. However, a number of religiously affiliated nonprofits have sued once again, basically saying the accommodation isn’t good enough. Most courts have ruled against them, except for the U.S. Court of Appeals for the 8th Circuit. So, if this one ends in a tie, nothing will be settled, and the law will still differ judicial district to judicial district. Just one good reason among many we might want to get a new justice on the Supreme Court soon.
