The arguments will go on.

Photographer: Drew Angerer/Getty Images

Scalia's Death Probably Flips Big Cases

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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How will the death of Justice Antonin Scalia affect the major cases before the U.S. Supreme Court this term, all of which are expected to be decided by the end of June? The answer doesn’t depend entirely on how Scalia would’ve voted. It also depends on a necessary rule of procedure: When the Supreme Court is divided equally, it upholds the decision below.

Applying this dual analysis to five major cases in the pipeline yields some surprising results. The issues involved are: fees in lieu of union dues for nonunion workers, the University of Texas’s affirmative-action admissions program, Texas’s restrictive abortion law, President Barack Obama’s executive action on immigration, and a group of nuns’ demand to be exempted from filing a certificate so they won’t have to pay for employees’ contraceptive insurance under the Affordable Care Act. By my reckoning, most of these cases now have a strong chance to come out differently than they would’ve had Scalia lived through the end of the term.

Start with Friedrichs v. California Teachers Association, the union dues case argued in January. Most observers, myself included, thought it was highly probable that the court would repudiate the 1977 precedent of Abood v. Detroit Board of Education, based on a 5-4 decision from 2014 in which the justices strongly hinted that this was coming. The precedent says that nonunion members must pay the equivalent of partial dues to compensate the union for the benefits they receive from collective bargaining; the court was expected to eliminate the requirement using a theory based on the freedom of association.

The case before the Supreme Court, however, is based on a petition filed by Rebecca Friedrichs, who lost in the 9th Circuit Court of Appeals. The appellate court could read the writing on the wall as well as anyone, but it correctly decided to follow the Supreme Court’s precedent and not the smoke signals about where it might be going.

Scalia’s vote was needed to overturn the Abood case. Without it, the case will likely be decided 4-4 -- which means the decision below will be upheld by divided court. No new binding Supreme Court precedent will be formed. Instead of winning a major battle against unions, conservative free-association advocates will have to wait for another day, and another configuration of justices.

The affirmative-action case, Fisher v. University of Texas at Austin, was widely expected to depend on the swing vote of Justice Anthony Kennedy. The 5th Circuit upheld the Texas admissions sorting hat. A 4-4 decision would uphold that judgment. But Justice Elena Kagan is recused because she worked on the case when she was solicitor general.

If he wants to, Kennedy could still vote to strike down the 5th Circuit’s decision, yielding a 4-3 advantage for the conservatives. That would count as a majority in a technical sense, and in theory would have precedential weight. But it’s highly unattractive to decide landmark cases with the number of votes that ordinarily loses cases. A 4-3 decision is begging to be reconsidered by a newly configured court. And Kennedy has always believed that precedent should last. As he famously (and ponderously) put it in 1992, “liberty finds no refuge in a jurisprudence of doubt.”

At oral argument in December, Kennedy seemed to be toying with the idea of deciding not to decide affirmative action. Now it seems almost certain that he will take that course rather than determine such a hugely important issue with four votes.

Affirmative action will live another day -- and maybe a lot longer than that, depending on who gets to appoint the next several justices.

The Texas abortion case to be argued March 2, Whole Woman’s Health v. Hellerstedt, is an anomaly. The 5th Circuit upheld the law despite its effect of closing down most of the abortion clinics in the state. Kennedy was expected to be the deciding vote, and he still will be. If he votes to uphold the decision below, the tally will almost certainly be 4-4. If he votes to strike it down, it’ll be 5-3. Either way, he makes the call.

Obama’s executive action on immigration was and remains more unpredictable than the other cases -- but its circumstances have changed, before its oral argument has even been scheduled, especially as constitutional precedent will be determined. U.S. v. Texas arose after a federal district court issued a preliminary injunction that blocked the plan from being implemented anywhere in the country until the district court could hold a trial, which could take years. The 5th Circuit upheld the injunction, including its nationwide scope.

The court’s four liberals are sure to vote for striking down the decision below. It’s a pretty safe bet that Scalia and Justices Clarence Thomas and Samuel Alito would’ve voted to uphold the 5th Circuit. But Kennedy is uncertain, as is Chief Justice John Roberts.

If Scalia had lived, and both Roberts and Kennedy had voted that Obama overstepped his authority, the result would’ve been a landmark decision on executive power, probably written by Roberts.

Instead, the most the conservatives can hope for is a 4-4 decision upholding the 5th Circuit by a divided court. The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.

In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.

There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself -- votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.

Last come the Little Sisters of the Poor, whose case will be heard on March 23. Their claim under the Religious Freedom Restoration Act wasn’t certain to win, but they needed Scalia’s vote to have a chance. Even if Kennedy sides with them, they’ll lose -- because the 10th Circuit held against them. The Supreme Court took other cases from other circuits with different rulings at the same time, so the law will be different in different parts of the country for the time being. The court will have to revisit the issue when it’s at full strength. For now, the nuns will surely miss having Scalia on the bench.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net