The current term of the Supreme Court began the first Monday in October and will continue until at least late June. Several major cases have already been argued before the justices, but the vote on those decisions as well as several high-profile cases that have yet to be heard must now go forward without the court’s most reliable conservative voice.
What does that mean for major cases on abortion, the Obamacare contraception mandate, affirmative action, voting rights, and other issues?
- Abortion: On March 2 the court will hear the biggest abortion case in years. The case is a challenge to a Texas law implement several restrictive regulations on abortion clinics and providers. If the court votes 4-4, then the lower court’s ruling affirming the law stands.
- Power plants: One of Scalia’s last acts was to vote to stay the Clean Power Plan while the D.C. Circuit Court of Appeals hears the case, an act that the lower court had refused to take. The D.C. Circuit Court of Appeals is generally seen as a more liberal court and, therefore, could rule in favor of the administration and put the Clean Power Plan back into effect. If a 4-4 tie is reached, the D.C. court’s decision would stand and the Clean Power Plan would stay in place.
- Unions: The case of Friedrichs v. California Teachers Association is over union fees and also expected to be decided 4-4. The lower court ruled against plaintiffs fighting the union fees as part of a strategy by the defendant to get the case to the high court as soon as possible, according to the Center for Individual Rights, which has been taking up the case.
- Affirmative Action: Fisher v. University of Texas challenges the affirmative action admissions policy for the university. It may still lead to a decision though. Justice Elena Kagan has previously recused herself.
- Immigration: This case centers on President Obama’s prior order to defer deportation for millions of illegal immigrants. Led by Texas, about 26 states said that Obama went too far with the 2014 order. A federal judge already put the order on hold until the court makes a decision.
- Obamacare: A group of nuns wants to challenge Obamacare’s compromise surrounding birth control coverage. The case Zubik v. Burwell focuses on whether religious nonprofits such as charities and universities can get an exemption to the birth control mandate in the Affordable Care Act. A lower court found the compromise wasn’t a burden.
Some of those cases may be returned to a lower appeals court for “clarification,” or the 8 justices may decide to rule along narrow grounds.
There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings. In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions. It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.
There are enough Senate Republicans who will be absolutely adamant that no justice be confirmed before the next president takes office so that no matter what some other Republicans may want, there is no chance that Obama will get to name Scalia’s replacement — unless the president uses his recess appointment powers. (Note: Republicans have foiled several Obama recess appointments by technically keeping the Senate in session.)
But with that comforting thought comes the realization that the damage to conservative causes will be significant because of the 8-justice court and the lost voice of a great jurist whose impact on history would only have grown if he lived.