by David Ramsey
Scalia was a near certain vote in favor of upholding the Texas law. Without him, things get a bit more complicated. But the key thing to know is this: without Scalia, its very hard to see a world where the Supreme Court affirms the Texas law's constitutionality.
Here's why: there are near-certainly four votes against the law from the Court's liberal wing. And it's possible there are five votes, as justice Anthony Kennedy has been a swing vote on abortion cases.
The best case outcome, then, for the abortion rights opponents, is a 4-4 tie. In that case, the ruling of the circuit court is upheld without setting any constitutional precedent.
This would let the Texas law stand, since the Fifth Circuit Court of Appeals ruled in favor of the restriction. But it also wouldn't give other states the clear signal that these types of restrictions are constitutional — something that abortion opponents would very much like to see.
The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.
Even if the Senate does not confirm any successor, then, Scalia’s absence alone reshapes the Court. Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising — or, more precisely, resurrecting — theories that allow the Court to strike down vast swaths of laws conservatives find objectionable. Activist Courts require a majority. That is now gone.
United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
Geography could also play a significant role in deciding women’s ability to access birth control. To date, every federal appeals court to consider the question but one, the Eighth Circuit, has upheld Obama administration rules enabling women to obtain health plans that cover birth control even if their employer objects to contraception on religious ground.
There is a good chance that Justice Anthony Kennedy, a conservative who occasionally votes with the Court’s liberal bloc in politically charged cases, could vote to uphold these rules as well, producing a 5-3 vote. If Kennedy votes with the conservatives, however, women’s access to birth control will vary from circuit to circuit. Though it is likely that most circuits will follow the majority rule and uphold the rules, women in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) will not be as lucky.
Public sector unions are saved, at least for now. After oral arguments in Friedrichs v. California Teachers Association, it appeared likely that an ambitious effort to defund public sector unions would gain five votes on the Supreme Court. Now this effort only has four votes. Moreover, because the plaintiffs in this case lost in the court below, a decision affirming the lower court in an evenly divided vote is effectively a victory for organized workers.
Similarly, the plaintiffs in Evenwel v. Abbott, a case that could have effectively forced many states to redraw their congressional maps in ways that would give more power to white voters and less to communities with large numbers of immigrants, almost certainly will not have five votes. Because the court below ruled against these plaintiffs, states will not have to redraw their maps, for now.