After Scalia: how the Supreme Court fared without its most vocal justice
The quiet death of the Supreme Court’s most vocal justice changed the result of only a few decisions, but the loss of Justice Antonin Scalia midway through the 2015-16 term cast a pall that will hang over the court through the presidential election and beyond. The nation’s political polarization, the Senate’s failure to act on Judge Merrick B. Garland’s nomination and dissatisfaction with Supreme Court decisions from both the right and left guarantee that the appointment of the next justice will be a major campaign issue.
It is impossible to truly judge the impact of Justice Scalia’s absence from the bench and on behind-the-scenes debate and compromise. By simple numerical count, however, his death did not affect many decisions. One-vote majority opinions make the headlines because they decide controversial issues, but most Supreme Court decisions are made by a clear majority. Of the 80 opinions issued this term, 63 were ruled on without Justice Scalia, but only four were determined by one vote. In another four cases the court was unable to reach a decision because of a tie.
A tie maintains the status quo. Lower court decisions that are not reversed by a majority of the Supreme Court are summarily affirmed, but the outcome is not nationally applicable. Of the four cases that were tied, only one, Friedrichs v. California Teachers Association, clearly would have had a different outcome had Justice Scalia lived. The lower court in Friedrichs applied a previous Supreme Court ruling that required public employees who are not union members to pay union agency fees. The case was argued before Justice Scalia’s death, and his questions indicated he would have joined his conservative brethren and ruled the requirement a violation of employee First Amendment rights. In the other three tied cases, it is probable he would have voted to uphold the lower courts’ decisions.
Quite possibly the greatest impact Justice Scalia’s death had on cases this term was the court’s decision not to hear an appeal. The Supreme Court picks and chooses the cases it hears by granting or denying petitions for certiorari (review). Four votes are needed to accept a case. The petition for review in Stormans, Inc. v. Wiesman was ruled on after Justice Scalia’s death; only three justices voted to grant review, which means the lower court ruling stands. The case involves a family-owned pharmacy and individual pharmacists who object to filling prescriptions for emergency contraceptives. A Washington State regulation prohibits a pharmacy from refusing to “deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” The U.S. Court of Appeals for the Ninth Circuit rejected the pharmacists’ First Amendment claims. It is probable that Justice Scalia would have joined Chief Justice Roberts and Justices Alito and Thomas in voting to grant review. Nevertheless, while the decision not to hear the appeal is a blow to the individual plaintiffs, religious rights advocates generally would agree that no decision by the Supreme Court is better than an adverse one.
Zubik v. Burwell, which was argued and decided after Justice Scalia’s death, challenged the Affordable Care Act’s contraceptive mandate as applied to religious employers who objected to applying for the government exemption. The court avoided what might have been a 4-to-4 tie by agreeing 8-to-0 to send the consolidated cases back to the lower courts to fashion opt-out provisions acceptable to all parties. The decision was praised by the Becket Fund as a win for religious liberty.
The lower court in United States v. Texas issued a preliminary injunction against the Obama administration’s executive action on immigration. These initiatives (the Deferred Action for Parents of Americans and Lawful Permanent Residents and the expanded Deferred Action for Childhood Arrivals policies) would have given certain undocumented immigrants a temporary right to work as well as a reprieve from the threat of deportation. The U.S. Conference of Catholic Bishops submitted an amicus brief in support of the programs, but the Supreme Court split 4 to 4, which leaves the injunction prohibiting implementation in place. The lower court determined the policy was not properly promulgated as required by the Administrative Procedure Act, but it did not find that the programs are inherently impermissible. The decision did not affect the original DACA program, which is in effect and currently benefits approximately one million immigrants, but must be renewed by the next president. The future of immigration reform is not in the courts but in the hands of the voters, as we elect a new president and Congress.
Whole Woman’s Health v. Hellerstedt invalidated a Texas law requiring abortion clinics to meet ambulatory surgical center standards and their doctors to have admitting privileges at nearby hospitals. The U.S.C.C.B. submitted an amicus brief in support of the Texas law and the health benefits it affords women seeking abortions. A majority of the court, in an opinion written by Justice Breyer, disagreed and held that the law impeded rather than benefitted proper care and was an undue burden on the right to an abortion. The 5-to-3 decision was strongly criticized by the dissenting justices who would have denied the appeal on procedural grounds, but also disagreed with the majority’s wholesale rejection of the enacted safety standards. While some provisions of the law, like those requiring specific room dimensions and one-way traffic patterns, are not required for patient health, others, like those prohibiting “misleading advertising” and requiring patients to “be treated with respect, consideration, and dignity,” are beneficial and pose no burden. As Justice Alito wrote, “[f]ederal courts have no authority to carpet-bomb state laws, knocking out provisions that are perfectly consistent with federal law, just because it would be too much bother to separate them from unconstitutional provisions.” Whether rightly or wrongly decided, the majority opinion is controlling. The Supreme Court has put pro-life advocates and legislators on notice not to overreach when drafting future legislation.
The court heard a number of other notable cases, particularly concerning environmental laws, voting rights and criminal justice.
Environmental Protection. The court stayed the Obama administration’s Clean Power Plan pending lower court review, but permitted the Environmental Protection Agency to enforce certain clean air regulations despite a finding last term that they must be re-evaluated. The court also ruled in favor of the Federal Energy Regulatory Commission’s efforts to manage the nation’s power grid when it upheld “demand-response pricing”—a program to pay utility users to reduce their consumption at peak times—and let stand an E.P.A.-administered Chesapeake Bay cleanup plan.
Voting and Redistricting. The right to vote is greatly diminished when districts are gerrymandered to dilute the power of individual voters, but drawing district boundaries is an inexact science. Districts need not be the same size and minor population differences are tolerated. The court issued unanimous decisions in several redistricting cases this term. In a case from Arizona, the court ruled a redistricting plan was constitutional because political party benefits were incidental rather than intended. In Evenwel v. Abbott the court rejected a claim by Texas voters that state districts should be based on the number of eligible voters rather than on the general population. Justice Ginsburg wrote, “We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population.” A challenge to Virginia’s redistricting was rejected because the members of Congress who brought the suit had no standing as they did not demonstrate actual injury.
As of this writing, the Fifth Circuit is in the process of rendering an en banc (full court) decision regarding a challenge to a Texas law that requires voters to present unexpired government-issued photo IDs. The trial court and a three-judge panel of the Fifth Circuit ruled the law violated Section 2 of the Voting Rights Act, but a majority of the circuit’s judges voted to review that determination and stayed the district court’s injunction of the law. The party that loses the rehearing undoubtedly will apply to the Supreme Court for relief. Voter ID law challenges from North Carolina, Virginia and Wisconsin also must be decided before the November elections.
Criminal Justice. The criminal cases decided this term illustrate that justice is elusive. Horrific acts of violence sometimes are followed by prosecutorial and judicial errors that may lead to wrongful convictions or unwarranted punishment. The Constitution establishes procedural safeguards, but compliance is imperfect and requires constant vigilance.
The court affirmed that juries, not judges, must make every decision necessary to impose the death sentence. The court denounced overt racism in the jury selection process when it reinstated the appeal of an African-American defendant who was sentenced to death after the prosecution deliberately excluded African-Americans from his jury. In another case, the court held that a potential juror’s expression of doubt concerning the morality of capital punishment and uncertainty regarding his ability to vote for the death penalty provide sufficient cause for the prosecutor to strike him from the jury pool.
In an unusual judicial recusal case, the court upheld the due process right to a fair appeal when it vacated a decision of the Pennsylvania Supreme Court because its chief justice previously served as the prosecutor who approved seeking the death penalty against the defendant. Another death sentence was overturned when the court threw out a conviction because the prosecutor failed to disclose potentially exculpatory information to the defense. The most important sentencing decision made by the court this term grants state inmates the right to appeal mandatory life sentences for crimes they committed as juveniles.
The court strengthened the right to counsel by prohibiting pretrial seizure of assets not obtained through illegal means. A different result would have deprived defendants of funds necessary to pay legal fees. The Fourth Amendment right against unreasonable searches and seizures was further clarified when the court held that police may administer a warrantless breathalyzer test, but not a warrantless blood test, pursuant to drunk driving arrests.
In Caetano v. Massachusetts, the court indicated that ownership of a stun gun may be protected by the Second Amendment when it vacated a state court decision that upheld a ban on stun guns. The court made it clear the Constitution protects new, as well as old, forms of weaponry.
In one of the last cases decided by the court this term, McDonnell v. United States, a unanimous court vacated the conviction of the former governor of Virginia and determined that arranging meetings, hosting events and contacting other officials to discuss favors for one’s beneficiary do not constitute “official acts” and thus are not illegal under federal fraud and anti-corruption statutes.
The Senate’s refusal even to consider President Obama’s nominee to fill the Supreme Court vacancy ensures that the court will continue to operate understaffed for most, if not all, of its next term. Chief Justice Roberts and the remaining justices did an admirable job reconciling their differences and finding consensus in almost all the cases they decided after Justice Scalia’s death; but the longer the court is kept to an even number, the more likely it is that it will be unable to fulfill its role as the third branch of government, keeping checks and balances on the states, Congress and the president. As Alexander Hamilton wrote in Federalist No. 80, “There ought always to be a constitutional method of giving efficacy to constitutional provisions. If there are such things as political axioms, the propriety of the judicial power of a government...may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.”