The sudden injection of a Supreme Court nomination battle into the midst of the presidential primaries hugely raises the stakes for November and reinforces the need for maximum unity to defeat the right wing. With the GOP and its Tea Party extremists already vowing to block any Obama replacement of Justice Antonin Scalia, it becomes clear that progressives face a tough road ahead. Beyond the consequences for the election, however, Scalia’s death also immediately transforms the dynamics surrounding a number of pending SCOTUS decisions.
Scalia was part of a 5-member conservative majority, so with his passing, many contentious cases that were expected to be decided by a close vote are now thrown into uncertainty by the 4-4 split. Any votes already cast by Scalia in cases where a decision has not yet been publicly announced will now be voided. In any case which SCOTUS now delivers a deadlocked vote, one of two things will happen: either the ruling of the lower courts will stand, or the SCOTUS will require the cases to be reargued once a new justice joins the court. The implications of either procedural reality are potentially huge.
The expected outcomes in a number of pending cases important to progressives – including the survival of public sector unions, the legal status of five million undocumented immigrants, and women’s access to reproductive services – all now require a second look.
Friedrichs – Public sector unions live another day?
Probably the biggest SCOTUS decision that will be altered with Scalia’s passing is the ruling that was expected in the landmark Friedrichs v. California Teachers Association. After oral arguments were heard in January, many labor legal analysts concluded that the Court was certain to overturn a lower court ruling (as well as a 1977 SCOTUS ruling) allowing public sector unions to collect “fair share fees.”
These are fees collected from non-union members in order to cover the costs for services performed for all the workers at a workplace. Opponents argued that if unions use any of the money from these fees for political action purposes, they are violating non-members’ freedom of speech.
Perhaps surprisingly, given his long record as a right-wing justice, Scalia was originally predicted to be a potential ally to the unions in Friedrichs, as his comments in a similar case in 2014 had displayed skepticism about the legal argument against the collection of fair share fees. But when Scalia spoke during the Friedrichs arguments, it became clear that he was no ally to unions this time. This left many observers from the labor and legal community pessimistic about the future of public sector unions’ funding and political organizing capacities.
Labor attorney Moshe Marvit warned of a negative outcome for unions in January, saying, “They could next argue that by collectively bargaining, [the] unions somehow violate workers’ speech rights… I think the unions are going to keep getting attacked…I don’t think it ends here.”
Following the announcement of Scalia’s death on Saturday night, Marvit tweeted, “Without Scalia, Friedrichs will probably go 4-4, which means that the 9th Circuit ruling stands. Labor may have just gotten a huge reprieve.”
If he is correct about the 4-4 split, or if a union-friendly Obama nominee is confirmed and the case is reargued, then a reprieve is exactly what it amounts to. If the Friedrichs case goes against the unions, they could be crippled. Without enforcing the payment of fair share fees by non-members, the resulting free-rider problem would be tantamount to declaring the whole public sector across the United States a “right-to-work” zone.
Obama immigration actions in limbo
Another decision thrown into uncertainty with Scalia’s death is the upcoming case United States v. Texas, which is a legal challenge to President Obama’s November 2014 executive actions on immigration. Under Obama’s order, up to five million currently undocumented immigrants who have lived in the U.S. for at least five years would be allowed to apply for legal status. It also includes the DREAMers, younger immigrants brought to the U.S. as children by their parents.
When a federal district judge ordered a halt to the implementation of Obama’s plan, the government appealed. A conservative panel of judges on the U.S. Court of Appeals upheld the lower judge’s order, thus leading the government to appeal the case up to the Supreme Court.
In defiance of his reputation as a reliable right-winger, Scalia may possibly have been a swing vote in deciding the case. The Department of Homeland Security’s Jeh Johnson had cited Scalia in a memo defending Obama’s plan back in November 2014. In the memo, Scalia’s majority opinion from a 1999 decision involving the deportation of eight Palestinians is quoted, where he said that “the Executive has discretion to abandon the endeavor” of removing foreign nationals at any stage of the deportation process.
If Scalia stuck to the logic he followed in this earlier case, he might have cast a vote to allow Obama’s immigration order to finally be implemented. If a 4-4 split now occurs, the ruling of the conservative Fifth Circuit Court of Appeals panel will stand, blocking the President’s plan. Unlike Friedrichs, this time the deadlock would not break in favor of progress.
The case could become further complicated, however, if a different circuit court produces an order saying the executive actions are constitutional. When appeals courts issue competing orders, it is usually up to SCOTUS to break the legal logjam. With a divided court, no decision is possible, thus leaving the whole situation in limbo unless or until the case can be reargued once a justice is seated.
Reproductive rights cases
Another case out of Texas dealing with women’s right to access abortion services is now also facing an unpredictable outcome due to the sudden vacancy on the bench. In an attack on reproductive rights disguised as a health regulation, the Texas legislature passed a law in 2013 that imposed admitting privileges on abortion doctors and required sham architectural provisions on clinics. This was done supposedly in the interest of public health. In essence, however, the law was meant to overturn Roe v. Wade in every practical way by setting standards virtually impossible for clinics to meet.
If five of the remaining eight justices vote to uphold the Texas law, states will be given broad authority to pass new laws further restricting access to abortion services. Even if a split occurs, the Texas legislation could still remain in place, and a woman’s right to choose will depend on what state and federal appeals circuit she happens to live in-unless and until the case is reargued.
So unless five justices vote to overturn the lower ruling, the only path that remains for challenging the Texas restrictions would be if SCOTUS decides to reargue the case.
Zubik v. Burwell, a follow-up to the Hobby Lobby case which saw the arts and crafts giant refuse to provide its women employees contraception coverage under its health care plan, faces a similarly uncertain outcome. Conflicting decisions among federal appellate circuits also sent this case to the Supreme Court, but a split bench (or a 5-3 conservative vote with Kennedy switching sides) would also potentially result in uneven access to reproductive rights on a state-by-state basis.
Nominations and November
The GOP is digging in its heels to block Obama from nominating a replacement for Scalia, hoping that they can hold out for a President Trump, Rubio, or Cruz to make the pick. The White House has declared its intention to move ahead with the nominations process. No matter the outcome of this immediate battle though, the delicate balance of votes in the cases outlined above show how heavily progress depends on who chooses the members of the Court. This is even more true if the Court decides to re-hear arguments in all the close cases once a new justice is seated.
If anyone needed a reminder of just how important it is to keep the GOP out of the White House, Scalia’s death should be enough to do the trick.
Do we even want to contemplate the kind of Supreme Court Justice that one of the current crop of GOP presidential candidates might nominate to the Supreme Court? Given how far the Republican Party has shifted to the right since Reagan appointed Scalia in 1986, it doesn’t take much effort to imagine someone even more extreme being put forward today.
Obama might be able to get a nominee through the Senate to fill Scalia’s seat, but it will take a mobilization of progressive forces to push the GOP during the confirmation process. Beyond that, we should not forget that the next president will almost certainly be filling a few more.
Let’s make sure we don’t get another Scalia – or worse.
Photo: Republican Senate Majority Leader Mitch McConnell announcing that his party will not, for the remainder of President Obama’s term, meet its constitutional responsibility of approving a nominee to fill the Supreme Court vacancy. | AP