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How Scalia's Death Impacts the Most Important Pending Supreme Court Cases

The future of the United States Supreme Court, and the hundreds of millions of people affected by its decisions, has just changed.

By Bob Egelko

The future of the United States Supreme Court, and the hundreds of millions of people affected by its decisions, has just changed.

The death of Justice Antonin Scalia, leader of the court's dominant conservative bloc, impacts pending cases on issues such as abortion, immigration and the viability of public employee unions. Over the longer term, a shift in the court's majority could reshape rules that govern some of the fundamentals of the democratic process, such as campaign financing and voting rights. A newly composed court could also revisit the death penalty and access to firearms.

Most immediately, the sudden vacancy on the court turns an ongoing partisan conflict over judicial confirmations into a clash with repercussions for the presidential election as well as the judiciary.

Even before President Obama announced his intention Saturday to nominate a successor to Scalia, Senate Majority Leader Mitch McConnell had declared that the vacancy should await the next president. "The American people should have a voice in the selection of their next Supreme Court justice," said McConnell, R-Ky., a position promptly endorsed by Republican candidates at Saturday night's debate.

The impending blockade infuriated Democrats but should not have come as a surprise. Last year, according to a report by the liberal Alliance for Justice, the Republican-controlled Senate confirmed only 11 of Obama's judicial nominees and just one nominee to a federal appeals court, left 70 judicial seats vacant, and even blocked votes on some Obama candidates who had been recommended by their state's Republican senators.

And that was without use of the filibuster, which allows 41 of the 100 senators to block Senate votes on pending nominations or legislation. In 2013, the then-majority Democrats abolished filibusters for most presidential nominees, including candidates for lower courts, but kept them for Supreme Court appointments.

Deadlocks expected

So for now, and most likely for the year, the Supreme Court is down to eight members, raising the prospect of 4-4 deadlocks on some of the most important cases in the 2015-16 term, which runs through June. A tie vote leaves the lower-court ruling in place, ending the case without fulfilling the high court's usual task of establishing nationwide legal standards.

One potential exception is the immigration case, a challenge by 26 Republican-led states to Obama's November 2014 executive order that would grant a three-year reprieve from deportation to immigrant parents of U.S. citizens or legal residents -- if the parents had no serious criminal records -- and allow them to apply for work permits. It would also expand an earlier program halting deportation of immigrants who were brought to the United States illegally as children. More than 4 million immigrants would be affected.

A 4-4 vote would leave in place a lower-court ruling that found the president exceeded his authority and barred enforcement of his order nationwide. But the issue could return to the Supreme Court if a future Democratic president issued a similar order. It's also possible that one or more conservative justices will decide the states lacked legal authority to challenge Obama's order because they failed to show it would cause them tangible harm.

A Supreme Court deadlock, on the other hand, would be a huge victory for unions of teachers and other government employees whose right to collect dues from nonmembers whom they represent was challenged in a California case.

Impact on labor

During oral arguments last month, a conservative majority appeared ready to decide that allowing the unions to collect fees from nonmembers for the costs of representing them violated the nonmembers' freedom of speech, a potentially major financial and political blow to organized labor. A 4-4 vote would leave in place not only the lower-court rulings in the unions' favor but also a 1977 Supreme Court ruling that allowed the "agency shop" fees.

Other cases with potential tie votes include:

  • An abortion case, scheduled for argument next month, over a Texas law that would close most of the state's abortion clinics by requiring them to follow hospital standards and employ only doctors with admitting privileges at nearby hospitals. An appeals court upheld the law, so a Supreme Court deadlock would let Texas enforce it and allow other states in the same appellate circuit to enact similar laws.
  • A Republican-backed lawsuit, also from Texas, that seeks to redraw state and local election districts nationwide so that they represent equal numbers of registered voters rather than the general population. The case could have a major impact in states such as California that have large numbers of noncitizen immigrants who are ineligible to vote. A tie vote would preserve the current population-based system, upheld by lower courts.
  • Yet another Texas case, challenging any consideration of race in public college enrollment. California already prohibits such affirmative action under a 1996 ballot measure, Proposition 209, but the Supreme Court, and lower courts in the Texas case, have allowed state schools to take race into account to promote diversity on campus.
The court's composition has also become a leading issue in the presidential election.

Scalia's death has given new urgency to warnings from Republicans such as Ted Cruz that the nation is "one justice away" from eliminating the constitutional right to possess guns for self-defense, granted by a Scalia majority opinion in 2008. It could also give Hillary Clinton, if elected, a chance to carry out her pledge to nominate justices who would overturning the court's 5-4 rulings weakening the Voting Rights Act and allowing corporations to contribute unlimited sums to political causes.

Death penalty question

A liberal majority could also take a new look at the death penalty, whose constitutionality was questioned last year in a dissenting opinion by Justices Stephen Breyer and Ruth Bader Ginsburg. And Obama's executive order to reduce global warming by limiting coal plant emissions, blocked by the Supreme Court in one of Scalia's final votes, could return to the court if reissued by a new Democratic president.

In recent months, several conservative groups have said they preferred a deadlocked court to one with a liberal majority. Hours after Scalia's death, the conservative Federalist Society -- whose members have included Scalia and two of his colleagues -- issued a statement recalling that the Senate, during John Tyler's presidency in the 1840s, rejected nine of his Supreme Court nominations and left one seat vacant for more than two years.

With the current political composition, confirmation of a Supreme Court candidate "is impossible now, and will be difficult even after the election," said Michael McConnell, a Stanford law professor and former federal appeals court judge.

Carl Tobias, a University of Richmond law professor and court commentator, contends that the Senate -- whose constitutionally prescribed role is to "advise and consent" on court appointments -- has an obligation to give an Obama nominee a hearing and an up-or-down vote. The public is unlikely to tolerate a shorthanded and deadlocked court for long, Tobias said, and Republican leaders are risking a "constitutional crisis."

(c)2016 the San Francisco Chronicle

Caroline Cournoyer is GOVERNING's senior web editor.
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