Susan Milligan

/ Legal Issue 2017

Justice Antonin Scalia was a powerful influence on the Supreme Court, serving as one of its most ardent and intellectual conservative voices. Even after his startling death in February 2016, the late justice continues to have an influence on the high court.

Without Scalia, the court found itself at an impasse on several critical cases in 2016, leaving lower courts and litigants without a definitive ruling on such politically loaded matters as contraception, immigration, and public-sector unionization. A fourth case, involving affirmative action, likely would have been deadlocked if Scalia had cast a vote, resulting in the same ruling, but without precedent-setting authority. And court-watchers also believe the high court slow-walked its acceptance of cases to hear, aware that some would result in 4–4 ties.

As the election approached, “it seems like they are filling their docket at a slower pace,” said Stephen Wermiel, professor at the American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court. While it’s unknown why the court chose not to hear certain cases (or even why some would-be appellants chose not to petition the court), “the slower pace presumably is at least in part because they are worried about avoiding 4–4 ties,” he says.

About half of Supreme Court decisions are decided unanimously, Justice Stephen Breyer noted on MSNBC’s “Morning Joe” in October, playing down the drama of the divided, even-numbered court. And just about a fifth is decided by a 5–4 vote, with the swing vote varying, he added. “I know that [the news] profession believes they’re all the most important, but for the average person, I would say some are pretty important, of course. But I would say a lot of those unanimous cases are also very, very important,” he added.

Still, there’s no dispute that the absence of a ninth justice had an impact on justice in America.

On immigration, President Barack Obama was dealt a major blow when the high court upheld 4–4 a lower court ruling, upending his Deferred Action for Parents of Americans program. Created through executive order, Obama meant the program to protect the undocumented parents of U.S. citizens from deportation and would have allowed them to work legally. It would have affected up to five million undocumented immigrants.

A coalition of 26 states, led by Texas, challenged the plan, arguing that the president had unconstitutionally gone around Congress to get his way on a topic that was at a legislative impasse. A federal district court judge issued an injunction halting the program, and the injunction was upheld on appeal by the United States Court of Appeals for the Fifth Circuit. When the Supreme Court was faced with a government appeal in the case United States v. Texas, it upheld the injunction. While the votes are undisclosed (the high court does not reveal individual votes on 4–4 decisions), court watchers believe an Obama-appointed justice would have backed the administration. Since the tie ruling does not set precedent, it is likely the matter will come back to the court when it is at full strength.

Organized labor, meanwhile, got a legal break because of Scalia’s death. The case Friedrichs v. California Teachers Association challenged a decades-long precedent that says public employees can be required to pay an “agency fee” to the union representing them even if they do not themselves join the union. The money is to cover the cost of items like collective bargaining that have implications for the entire public workforce, even those who choose not to join the union.

The United States Court of Appeals for the Ninth Circuit in San Francisco upheld the collective bargaining fee, and the plaintiff, teacher Rebecca Friedrichs, appealed to the high court. Court observers were confident after January oral arguments that the appeals court ruling would be overturned, delivering a devastating hit to public sector labor unions. But without Scalia, the court was deadlocked 4–4, giving an important (but not precedent-setting) win to the teachers union.

Another Obama initiative, a requirement under the Affordable Care Act that employers cover contraception in their company health care plans, also dodged a bullet because of the divided court. In Zubik v. Burwell, the court was asked to determine whether religious, nonprofit colleges and other employers are exempt from the contraception requirement under the Religious Freedom Restoration Act. Conflicting lower court rulings made the issue ripe for a final decree from the Supreme Court.

But instead of delivering a definitive ruling, the high court punted, telling lower courts that they should give the federal government and employers another chance to work it out themselves. That decision was widely viewed as a way to avoid a 4–4 tie on the matter, a ruling that would have been especially problematic because lower court decisions were inconsistent.

The lower courts could then be faced with another challenge, and the issue might well be in front of the Supreme Court again.

Even hamstrung with the absence of a ninth justice, the high court indeed issued some noteworthy opinions, including:

ABORTION

In its first major decision on the matter in nearly a decade, the Supreme Court struck down a 2013 Texas law that required doctors who perform abortions to have admitting privileges at nearby hospitals and that clinics meet hospital-like standards for outpatient surgery. Texas officials said the law was necessary to protect women’s health, while foes said the law was meant to shut down clinics providing abortions. The rules would have reduced the number of clinics in the state to about 10, making it hard for rural women especially to obtain abortions.

In a 5–3 decision, the high court in Whole Woman’s Health v. Cole struck down those rules, calling them “a substantial obstacle to women seeking abortions” and “an ʻundue burden’ on their constitutional right to do so.”

AFFIRMATIVE ACTION

In another case out of the Lone Star State, Fisher v. University of Texas, the high court upheld affirmative action policies in the public university system. The plaintiff was a white woman, Abigail Fisher, who says she was denied acceptance to the University of Texas in Austin because of her race. Texas’s public university system has a 10-percent rule, allowing admittance to a public university for the top 10 percent of Texas high school graduating classes, with some variation. Remaining students can be admitted on a broader test involving family circumstances, leadership, talent, and race.

The court upheld the constitutionality of the rule by a 4–3 vote. Justice Elena Kagan, who had worked on the case previously, recused herself from the case.

PUBLIC EMPLOYEES

A New Jersey police officer was demoted—unfairly, he said, arguing that the step-down occurred because his superiors mistakenly assumed the officer was backing the mayor’s political opponent. He sued on First Amendment grounds, and the high court, by a 6–2 vote, agreed, saying he had the right to challenge his demotion on the ground that his right to free speech and free association were violated. The case is Heffernan v. City of Paterson.

PUBLIC CORRUPTION

It was the hottest local politics story near the nation’s capital: a former Republican Virginia governor and rumored presidential hopeful, Robert McDonnell, was convicted on corruption charges for helping out an Old Dominion businessman who gave lavish gifts to the governor and his wife. The state allowed gifts to governors, but a jury determined that the exchange amounted to a payoff. The high court vacated his conviction, ruling 8–0 in McDonnell v. United States that prosecutors had used too broad a definition of “official act” to convict the former governor.

CRIMINAL JUSTICE

Timothy Foster, who is black, spent nearly 30 years on death row in Georgia, convicted of murder by an all-white jury. During Foster’s appeal process, documents obtained through an open-records request showed that prosecutors had deliberately eliminated African-American jurors, whose names on the potential juror list were marked with a green highlighter and the letter “B” next to them. The African-American potential jurors were also ranked (as #B1, #B2, #B3) with a note indicating which would be preferable to the prosecution.

The Georgia Supreme Court ruled that the jury selection was not intentional racial discrimination. The high court in Foster v. Chatman disagreed, ruling 7–1 in Foster’s favor. He can now go back to the Georgia Supreme Court and ask for a new trial. The single dissenter in the case was the Supreme Court’s only African- American justice, Clarence Thomas.

In another case involving capital punishment, Hurst v. Florida, the Supreme Court ruled 8–1 against a Florida law that allows a judge to issue a sentence of death on the recommendation (but not unanimous vote) of a jury.

VOTING RIGHTS

Congressional districts are drawn based on the number of residents in each district. But should the borders be determined instead according to the number of eligible voters? No, an 8–0 Supreme Court said in Evenwel v. Abbot. Such districts would exclude
from the equation people who are legal residents but not citizens (and therefore not eligible to vote).