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Supreme Court Leans Left In The Wake Of Antonin Scalia's Death

All things considered, this was a good term for liberals and progressives. But anyone thinking that more smooth sailing lies ahead should be advised that the court's current 4-4 split, which presently tilts leftward on many topics, won't last long.
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Supreme Court of the United StatesUnited States Supreme Court in Washington DC with Blue Sky background
Supreme Court of the United StatesUnited States Supreme Court in Washington DC with Blue Sky background

The Supreme Court's just-completed October 2015 term was supposed to mark a dramatic comeback for the tribunal's once-dominant contingent of five conservative justices.

After taking it on the chin in the previous term on a variety of hot-button issues, including same-sex marriage, the legality of Obamacare's income-tax credits and racial discrimination under the Fair Housing Act, conservatives were thought to have a 5-4 voting advantage on a slew of new politically charged cases this time around.

With the panel's resident firebrand--Justice Antonin Scalia--leading the charge, the big question was whether the court's right flank would hold together as it tackled new appeals on affirmative action, public-employee unions, Obamacare's contraception mandate, presidential powers over deportation policy and abortion rights.

But before any of the most controversial decisions were rendered, Scalia died in his sleep in February while on a hunting vacation. His passing was without question a defining moment, and a historical watershed. Combined with the Senate's refusal to hold hearings on the president's nomination of a successor--District of Columbia Circuit Court Judge Merrick Garland--Scalia's demise left the court in a potentially crippling 4-4 ideological stalemate.

From a judicial standpoint, stalemate is rarely a good thing, especially in the halls of the nation's most powerful legal body, which is tasked with providing the final answers to the most pressing questions of constitutional law.

Basically, when the Supreme Court divides evenly in a case, it has three options: It can defer rendering a decision and hold the matter over until it can be reconsidered the following term. It can refrain from issuing a decision on the merits and remand a case back to the lower courts. Or it can issue a one-sentence "per curiam" order, declaring simply that the judgment of the lower court is affirmed--an outcome that establishes no new legal precedent and in effect operates to leave the lower-court ruling intact.

So how did the dynamic of an eight-member court play out sans Scalia? Here's my scoreboard for the term's biggest opinions.

The 4-4 Decisions

With Scalia gone, the court issued four evenly split per curiam affirmances. Three came in major cases, two of which resulted in liberal victories and one in a conservative win.

The biggest liberal gain concerned public employee unions and so-called "fair-share" fees in Friedrichs v. California Teachers Association, decided in March. Friedrichs was the third time since 2012 that the court had been asked to determine whether assessing partial fair-share fees in lieu of full dues on nonunion employees to help cover the costs of collective bargaining amounted to coerced speech in violation of the First Amendment.

Given the tenor of the oral argument conducted in January, when Scalia was still alive and irascible as ever, the union seemed poised to sustain a crippling defeat. But in his absence, the panel deadlocked. The association's victory before the Ninth Circuit was preserved, and the fair-share system and public unionism as a whole averted a massive setback.

Another liberal win was chalked up in Dollar General Corp. v. Mississippi Band of Choctaw Indians, a case argued in December but not decided until late June. Unable to form a majority, the court's 4-4 tie permitted a Fifth Circuit decision to stand that broke new legal ground, recognizing the authority of a Native American tribal court to hear a civil suit for sexual abuse against a major corporation operating on trial land.

Conservatives, however, picked up a crucial win in United States v. Texas, a volatile 26-state challenge to President Barack Obama's executive actions calling for deferred deportation of the undocumented parents of U.S. citizen children and lawful permanent residents, and the expansion of an earlier program aimed at deferring the deportation of specified classes of undocumented youth. The court's 4-4 tie effectively reinstated a nationwide federal district court injunction against the executive actions, placing a staggering 5.5 million immigrants at risk of deportation.

The court was also unable to reach a merits decision in another set of high-profile lawsuits dealing with the application of Obamacare's contraception-coverage mandate to religious nonprofit organizations, colleges and schools. Although not formally expressed as a 4-4 tie, the court punted on the cases and by a unanimous 8-0 vote sent the parties back to the lower courts with instructions to find a way to reach a settlement.

The Liberal Landmarks

Scalia was gone but not forgotten in the two biggest liberal decisions of the term: Fisher v. University of Texas at Austin, on affirmative action, and Whole Woman's Health v. Hellerstedt, on abortion rights.

Fisher concerned a challenge to the University of Texas' race-conscious affirmative action plan. The case had been before the panel previously, but in 2013 was sent back to the Fifth Circuit for additional fact-finding, courtesy of a 7-1 majority opinion authored by Justice Anthony Kennedy, with Scalia concurring, and Justice Elena Kagan recusing herself due to prior participation in the litigation while she was solicitor general during Obama's first term in office.

The case came back to the high court after the Fifth Circuit once again approved the Texas program.

In a second round of oral arguments last December, Scalia viciously attacked the Texas program, famously remarking: "There are those who contend that it [affirmative action] does not benefit African-Americans to ... get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a ... slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they are being pushed too hard in classes that are too fast for them."

With Kennedy again writing for a 4-3 majority (Kagan remained on the sideline), the court upheld the Texas plan in a decision released Thursday. In sharp contrast to Scalia, Kennedy celebrated the values of academic diversity in breaking down racial stereotypes and preparing students for an increasingly multicultural economy and society. "Considerable deference," he wrote, "is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission." It was the first time Kennedy had opted in favor of a race-conscious affirmative-action plan.

On abortion, Justice Stephen Breyer took the honor of penning the majority 5-3 opinion in Whole Woman's Health, released last week. The decision struck down an omnibus Texas statue, known as HB2, that would have required abortion clinics to meet the physical specifications of ambulatory surgical centers and clinic doctors to have hospital admitting privileges. Together, the requirements would have forced at least half the state's clinics to close.

Rejecting Texas' contention that HB2 was designed to protect women's health, Breyer concluded that the state had presented no evidence to show that abortions routinely performed in doctors' offices and outpatient clinics are unsafe. To the contrary, he observed: "[I]n the face of no threat to women's health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity super-facilities."

Going even further, Justice Ruth Bader Ginsburg declared in a smoldering concurrence, "It is beyond rational belief that HB2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions.' "

Both Ginsburg and Breyer reasoned that the Texas law ran afoul of both of the court's foundational abortion precedents--Roe v. Wade from 1973, and Planned Parenthood v. Casey from 1992--because it placed an undue burden on the constitutional right of women to safe and legal abortions.

Ginsburg also left no doubt that similar legislation across the country targeting abortion clinics and providers under the ruse of safeguarding women's health would not "survive judicial inspection." Indeed, the day after deciding Whole Woman's Health, Ginsburg and her colleagues let two appellate court decisions stand that had blocked abortion restrictions in Mississippi and Wisconsin.

In addition to affirmative action and abortion, liberals tallied important victories in the areas of redistricting in Evenwel v. Abbott and domestic violence in Voisine v. United States.

In Evenwel, the court held unanimously that Texas could base its state voting maps on total population (a liberal metric that includes children and noncitizens) rather than on registered voters, generally a more conservative subgroup in the Lone Star State. In Voisine, by a margin of 6-2, the court upheld a lower-court judgment prohibiting people convicted of misdemeanor crimes of domestic violence from legally purchasing firearms.

The Death Penalty and Juvenile Justice

Before his death, Scalia voted along with seven other justices in January in Hurst v. Florida to overturn Florida's death-penalty sentencing procedures because they unconstitutionally limited the role of juries in capital cases and improperly expanded the powers of trial judges.

Scalia, however, was the author of an 8-1 decision (Kansas v. Carr), also issued in January, that upheld the Kansas death-penalty statue. He took no part in the balloting in Foster v. Chatman, decided in May, in which the court held that a black Georgia death-row inmate's conviction had been unconstitutionally tainted by racial discrimination in jury selection.

In the year's most significant juvenile justice case (Montgomery v. Louisiana), decided in January, Scalia scripted an acerbic dissent from the court's decision to overturn a mandatory sentence of life without the possibility of parole (LWOP) that had been imposed on an aged defendant who had been incarcerated since 1963 for killing a deputy sheriff. The court's majority opinion brought Montgomery's case into line with contemporary decisions that found LWOP sentences for juvenile offenders unconstitutional under the Eighth Amendment.

Conservative Triumphs

The current term was not without conservative victories, even without Scalia.

In Utah v. Strieff, on a division of 5-3, the court validated the drug-possession conviction of a Salt Lake City man who had been illegally detained by a local police officer and then subsequently searched when the officer learned the man had an outstanding arrest warrant for a minor traffic violation. The search turned up drug paraphernalia and one baggie of methamphetamine.

The majority opinion, written by Justice Clarence Thomas, weakened the reach of the longstanding "exclusionary rule" and the "fruit of the poisonous tree" doctrine, which prohibit the introduction of evidence obtained in violation of the Fourth Amendment. Justice Breyer, regrettably, joined Thomas. Justice Sonia Sotomayor lodged a scathing dissent, protesting that illegal police detentions plague minority communities throughout the nation.

In perhaps the most important conservative win, all eight justices voted to vacate the political corruption conviction of former Virginia Gov. Robert McDonnell, who had been indicted for accepting $175,000 in loans, gifts and other benefits from Republican businessman Jonnie Williams, in return for official acts favorable to Williams' business interests.

Writing on behalf of the entire court, John Roberts held that the state had failed to show a "quid pro quo" relationship between Williams' gifts and the alleged official acts of corruption. Although Roberts never cited the court's 2010 Citizens United decision on campaign finance, his narrow construction of the concept of political corruption paralleled the narrative adopted in Citizens United.

Looking Ahead to Next Year and Beyond

All things considered, this was a good term for liberals and progressives. But anyone thinking that more smooth sailing lies ahead should be advised that the court's current 4-4 split, which presently tilts leftward on many topics, won't last long.

As I have written in this column before, like it or not, the next president will have the opportunity to reshape the court for a generation. Scalia is gone already, and Justices Ginsburg and Kennedy will be in their 80s come Election Day. Justice Breyer will be 78.

Barring some sort of political earthquake, that means that either Hillary Clinton or Donald Trump will get to name as many as four new justices (or possibly five, if recent rumors that Thomas is considering retirement have any basis). No matter whom you intend to vote for, that is an awesome prospect that no one can ignore.

[This column was originally published by]

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