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Scalia’s Death Adds Uncertainty to Blockbuster Term

The death of Justice Antonin Scalia, a strong and passionate conservative voice on the Supreme Court for the past 30 years, will have a significant impact on high-profile cases pending before the court.

The court was expected to be closely divided between conservative and liberal wings, perhaps 5-4, on key cases on abortion, affirmative action, the president’s authority to change immigration enforcement, voting rights and labor union dues.

But the vacancy left by Scalia’s death means those cases could end up 4-4, a result that leaves the lower court ruling standing whether it was conservative or liberal. The Supreme Court would simply issue a one-page order upholding the lower court’s decision because the high court was split. 

With a presidential election in November, the court’s decisions were already likely to become political flash points. The vacancy raises the stakes for candidates from both parties. 

One closely-watched case that had been expected to be 5-4 was over whether public employees have a right to choose not to pay dues but still reap the benefits of collective bargaining and other union activities. A 4-4 split would uphold a lower court decision that required employees to pay those dues.

Scalia’s death also could affect which cases the justices agree to hear in the future, a point underscored by one of the last votes from Scalia to halt implementation President Barack Obama’s signature climate change plan. The court voted 5-4 to stop the EPA regulation while officials from 26 states and companies challenge it in court.

“One of those five votes is gone now,” said appellate lawyer John Elwood, a partner at Vinson & Elkins in Washington. Although that decision stands, Scalia’s death could change the dynamic of the Supreme Court after the U.S. Court of Appeals for the D.C. Circuit decides the case and it is appealed the Supreme Court.

President Barack Obama’s effort to implement his executive action to defer deportation of some undocumented immigrants may be significantly affected by a court without Scalia. Republican lawmakers have been sharply critical of the president, and many states, led by Texas, sought to block the president.

If the justices split 4-4, a lower court order would stand, preventing the policy changes Obama announced in November 2014 that would affect millions of undocumented immigrants. 

The president’s actions would defer deportation for undocumented immigrant parents of U.S. citizens and legal residents, under a program known as DAPA. The actions would also expand a similar program, called DACA, for undocumented immigrants who came to the United States as children.

Another case that could turn out significantly different is one on affirmative action programs. With Justice Samuel A. Alito already recused from the case, only seven justices will decide it, reshuffling the possible outcomes. The justices are grappling with how colleges can improve diversity — and measure success without relying on quotas — in a case testing the University of Texas’ use of race in undergraduate admissions decisions. The major test for affirmative action comes from a white student denied admission.

The court also faces decisions on abortion and the health care law (PL 111-148, PL 111-152)

Scalia could have been writing some of the opinions in cases argued earlier this term, which started in October. It’s possible that those opinions would be released by the court in the near future if the votes were finalized, but “I think pretty much otherwise they have to more or less start over,” Elwood said.

Bottom line: “It’s a big term this year and this throws it into a lot more uncertainty,” Elwood said.

The court could delay hearing some cases until a new justice is appointed, Rick Hasen, a law professor at the University of California, Irvine, wrote on his blog.

“Some of those cases could perhaps be delayed for appointment of a new justice, a justice that could potentially swing the Court from a 5-4 conservative majority to a 5-4 liberal majority,” Hasen wrote. “But that assumes that President Obama could nominate a liberal who could get confirmed by the Republican Senate. I think that’s fairly unlikely.”

Scalia’s death will also bring more political scrutiny to the court amid the presidential election campaigns, Hasen wrote.

“Especially if Senate Republicans block a liberal appointee to the Supreme Court, this has the potential to inject this issue into the presidential campaign,” Hasen wrote. “And it will work both ways. You can bet that Ted Cruz will be running on a platform to replace Scalia with more and more Scalias. This could finally be the election that brings the Supreme Court into national focus much more.”

Technically, there’s time in 2016 if a vacancy opens on the court. The confirmation process for Obama’s two appointments, Justices Sonia Sotomayor in 2009 and Elena Kagan in 2010, took three and four months, respectively.

Politically — well, there’s the problem. Sotomayor and Kagan were confirmed when Democrats ran the Senate. There’s no sign the Republican-controlled Senate, which now draws the ire of Democrats over the slow pace of pace of confirmations for district and appeals court judges, would speed things up for an Obama nominee to the high court.

Senate Majority Leader Mitch McConnell of Kentucky threw doubt on that immediately, saying in a written statement that “this vacancy should not be filled until we have a new president.”

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