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How Scalia’s Death Shifts Ground on Five Close High Court Cases

After big liberal wins on the health care law and same-sex marriage last term, legal experts had predicted a turnabout for conservatives during the current Supreme Court term that started in October.

But the death of conservative Justice Antonin Scalia makes that less likely on big cases expected to divide the court ideologically, including cases on affirmative action and public sector unions. Scalia was one of four reliable conservatives. His absence makes it harder to get a conservative majority.

On other cases, such as a challenge to President Barack Obama’s executive actions on immigration, conservatives may still have the votes to prevail. 

There are major unanswered questions about how the justices will go about their work. They could delay decisions, for example. And Obama could try to go around the Senate confirmation process and fill the vacancy with a recess appointment or try to put a retired justice on the bench temporarily.

But as long as there is a vacancy, some power swings to the four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Those justices voted together in the 10 most important cases last term, and the left prevailed in eight of them, according to an analysis from Tom Goldstein, an appellate lawyer who has argued before the court 38 times.

If that pattern holds true this term, it leaves two possibilities: one conservative justice swings to the liberal side for a 5-3 decision, or the conservatives — Anthony M. Kennedy included — stick together and the case ends up 4-4. Of course, justices’ votes can’t be known with certainty until decisions are announced. 

A 4-4 vote would leave the lower court ruling standing, but possibly only for a short time. The case could later return to the high court because a 4-4 vote is treated as if the court never ruled. Goldstein suggested Sunday that a 4-4 result could mean the court orders the cases reargued once a new justice is confirmed.

Following is a look at five key cases that could be affected by the vacancy left by Scalia.

Public Sector Union Fees

Legal experts predicted that conservative justices would prevail in a case that could threaten the funding of public sector unions, Rebecca Friedrichs v. California Teachers Association, Docket No. 14-915. The challengers are asking the justices to overturn a 1977 Supreme Court ruling — Abood v. Detroit Board of Education — that allows unions to require dues from employees they represent but who aren’t members.

The justices heard oral arguments in the case in January.

A 4-4 split would leave in place a lower court decision that required employees to pay the dues. 

The unions would emerge winners as long as that lower court ruling stands.

Affirmative Action

Texas looked unlikely to prevail in a challenge to the University of Texas at Austin’s use of racial preference in undergraduate admissions decisions, Fisher v. University of Texas, Docket No. 14-981. The conservative justices were unlikely to have taken the case if they didn’t have the votes to overturn the affirmative action policy in some way, legal experts had said.

The justices heard oral arguments in the case in December.

Justice Samuel A. Alito has recused himself, making it less likely the court would have votes to adopt a wholesale rejection of affirmative action. But this case could also be ruled narrowly, focusing on parts of Texas’s plan and potentially opening unusual voting alliances on the court. 

If the four liberal justices vote to uphold the plan, the lower court ruling applies, allowing the affirmative action plan to remain in effect.

The University of Texas at Austin and advocates of affirmative action would be the winners.


The court is scheduled to hear arguments March 2 over whether a Texas law requiring stricter standards on abortion clinics violates constitutional protections by imposing an undue burden on the right of women to have an abortion. The case, Whole Woman’s Health v. Hellerstedt, Docket No. 15-274, could affect other states that enact similar provisions.

Kennedy could join the liberals to strike down the Texas law. The most optimistic scenario for conservatives appears to be Kennedy voting with them and achieving a 4-4 tie. 

A tie would leave in place the Court of Appeals for the 5th Circuit’s ruling in June that the Texas provisions requiring abortion clinics to meet standards for ambulatory surgical centers. Physicians at those providers must have admissions privileges at a nearby hospital. Those requirements are costly and cause abortion clinics to close, women’s health groups say.

The Texas legislators who passed the provisions and abortion opponents would be the winners.


The Supreme Court agreed in January to decide whether Obama can implement his immigration executive actions before he leaves office. Republican lawmakers have been sharply critical of the president, and many states, led by Texas, sought to block the actions. The president 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.

The court is expected to hear arguments in April and issue a ruling late in June, in the heat of a presidential election in which executive actions on immigration could play a big role. The case is United States v. Texas, et al., Docket No. 15-674.

As with the abortion case, Kennedy could join the liberals to allow the president’s actions. But if he joins the conservatives and delivers a 4-4 tie, the Court of Appeals for the 5th Circuit ruling blocking implementation would apply until the outcome of a lawsuit in Texas. 

Obama would be the loser, at least temporarily, and millions of undocumented immigrants could be affected. 

Contraception Mandate

The justices are scheduled to revisit on March 23 the 2010 health care law (PL 111-148, PL 111-152) and hear arguments on another challenge to the contraception mandate, this time involving a group of seven cases from the Little Sisters of the Poor and other religious nonprofit groups.

The groups object to taking action in a procedure required by the Obama administration — called an accommodation — to be exempted from the birth control mandate if they have objections to some contraceptive methods. Churches and other religious organizations are exempted without such a procedure. 

Scalia’s vote would have seemed to give the religious groups the advantage, but the court is now more likely to split 4-4 and uphold a lower court that leaves the contraceptive mandate in place for them. The case is Zubik et al. v. Burwell, Docket No. 14-1418.

The Obama administration would be the winner in such a tie. 

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