Scalia’s Death and This Year’s Docket

Written by: Jerry Yan, PO ‘18

Every term, the Supreme Court’s docket contains cases that have the potential to redefine the American political landscape. Oftentimes, these cases are resolved by a Court split 5-4: four conservative justices on one side, four liberal justices on one side, and Justice Kennedy in the middle. However, Scalia’s passing would likely leave the Court deadlocked at 4-4 when the Court divides along ideological lines and Kennedy votes with the conservative justices. In that event, the Court would affirm the lower court’s decision. Such a decision would not create binding precedent and it would be as though the Supreme Court never took the case to begin with. Alternatively, the justices could decline to issue a decision this term and instead order reargument next term, when a new justice could join the bench, break the tie, and issue a binding decision. However, with the Republicans promising to block any Obama nominee, the prospects for that best-case scenario look bleak at best. Regardless of when a ninth justice will be confirmed, Scalia’s death may impact several controversial cases that could drastically reshape the American political scene. Three such cases are Friedrichs v. California Teachers Association, Fisher v. University of Texas, and Whole Woman’s Health v. Hellerstedt.


Friedrichs v. California Teachers Association

Friedrichs has to do with public sector unions, which represent the interests of workers in a public industry. Currently, public sector unions may, in accordance with the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), require non-members to pay certain union fees unless they affirmatively opt-out of the fees, like how certain students at Pomona are placed in mentor groups by default unless they opt-out of them. The plaintiffs are teachers who sued the California Teachers Association, a public sector union that represents teachers in California. The plaintiffs allege that the imposition of union fees without their consent violated their First Amendment rights because it amounts to forcing them to identify with a political organization. They ask the Court to overturn Abood and to prevent unions from charging any person union fees without the person’s consent. A decision in favor of the plaintiffs would likely weaken public sector unions and may compromise their ability to organize public employees and effectively lobby lawmakers on their behalf.

Observers strongly expected the Court to divide along its traditional ideological lines in Friedrichs, with Roberts, Scalia, Kennedy, Thomas, and Alito on one side and Ginsburg, Breyer, Sotomayor, and Kagan on the other. All five members of the majority indicated during oral argument that they were willing to side with the plaintiffs and overturn Abood. Without Scalia, however, the majority dwindles to four, leaving the Court deadlocked at 4-4. As the lower court’s decision was in favor of the California Teacher’s Assocation, public sector unions can likely breathe a sigh of relief, at least for now.


Fisher v. University of Texas

Fisher, more commonly referred to as “The Affirmative Action Case,” is a constitutional challenge to affirmative action practices at public universities. Abigail Fisher, a young white woman, applied for and was denied admission to the University of Texas in 2008. She then sued the University, alleging that she had been denied admission because the University’s use of race as a criterion for consideration in its admissions process unconstitutionally discriminated against her on the basis of her race. She alleges that the University’s affirmative action program deprived her of the equal protection of the law guaranteed to her by the Fourteenth Amendment. A decision in favor of Fisher would invalidate affirmative action programs at public universities and may set up precedent for invalidating affirmative action programs in general.

Although Scalia was expected to vote to strike down the University’s affirmative action program, his passing will likely have little impact on how the Court ultimately resolves this case. First, Justice Kagan, who would have likely voted to uphold the University’s affirmative action program, recused herself and will not affect the Court’s final decision. Furthermore, Kennedy and the three remaining conservative justices are expected to vote in favor of Fisher. As such, Scalia’s death still leaves four likely votes to strike down the University’s affirmative action program against three to uphold. Even after Scalia’s passing, affirmative action is still very much on the ropes.


Whole Woman’s Health v. Hellerstedt

In 2013, the Texas State Legislature enacted a law that imposed a series of criteria that must be met for a clinic to offer abortion services. As the law stands right now, more than 75% of Texas abortion clinics would be closed for failing to comply with various criteria mandated in the law. The plaintiffs, a collection of abortion clinics and doctors, sued the State of Texas, arguing that the new law is unconstitutional because it unduly burdens a woman’s right to choose an abortion as protected by the Fourteenth Amendment. Previously, the four liberal justices and Kennedy granted an emergency stay of the Texas statute, preventing it from going into effect. A decision in favor of Texas would lift that stay and force those clinics to close.

Prior to Scalia’s death, the Court was expected to divide along its traditional liberal/conservative lines. The key vote would be, unsurprisingly, in the hands of Justice Kennedy, who co-authored the Court’s opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which upheld a woman’s right to choose an abortion. Kennedy also voted to grant the emergency stay that prevented the Texas law from taking effect. If Kennedy votes with the liberal justices, then Scalia’s death would not affect the Court’s decision. However, if Kennedy votes with the conservative justices, then the Court would affirm the lower court’s opinion in favor of Texas, forcing the clinics to close.

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