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The death of Supreme Court Justice Antonin Scalia may have set off a political battle over who and when to replace him, but, while that is happening, the business of the Supreme Court goes on. There are six key cases on this year’s SCOTUS docket that probable 5-4 conservative wins may now be 4-4 ties. The cases involve important issues;  one man one vote, abortion, religious freedom, Constitutionally defined separation of powers, affirmative action, and right to work.

The term of the Court begins each year on the first Monday in October, which means there are some cases the late Justice was present for – and even voted on. However, each of the late Justice’s votes during the present court term are negated. Per University of Michigan Law professor Samuel Bagenstos:

“Unless a justice is sitting at the Court at the time of argument and at the time the decision is issued, the justice’s vote doesn’t count.”

Generally, the Supreme Court hears oral arguments for seven months (between October and April), scheduling them into two-week sessions during which the Court hears two arguments per day Monday through Wednesday. When holidays are added to the mix, the Court hears 9-10 arguments each of those months. Per the court’s published monthly argument calendars, Justice Scalia heard – and probably voted on – 38 cases during the present term; some of them were important cases.

If any of those cases, or the ones still unheard, result in a 4-4 tie, the Court could either:

  1. Vote to rehear the case when a 9th justice come aboard, or
  2. Vote to allow the ruling of the lower Court to stand, but only for the jurisdiction of that particular Court (there are 13 appellate Courts split into 12 regions across the country below the U.S. Supreme Court).

Below are some of the important cases whose results are most affected by Justice Scalia’s death .

Note: the investigation and synopsis of each case is mine, however each case name is linked to the SCOTUSblog’s write up of the case, should the reader want additional information. So if you disagree with anything below…blame me not them.

  • Evenwel v. Abbott: Heard in November 2015. This case from Texas answers the question of whether a state, when it apportions districts, has to limit itself to counting just voting population, or count everyone (including children, felons, and illegal aliens). The lower Court sided with the state, which counted everyone.  Without Scalia, this may be a 4-4 vote.
  • Whole Woman’s Health v. Hellerstedt: To be heard in March 2016, this case evaluates the constitutionality of the Texas law requiring abortion centers to have the same medical standards as ambulatory surgical centers and requiring abortionists to obtain hospital admitting privileges. This, too, looks like a 4-4 vote – which would send it back to the lower Court’s ruling that the Texas law was Kosher.
  • Zubik v. Burwell: To be heard in March 2016. This is the case involving the Little Sisters of The Poor. Similar to the Hobby Lobby one already decided, this case (a consolidation of six cases) will decide whether religious-affiliated organizations have to comply with the Obamacare rules about covering birth control. Non-profit religious organizations are allowed to waive the birth control requirement by signing a form designating their insurance company to make sure the employees get the birth control coverage without requiring the non-profit to pay for it. However, the religious groups believe that, by signing the form, they are participating in the requisitioning of the birth control and participating in a sinful practice. While the related case was 5-4 in favor of Hobby Lobby, this one might end up being 4-4.  What makes this one even more complicated is that the six cases consolidated into one had different results: some ruled for Obamacare, some didn’t.
  • U.S. v. Texas: To be heard in March 2016. This case will rule on the constitutionality of President Obama’s executive order granting amnesty to about five million illegal aliens. In this case, the lower Court issued a stay of the action until a case could be heard. The administration was fighting to have the stay overturned and allow the order to be implemented. The court has indicated their decision will be, at least partially, based on whether the executive order violates Article II, Section 3 of the U.S. Constitution, which says the president’s duty is to “take Care that the Laws be faithfully executed.” A 4-4 tie here will return the case to the lower Court where it will be heard and (most probably) will be sent back up the line.
  • Fisher v. University of Texas: This is the second time the Court has heard this affirmative action case; the first time was in 2013. The latest hearing/vote was in December 2015. But, this one cannot end in a 4-4 vote because Justice Elena Kagan has recused herself from the case. In 2013, the Court punted. Rather than rule on the constitutionality of using race as a qualifier for admission, they sent it back to the lower Court saying it should have used “strict scrutiny.” Strict scrutiny means the ruling has to address three questions. First, what is the compelling governmental interest? Second, was the element being ruled on narrowly tailored to achieve that interest? And, finally, as tailored, is the law/rule being evaluated by the Court the least restrictive means for achieving that interest?  Applying those standards, the lower Court ruled in favor of the University’s use of race. Now, the Court will rule based on the case itself. This case will be decided – but, if the University of Texas wins, it may be because Scalia isn’t there to make it a 4-4 case.
  • Friedrichs v. California Teachers Association: Heard in January, this case will decide if a public sector employee can be forced to join a union. California and other states have what is called “agency shop” laws  requiring public employees to pay union dues as a condition of their employment. This is another case which may end up in a 4-4 decision, which means the “agency shop” laws will be upheld.

America will find out the results of these and all the other SCOTUS cases between the end of May and early June.

The cartoon at the top of this post was created by my Liberty Alliance colleague A.F. Branco. You can see his work daily all over the net but the easiest place is at his site Comically Incorrect

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