Even before the sudden death of Justice Antonin Scalia, this was going to be an enormously consequential Supreme Court term. The court has heard or agreed to hear cases involving the constitutionality of considering race in college admissions, how far states can restrict abortion, the viability of public sector unions, whether President Obama could defer deportations of unauthorized immigrants, and the tension between claims of religious freedom and women’s access to contraception. It recently stepped in to halt implementation of President Obama’s climate plan.
Now, all of the cases on the court’s docket are thrown into question, particularly as top Republicans like Senate Majority leader Mitch McConnell have declared that the Senate should wait to confirm a replacement until after the November election.
According to Samuel Bagenstos, a law professor at the University of Michigan who clerked for Supreme Court Justice Ruth Bader Ginsburg and has argued before the court several times, a 4-4 tie among eight justices means that the opinion of the federal appeals court stands without making new law for the rest of the country.
The justices generally vote for a case’s outcome at a conference after oral argument, after which the chief justice assigns an opinion, but if Scalia was the fifth vote in a case that’s already been heard, that result is now negated. “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,” Bagenstos said.
One exception to the deadlock is Fisher v. Texas, the affirmative action case brought by Abigail Fisher accusing the University of Texas for discriminating against her for being white. Justice Elena Kagan recused herself from the case, having worked on it as solicitor general. That means that if Justice Anthony Kennedy votes to strike down Texas’s affirmative action policy, as many expect him to, the result will likely be a 4-3 majority, Bagenstos said.
In the case heard January 11 that was expected to gut public sector unions, Friedrichs v. California Teacher’s Association, the Ninth Circuit Court of Appeals ruled for the unions. In Whole Woman’s Health v. Hellerstedt, the court’s biggest abortion case in decades, the Fifth Circuit Court of Appeals ruled against the abortion clinics twice, resulting in the shutdown of dozens of abortion clinics. The Fifth Circuit also voted to temporarily block Obama’s executive action of deferring the deportation of some undocumented immigrants. The group of religious nonprofits before the Court in a case consolidated as Zubik v. Burwell, who object to the Obama administration’s plan for providing contraception to women whose employers object, all lost at their respective lower courts, though other organizations not technically before the Court prevailed at the Eighth Circuit.
Another possibility, said Bagenstos, is for the cases to be re-argued in the next term. But, he said, “In the absence of new justice joining the court, that would be very unlikely.”