After Scalia

The death of a sitting Supreme Court justice in the middle of the court’s term is a rare event, and a death on a tightly divided nine-person bench in a presidential election year is potentially a political and legal powder keg. The leader of the court’s conservative wing, Justice Antonin Scalia, 79, died of apparent natural causes at a West Texas ranch on Feb. 13. Scalia was a devout Catholic, who had nine children with his wife of more than 50 years, Maureen McCarthy.

Now the Supreme Court, in another high-octane term, must likely operate for months without a justice to replace Scalia. No new justice could fill his shoes; even his liberal colleagues praised Scalia, whom friends called “Nino,” as a “legal titan.”

“Nino Scalia will go down in history as one of the most transformational Supreme Court justices of our nation,” said Justice Elena Kagan in a statement. Cass Sunstein, a noted liberal constitutional lawyer, echoed her, calling Scalia “among the greatest” justices in the nation’s history.

Scalia’s passing has thrown the legal and political worlds into confusion. Senate Republican leaders have said the next president should fill the vacancy in 2017, setting up a duel with President Barack Obama, who plans to submit a nominee soon. Democrats will try to paint Republicans as obstructionists, and Republicans will use the election as a referendum on the future of a court that already has two Obama appointees.

But political sands are ever-shifting. If in the fall it seems clear that former Secretary of State Hillary Clinton will win the presidency, or that Republicans will lose control of the Senate chamber, Senate leadership might compromise on a nominee with Obama.

The immediate concerns of pro-lifers and religious freedom advocates are several major cases whose outcomes are in doubt with Scalia’s absence. The high court will move forward now with eight justices. If the vote on a case is tied 4-4, the lower court ruling in that case will stand, without imposing a national precedent.

‘Nino Scalia will go down in history as one of the most transformational Supreme Court justices of our nation.’ —Justice Elena Kagan

On March 2, the court will hear the first major abortion case in nine years, Whole Women’s Health v. Cole, which concerns two provisions in a Texas law regulating abortion centers. (Look for coverage of the arguments on wng.org.) With Scalia’s absence, Texas needs Justice Anthony Kennedy’s swing vote to achieve a tie, which would affirm the lower court ruling in favor of Texas. That would leave similar laws in other states in question.

“Although Texas might win, the rule of law across the country is probably going to have to wait until there is a new justice,” said Clarke Forsythe, senior counsel for Americans United For Life, which filed an amicus brief on behalf of Texas legislators in the case.

More in doubt now is the case from religious nonprofits, like Little Sisters of the Poor, challenging the contraceptive and abortifacient mandate. The nonprofits’ cases have been consolidated into one argument, Zubik v. Burwell, scheduled for March 23. Kennedy’s position on that issue has been unclear. These particular nonprofits lost at the circuit level, so even if the nonprofits do win Kennedy’s vote and a 4-4 tie, the lower rulings against them will stand. The justices decided the parallel for-profit case, Burwell v. Hobby Lobby, on a 5-4 vote.

Several other major cases now have an uncertain outcome: in Trinity Lutheran Church v. Pauley the court will examine when state aid can go to religious institutions. Before Scalia’s death, religious freedom advocates thought the church had a good chance of winning that case. Trinity Lutheran lost at the circuit level, so a tie would be a loss for the church.

The court had already heard arguments this term in a case from a group of Christian public school teachers challenging their union dues, Friedrichs v. California Teachers Association. In the arguments the conservative justices seemed ready to deliver a heavy blow to public sector unions, but without Scalia’s vote the case would likely end in a 4-4 tie. That would affirm a lower court decision against the teachers objecting to the dues. This term the court will also weigh a challenge to President Obama’s executive action on immigration —a tie in that case would be a loss for the Obama administration.

But the court’s next steps aren’t clear-cut. The justices could decide on some of the more controversial cases to hold re-arguments after their numbers return to nine. That decision might occur soon after the original arguments—when justices cast their votes on a case, but before they pen a ruling: If a case is tied 4-4, they might decide to wait on a ruling and reargue. But even seasoned Supreme Court observers aren’t sure how the justices will proceed under these complex circumstances.

The Alliance Defending Freedom is involved in the contraceptive mandate cases and the Trinity Lutheran case. When I talked to Alan Sears, the head of ADF, on the night of Scalia’s death, he mourned the loss and then said about the future of his organization’s cases: “Lord have mercy.”

A quotable justice

Justice Scalia’s sharp pen brought clarity to many legal fights. Some examples:

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

—Scalia on the right to bear arms

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, [the test] stalks our ... jurisprudence once again, frightening the little children and school attorneys.”

—Scalia on the Lemon test for church-state separation

“I will become a believer in the ingenuousness, though never the propriety, of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.”

—Scalia on the court’s citing of foreign law to justify rulings

“My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it.”

—Scalia on the Roe v. Wade decision

“This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it re-writes the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

—Scalia on the court’s decision upholding Obamacare