Scalia’s death means loss of key vote in divided cases

Posted at 9:18 PM, Feb 14, 2016
and last updated 2016-02-15 11:32:35-05

WASHINGTON (AP/WXMI) — Justice Antonin Scalia's death deprives conservatives of a key vote that could change the outcome in some major Supreme Court cases, including one in which labor unions appeared headed for a big defeat.

Next month's Supreme Court arguments in a clash over contraceptives, religious liberty and President Barack Obama's health care law also now seem more likely to favor the Obama administration.

Those are the most immediate effects on the court of the loss of its conservative icon and longest-serving justice.

For Grand Rapids attorney John Bursch—who has argued in front of the U.S. Supreme Court nine times—the loss of Scalia means the loss of the original so-called 'originalist' on the bench.

“Prior to him, it wasn’t uncommon for judges at all levels of the system to legislate from the bench—to put in place the rule of law they thought was best," Bursch told FOX 17.

“Justice Scalia said ‘no, we’ve got to apply the actual words we used in the Constitution and apply that.’ That’s now become the dominant form of interpretation everywhere in the country.”

Bursch last argued before the highest court in the land in April 2015 when he was hired by the State of Michigan to defend the state's same sex marriage ban.

The ban was later struck down in a landmark 5-4 opinion, in which Scalia dissented with the court’s decision.

Subtracting Scalia's vote from cases in which he was in the majority in a 5-4 split leaves the result tied, four a side.

The remaining eight justices have two options in that situation: They can vote to hear the case a second time when a new colleague joins them or they can hand down a one-sentence opinion that upholds the result reached in the lower court without setting a nationwide rule.

“It’s really problematic, because when the court ties 4-4 then there is no official U.S. Supreme Court opinion," Bursch said. "The result in the lower court is the one that will control and there is no precedential value to the Supreme Court decision itself.”

A second round of arguments seems less likely at the moment because a new justice may not be confirmed until the next president is in office.

A tie vote, by contrast, resolves the case at hand and allows the legal issue to return to the court at a later date when there is a ninth justice.

Public sector labor unions had been bracing for a stinging defeat in a lawsuit over whether they can collect fees from government workers who choose not to join the union. The case affects more than 5 million workers in 23 states and Washington, D.C., and seeks to overturn a nearly 40-year-old Supreme Court decision.

Now, what seemed like a certain 5-4 split, with the conservatives in the majority and the liberals in dissent, instead looks like a tie that would be resolved in favor of the unions, because they won in the lower courts.

"That's a big loss. It was all teed up and it looks like it's not going to go anywhere now," said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.

Another case in which there now seems little chance of finding a court majority to upset long-standing practice involves a conservative challenge to the way governments have drawn electoral districts for 50 years.

The court heard arguments in December in a case from Texas on the meaning of the principle of "one person, one vote," which the court has said requires that political districts be roughly equal in population.

But it has left open the question of whether states must count all residents, including non-citizens and children, or only eligible voters in drawing district lines.

The court's upcoming look at the health care overhaul will be its fourth case involving the 2010 law. This time, the focus is on the arrangement the Obama administration worked out to spare faith-based hospitals, colleges and charities from paying for contraceptives for women covered under their health plans, while still ensuring that those women can obtain birth control at no extra cost as the law requires.

The faith-based groups, including the Michigan Catholic Conference and Kalamazoo Catholic Charities, argue that the accommodation still makes them complicit in providing contraception to which they have religious objections.

A tie vote here would sow rather than alleviate confusion because the appellate courts that have looked at the issue have not all come out the same way.

“That’s a great example of one where we might not get the resolution we thought we’d get," Bursch said.

That prospect suggests that Justice Anthony Kennedy will join the court's four liberal justices to uphold the arrangement, Supreme Court lawyer Thomas Goldstein said.

Other big cases before the justices this term include affirmative action, abortion and immigration.

With Justice Elena Kagan out of the affirmative action case, the court still is more likely to rule, 4-3, in favor of a challenge to the consideration of race in admissions to the University of Texas.

On abortion and immigration, a 4-4 tie would sustain lower court rulings in favor of Texas' regulation of abortion clinics and a Republican-led challenge to an Obama administration plan to allow millions of immigrants who are in the country illegally to avoid deportation and acquire work permits.

How long it takes to successfully name Scalia's replacement remains uncertain, but Bursch contends there certainly is precedent in place for not appointing judges toward the end of a President's term.

“The politics on both sides of the aisle—the Democrats and Republicans—has really been the same for at least 80 years, applying not just to the Supreme Court justices but to Court of Appeals and Federal District Court judges," he said.

"The Senate just stops confirming people because once you put a judge on with a lifetime tenure they’re going to be there for 25, 30, sometimes even more years. They use that one year gap as kind of a referendum of what kind of judiciary we want.”

According to, at least 14 justices in the history of the U.S. Supreme Court have been confirmed during election years. The most recent election year confirmation was Justice Anthony Kennedy, who was confirmed by President Ronald Regan in 1988, but he was nominated in 1987.

Before Kennedy, the most recent election year confirmation was in 1940.

FOX 17s Josh Sidorowicz contributed to this report.