In the immediate aftermath of Supreme Court Justice Antonin Scalia's death, speculation is rampant as to who will replace him, and whether the Republicans will even allow President Obama to fill the vacancy. While the long-term future of the Supreme Court is now, more than ever, a critical issue that will be on the electorate’s mind during the upcoming presidential election, another important issue raised by the new vacancy on the Court is how the cases currently pending in the Court may turn out differently without Justice Scalia on the bench.
In a number of key civil rights cases pending before the Court, Scalia's vote could have made a substantial difference; without his vote, some of these cases may end up as 4–4 ties. As a result, there will be no opinion from the Court with precedential value in those cases, and the lower court decision being appealed will stand as good law.
What that means for five pending civil rights cases in particular:
1. Zubik v. Burwell, the latest challenge to Affordable Care Act to hit the Supreme Court, is one that, like the Hobby Lobby decision, involves the invocation of the Religious Freedom Restoration Act by religious employers (this time, religious non-profit organizations) to deny reproductive healthcare to employees. This case may be transformed from a 5–4 case to a tie in which the lower court’s decision upholding the reproductive healthcare access provision of Obamacare will live to see another day, and women who work for religious non-profit employers will be able to continue receiving reproductive healthcare.
2. Another case involving reproductive healthcare is Whole Women’s Health v. Cole. In that case, the lower court—the Fifth Circuit—had upheld abortion restrictions in Texas that threatened to close a number of clinics, ruling that the regulations did not create an undue burden on women seeking abortions. If there is a 4–4 tie in that case, the Fifth Circuit's decision will stand, but reproductive-rights advocates will be able to take slight solace in the fact that the final decision was merely a court-of-appeals decision, rather than a Supreme Court decision setting binding precedent nationwide.
3. In Fisher v. Texas, the affirmative-action case arising out of a white student’s challenge to the University of Texas’s affirmative-action program, the math is different. The vacancy on the Court resulting from Justice Scalia’s death may not prevent a majority opinion ruling against Texas’s affirmative-action program, because Justice Kagan has recused herself from that case. Whereas the Fisher case had, prior to Justice Scalia's death, been predicted to end in a 5–3 decision striking a severe blow to affirmative action, it is more likely that the case will end up as a 4–3 decision, but still one striking down the affirmative–action program.
4. In a voting-rights case, Evenwel v. Abbott, in which the meaning of "one person, one vote," is at issue, Justice Scalia might have been the fifth vote in a 5–4 decision limiting citizens who may be counted for redistricting purposes to eligible voters. Without his vote, a 4–4 decision by the Court would result in the decision of a three-judge panel from the Western District of Texas standing as good law, allowing Texas to instead base redistricting on total population, which would increase the weight of Hispanic votes, according to the brief of the Cato Institute challenging the population-based method.
5. United States v. Texas is the controversial case involving tensions between the executive and legislative branches of the government in the context of immigration, in which Texas challenged a new "deferred action" executive program for certain undocumented immigrants. The program was held by the Fifth Circuit to have been implemented in contravention of the Immigration and Nationality Act. While the Fifth Circuit had not reached the constitutional issue, the Supreme Court has added an issue to the plate of argument subjects to be addressed: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” With a possible 5–4 vote becoming a 4–4 tie after Justice Scalia's death, the Fifth Circuit decision would stand, and the Supreme Court would have to save the broader constitutional issue for another day and case.
Keywords: civil rights, litigation, SCOTUS, affirmative action, immigration, RFRA
— Nancy Marcus, Indiana Tech Law School