Justice Antonin Scalia's death means the Supreme Court may have only eight justices through mid-2017
The court has already tied, 4-4, on two major cases, meaning it rules but sets no legal precedent
In the eight weeks since Justice Antonin Scalia’s sudden death, the political branches of government have engaged in a raging debate over the future of the Supreme Court.
Inside the court, meanwhile, the remaining eight justices have had to deal with the complications of the present, including the reality of 4-4 splits, and the legal community finds itself adjusting to a world without the conservative titan.
Before the term began in October, court watchers speculated that the Supreme Court was poised to shift to the right after progressive victories on gay marriage and health care in mid-2015. Scalia’s death, and the fact that the court could have eight members for the remainder of the current term and perhaps through the next term as well could well throw off those predictions.
Already the justices have issued two 4-4 opinions, one of them in a high profile case concerning public sector union fees. Before Scalia’s death, conservatives were expected to win the case and deal organized labor a major blow by overturning 40-year-old court precedent.
But after Scalia’s death, the justices announced that they were deadlocked. When they are evenly split in an opinion, they automatically affirm the lower court, which in this case handed an unexpected victory to supporters of unions.
They may be headed toward a 4-4 split in another case brought by religious non-profits to Obamacare’s contraceptive mandate.
At arguments, the eight justices seemed closely divided. Then, they released an unusual order asking for more briefs in the case – a clear indication that the justices are looking for a way to avoid a 4-4 split that could leave parts of the country living under different rules.
The current term has no shortage of other high profile cases on issues such as abortion, affirmative action and immigration, and there may be more 4-4 opinions on the horizon highlighting the fact that the four liberal justices were nominated by Democratic presidents, while the four conservatives by Republicans.
The Obama administration has sought to use the justices’ split to back up its push to confirm Judge Merrick Garland to the high court.
“I think one of the real tragedies of this entire process is the possibility that this contributes to a view that the court is just another political organization,” White House Counsel Neil Eggleston said Friday at an event hosted by Politico.
A former clerk to the late Chief Justice Warren Burger, Eggleston said that one of the criteria the Supreme Court looks at when considering whether to take up a case is if the courts below are split on an issue. He warned that a 4-4 court, which can only affirm a lower court opinion and set no national precedent, might be unable to solve a circuit split. “One of the principal jobs of the court is to ensure that when a federal law issues, there is a nationwide rule that applies throughout the country,” he said.
Senate GOP leaders have declared they will not hold a hearing or vote on Garland’s nomination, saying the next president should be given the opportunity after November’s election.
In public comments both Justice Stephen Breyer and Samuel Alito have downplayed concerns about an eight-member court. They noted that the justices often issue unanimous decisions in cases that aren’t necessarily closely followed by the general public and that at different times in history the court has functioned with an even number of justices.
“We will deal with it,” Alito told an audience at Georgetown Law in February
“It’s certainly true that the court has functioned with vacancies and an even number of justices in the past,” said Stephen I. Vladeck, a law professor at American University and CNN legal analyst. “But whereas the court has often been evenly divided in specific cases throughout its history, there are few examples – and none in recent memory – in which the court was evenly divided between two clear ideological blocs, and where the vacant seat deprived both sides of a majority.”
In her first public comments about serving on an eight-member court, Justice Elena Kagan told an audience at New York University Monday night that the justices “are all working really hard now to have this be as non-disruptive as possible.”
Kagan gave “great credit” to Chief Justice John Roberts who she called “a person who is concerned about consensus building and I think all the more so now,” she said.
She added, however that “there is a reason why courts do not typically have even numbers of members” and she said that “there are always some number of 5-to-4 cases and even if we managed to reduce that number there are, I think, inevitably (and we’ve seen this already) are going to be tie votes.”
Missing voice in the courtroom
Scalia’s death has also changed the dynamic of the bench. He sat near the center and had the habit of rocking back in his chair and then almost leaping forward to launch a question that could unsettle even the most experienced advocate and change the course of oral arguments. He was rarely the swing vote like Justice Anthony Kennedy or the retired Justice Sandra Day O’Connor, but lawyers on both sides knew they would be foolish if they failed to at the very least anticipate his questions.
His absence may have affected the tenor of oral arguments during a highly anticipated case on abortion last month.
As Texas Solicitor General Scott Keller tried to defend a state law that supporters of abortion rights believe is one of the strictest in the nation, he faced a barrage of questions from the liberals on the bench. Had Scalia been sitting for those arguments, he might have been able to derail that sustained attack from the left side.
“Hypothesis: Scalia was very good at blunting/interrupting Q’s from liberal Justices & his absence is a reason they were so effective today,” Josh Block, a lawyer for the ACLU, tweeted after arguments.
Scalia’s death may also have been behind Justice Clarence Thomas’ decision to ask a question from the bench for the first time in 10 years. In February, Thomas startled court watchers when he suddenly spoke up asking a line of questions concerning the Second Amendment. It is possible that Thomas stepped in because he thought his close friend Scalia might have launched a similar line of inquiry. At the time, Scalia’s chair sat empty next to Thomas, draped in black.
Scalia’s death will also likely change the cases that are brought to the Court. The conservative group behind the public union’s case, for example, might have felt emboldened to bring their claim when it believed it had five votes on its side. Depending upon who the next nominee is, they may be less likely to risk pushing a case to the high court for that it might fear would set a bad precedent.
Already, there has been some change in legal circles.
In February, Dow Chemical decided to settle a class action lawsuit and pay out $835 million to settle a price-fixing case.
In a statement, the company linked the decision to Scalia’s absence.
“Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation,” the company said in a statement.
To be clear, Scalia’s death is far from crippling the Court’s work, and important cases will be decided.
On Monday, for example the Court came to a unanimous result in an important case concerning voting rights. In that case, the Court handed conservative challengers a loss in a key voting rights case.
All the while, Garland is meeting with Democratic senators and Republicans willing to extend a courtesy visit. This week he is scheduled to meet with two Republicans, Susan Collins of Maine and John Boozman of Arkansas.
While Eggleston expressed optimism that more Republican meetings are on the horizon, a spokesman for Senate Majority Leader Mitch McConnell issued a statement Friday saying that despite a “massive campaign” by the White House, unions and other liberal special interest groups, there are so far only two GOP senators — Susan Collins and Mark S. Kirk of Illinois — calling for hearings.
Two other Republican senators – Jerry Moran from Kansas and Lisa Murkowski of Alaska – have had a change of heart about hearings after initially expressing support.
“The White House’s attempt to manufacture Republican disunity is engaging in wishful thinking and confusing courtesy with weakness,” said Carrie Severino, chief counsel for the conservative Judicial Crisis Network.
Correction: This story has been updated to reflect Sen. Jerry Moran represents Kansas.