It has been reported that Supreme Court Justice Antonin Scalia has passed away at a West Texas Ranch. (Read More Here). His sudden death comes as a shock to me.
First and foremost, I offer my sincere condolences to the Scalia family including his widow and nine children.
Justice Scalia has been a solid fixture on the court’s conservative side since his appointment to the court by President Reagan in 1986. He helped form the court’s stance and opinion on several controversial and crucial topics including abortion, race and gender issues, and universal healthcare.
Given the closely divided nature of the current court, his death changes the potential outcomes of several cases currently before the court. The following five cases are just a few to consider.
The central issue of the case is whether eligible voting population numbers can be substituted for total population numbers when determining voting districts. Does the One-Person, One-Vote doctrine require Texas to use the voting population number when the total population number causes such a disparity?
In 2013, the Texas legislature drafted new state senate districts. The legislature created the districts based on the total population of the districts. By doing so, the difference between the largest district and the smallest district was approximately 8.04 percent. However when those districts are are compared based on the voting age population, the difference between the largest and smallest district is as much as 49 percent.
Where would Justice Scalia have sided? There is 50 years of history and supreme court precedent to argue that the total population method offers the most balanced and fair distribution of voting power. Every resident of a given district is going to be affected equally by the state legislature and as such deserves to be counted when creating districts.
On the other hand, we’ve all heard the adage, “If you don’t vote, you can’t complain.” Is it more fair to divide districts up by actual voting population and ignore districts with higher populations of nonvoters (ex: incarcerated, the young)?
If the Court decides with the plaintiffs that the voter population is the proper method, then the next question is how that population is counted? Does the state count only registered voters? Or does it count all residents of voting age?
I believe the court will side 6-2 against the plaintiffs and affirm the practice of using total population in creating districts.
The central issue in this case is Texas’ 10% rule regarding admission to the state’s public universities. Under the rule, any student in the top 10% of his/her graduating class is granted admission to the public university. Applicants for any remaining spots go through a “holistic” evaluation process in which race is considered.
Abigail Fisher claims that the discriminatory admission process caused her rejection and allowed lesser qualified minority students admission over her. This case was heard by the Supreme Court in 2013 and sent back to the lower court for further proceedings.
Where would Justice Scalia have sided? There is no question Justice Scalia has a staunch and unblemished record against race-based affirmative action. In fact, his line of questioning in the December 9, 2015 oral hearing had many pundits screaming ‘Racist!’ The SCOTUS is evenly divided on the issue. It was widely assumed this would be a 5-4 decision with Justice Kennedy being the swing vote. Now, it looks like the University of Texas’ 10% rule with the remaining spots decided using race as a factor will be upheld.
[UPDATE I forgot that Justice Kagan had refused herself in this case. Rather than 5-3 as I originally wrote, I think it will be 4-3]
I believe the court will side 5-3 against Fisher.
The plaintiff in this case argues that being forced to pay union dues violates the First Amendment because all teachers who are represented by the union must pay their fair share of the cost the union incurs negotiating and administering a collective bargaining agreement.
Under California’s public sector labor laws, and most other states, the union owes a duty of fair representation (DFR) to all employees it represents. The DFR requires the union to enforce the contractual rights of all the employees it represents, without regard to whether they are members. Because of this duty, the unions are forced to expend resources for the benefit of nonmembers as well as members. This creates a “freerider” situation where nonmember employees gain the benefits of collective bargaining through the union without paying for them.
Where would Justice Scalia have sided? As incredulous as this might sound, the defendant Union’s best hope for a win probably was with Justice Scalia. Yes, you read that right. Justice Antonin Scalia wrote extensively on the idea of the “freerider” in his concurring and dissenting opinion in Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). The current rule from Abood v. Detroit Board of Education is that employees can be nonmembers of the union, but still must pay for their fair share of the costs the union is required by law to incur in negotiating and administering an agreement on behalf of all teachers.
I believe the court will continue to find Justice Scalia’s reasoning instructive regarding freeriders and will decide the case in favor of the union 5-3.
Of course the issue of abortion is before the court this session. In 2013, Texas enacted the law that would force about 75% of the state’s abortion clinics to close. The law requires that doctors at clinics have hospital admitting privileges within 30 miles of the clinics and that the clinics have facilities equal to those of an outpatient surgical center.
The first question before the Court is whether the state legislature should be the one to decide if the law’s restrictions would actually work to protect the health of women.
The second question is whether the law creates an undue burden on women who seek abortions.
Where would Justice Scalia have sided? Prior to today, most SCOTUS pundits would have said Justice Kennedy would be the swing vote again on this issue. The starkly divided court would like have stood 4-4 pending his vote. However, now, the Court clearly sits 4-3 with Justice Scalia’s passing. This changes the landscape of the case for Justice Kennedy.
I believe this case will contain several concurring and dissenting decisions. I think the plurality of the court will side with state’s legislature’s right to decide the appropriateness of the abortion restrictions. But I think the Court will find that this law, specifically, creates an undue burden on women’s rights.
With Justice Scalia’s conservative vote, I believe it would have been a more definite affirming of the state’s legislative authority. And I think the question of undue burden on women’s rights would have not have been as clear-cut.
Yet another Obamacare case before the court. This case involves whether religious-sponsored, non-profit corporations can object on moral grounds to allowing their employees to obtain contraceptive coverage under Obamacare even if the contraceptives are provided by insurance companies and the government rather than the institutions themselves.
The plaintiffs in these cases argue that even an indirect participation in the plan is offensive and they want to be included in the broader Obamacare exceptions that applies to churches, synagogues and worship-based employers.
The government counters that religiously-oriented non-profit institutions such as hospitals and universities have numerous employees who may not share the beliefs of the religious groups that sponsor the non-profits and these workers would be harmed by the exclusions.
Where would Justice Scalia have sided? There is no doubt he would have sided with expanding the exclusion to include this new class of plaintiffs. The evenly divided court will now decide the case without a clear majority. If this case was close before, it is even more so now. It is very likely that the court will vote 4-4. If that happens, the decision of the lower court will be affirmed. This means the plaintiffs will not be excluded from Obamacare’s requirement to provide contraceptives.
[Photo Credit: Stephen Masker]