Texas officials said today that Justice Antonin Scalia, who passed away yesterday at the age of 79, died of a heart attack. The AP reports that his body is currently in a Texas funeral home after a three-hour procession from the ranch where Scalia was found dead yesterday. Officials are awaiting word on an autopsy; his body is expected to be flown back to his Virginia home on Tuesday. 

Inevitably, attention turns to the impact of Scalia’s death on American jurisprudence (this macabre reality — and the enormous historical importance our system attaches to arbitrary actuarial timing — might make us question the concept of lifetime appointments of such immense power). President Barack Obama has announced that he will fulfill his constitutional duty and nominate a replacement. Republicans in the Senate have announced they will use their constitutional prerogative to block anyone he nominates, no matter how qualified. Unless something very unexpected happens, the Court will proceed with eight justices for nearly a year. The Court can still hear cases with eight justices sitting. Any split 4-4 decision lets the lower court ruling stand and establishes no precedent. This will likely have a major impact on the outcome of some important upcoming cases. 


In a month, the Court will hear what is arguably the most important case relating to abortion in a decade, Whole Women’s Health v. Hellerstadt. The plaintiffs are challenging a Texas law that is designed to shut down more than three quarters of all women’s health clinics in Texas providing abortion services. The risible ruse is that the law is in place to protect women’s health.  In fact, it aims to restrict access to abortion by creating unnecessarily burdensome regulations on providers — demanding that doctors providing abortion services at clinics get admitting privileges at nearby hospitals and demanding that clinics needlessly become more like full-service hospitals.

Sarah Kliff at Vox has a great summary of how Scalia’s death impacts the case (and the broader implications of the case itself). Here’s Kliff: 


Scalia was a near certain vote in favor of upholding the Texas law. Without him, things get a bit more complicated. But the key thing to know is this: without Scalia, its very hard to see a world where the Supreme Court affirms the Texas law’s constitutionality.

Here’s why: there are near-certainly four votes against the law from the Court’s liberal wing. And it’s possible there are five votes, as justice Anthony Kennedy has been a swing vote on abortion cases.

The best case outcome, then, for the abortion rights opponents, is a 4-4 tie. In that case, the ruling of the circuit court is upheld without setting any constitutional precedent.

This would let the Texas law stand, since the Fifth Circuit Court of Appeals ruled in favor of the restriction. But it also wouldn’t give other states the clear signal that these types of restrictions are constitutional — something that abortion opponents would very much like to see.

In other words, while it’s still possible (if Kennedy sides with the plaintiffs) that the Texas law will be upheld, it would establish no precedent. If a state like Arkansas tried a copy-cat set of laws, a new set of plaintiffs could file suit to try to stop them.  

Jonathan Chait at New York, meanwhile, notes the impact of Scalia’s death on Obama’s Clean Power Plan: 


The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.

Again, it can feel a bit ugly to do this sort of analysis, but the practical impacts are impossible to ignore. The Paris climate agreement looks much more viable today than it did yesterday. “The death of Supreme Court Justice Antonin Scalia is a sad and tragic event for his loved ones, including 28 grandchildren and a large network of admirers,” Chait writes. “The political stakes for the country, its governing institutions, and, yes, the planet dwarf them in scale.”

Chait notes that a Court often stuck in a 4-4 tie will undercut the conservative judicial activism that has marked the Court for years: 

Even if the Senate does not confirm any successor, then, Scalia’s absence alone reshapes the Court. Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising — or, more precisely, resurrecting — theories that allow the Court to strike down vast swaths of laws conservatives find objectionable. Activist Courts require a majority. That is now gone.

ThinkProgress notes other cases that could shift now that the Court has gone from a conservative majority to a 4-4 split: 

United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.

Birth Control
Geography could also play a significant role in deciding women’s ability to access birth control. To date, every federal appeals court to consider the question but one, the Eighth Circuit, has upheld Obama administration rules enabling women to obtain health plans that cover birth control even if their employer objects to contraception on religious ground.

There is a good chance that Justice Anthony Kennedy, a conservative who occasionally votes with the Court’s liberal bloc in politically charged cases, could vote to uphold these rules as well, producing a 5-3 vote. If Kennedy votes with the conservatives, however, women’s access to birth control will vary from circuit to circuit. Though it is likely that most circuits will follow the majority rule and uphold the rules, women in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) will not be as lucky.

Public sector unions are saved, at least for now. After oral arguments in Friedrichs v. California Teachers Association, it appeared likely that an ambitious effort to defund public sector unions would gain five votes on the Supreme Court. Now this effort only has four votes. Moreover, because the plaintiffs in this case lost in the court below, a decision affirming the lower court in an evenly divided vote is effectively a victory for organized workers.

Similarly, the plaintiffs in Evenwel v. Abbott, a case that could have effectively forced many states to redraw their congressional maps in ways that would give more power to white voters and less to communities with large numbers of immigrants, almost certainly will not have five votes. Because the court below ruled against these plaintiffs, states will not have to redraw their maps, for now.

Note that a 4-4 split in the birth control case would protect workers’ access to birth control in most of the country but not in Arkansas. That’s because the Eight Circuit, alone among federal appellate courts, ruled that religious objectors could refuse to comply with federal rules intended to ensure access to birth control for people with employer-sponsored insurance. The one to watch in that case is Kennedy — a 5-3 decision would uphold the Obama administration rules across the country. 


Scalia’s absence may not matter in Fisher v. University of Texas, a challenge to affirmative action programs (the programs were upheld by a lower court). Justice Elena Kagan recused from the case, so the Court could overturn that decision and bar the affirmative action programs with a 4-3 majority. This case will come down to Kennedy, who appears to be on the fence (that would have been true even with Scalia because Kennedy voting to uphold the affirmative action programs would have produced a 4-4 tie that kept the programs in place by deferring to the lower court.   

Excellent roundup of the big cases that will be impacted by Scalia’s absence at the Washington Post.