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Justice Scalia’s Passing Will Affect Several Significant Cases Pending Before The Supreme Court

Posted on February 25, 2016

Unless you have recently been living under a rock, you have probably heard about U.S. Supreme Court Justice Antonin Scalia’s untimely passing on February 13, 2015 and the impending political fight to replace him.  Justice Scalia had been the longest serving justice on the Supreme Court and was widely known as the Court’s most conservative justice.  Justice Scalia’s passing means that conservatives no longer hold a 5-4 majority on the Supreme Court.  The Court now consists of eight justices, four leaning liberal and four leaning conservative.  In the months and years ahead, Justice Scalia’s passing will likely be a major setback for conservative legal positions.  In the period before Justice Scalia is replaced, if a Supreme Court vote is tied 4-4, it will be as if the Supreme Court never ruled and the lower court’s ruling will stand, but with no national precedential effect.  Below I examine five of the most significant and controversial cases currently pending before the Supreme Court, in which the outcome is now likely to be a 4-4 tie along liberal and conservative lines.

CaseFriedrichs v. California Teachers Association

Issue: Public sector union rights.

Outcome in a 4-4 split: Liberals win based on lower court ruling, but no national precedent.

In this case, the Court is considering whether public employees can be forced under “fair share” laws to pay fees to unions in order to cover the cost of collective bargaining on their behalf, even if they are not members of the union.  The Ninth Circuit held that the answer is yes, but after oral arguments before the Supreme Court with Justice Scalia, it appeared that the Court was about to reverse that ruling and deal a major blow to unions.  However, with Justice Scalia no longer on the Court, it appears that the Ninth Circuit’s ruling will stand.

CaseEvenwel v. Abbott

Issue: One person, one vote and the drawing of legislative districts.

Outcome in a 4-4 split: Liberals win based on lower court ruling, but no national precedent.

Under the principle of “one person, one vote,” states have traditionally attempted to create legislative districts that have roughly equal total populations.  In this case, the plaintiffs argued that districts should instead be based on the total number of potential voters, which would exclude from the calculation minors, unnaturalized immigrants, and felons stripped of their voting rights, likely tilting the process in favor of conservatives.  The lower court ruled against the plaintiffs, stating that it was acceptable for Texas to continue using total population.

CaseUnited States v. Texas

Issue: President Obama’s executive action on immigration.

Outcome in a 4-4 split: Conservatives win based on lower court ruling, but no national precedent.

In November 2014, President Obama issued a controversial executive action allowing certain undocumented immigrants to apply for temporary legal status if they had children who were citizens or green card holders.  However, 26 states including Texas sued to block the action, and the Fifth Circuit Court of Appeals held that the plaintiff states had standing to sue and upheld a preliminary injunction against the Obama administration while the litigation unfolded.  A 4-4 decision would uphold the Fifth Circuit’s decision and President Obama’s executive action would remain blocked in the plaintiff states.

CaseZubik v. Burwell

Issue: The Affordable Care Act’s contraception mandate.

Outcome in a 4-4 split: Conservatives win based on lower court ruling, but no national precedent.

In the 2014 5-4 Burwell v. Hobby Lobby Stores, Inc. decision, the Supreme Court previously held that private businesses can exempt themselves from the Affordable Care Act’s rules requiring employer-based health plans to cover birth control, so long as their owners have deep religious convictions.  After that decision, the Obama administration set out new rules that allowed these companies to opt out of providing coverage for contraceptives while still providing plan enrollees with separate payments for contraceptive services.  However, a number of religiously affiliated nonprofits have sued once again, essentially arguing that the new rules are not good enough.  Most circuits have ruled against these plaintiffs, with the exception of the Eighth Circuit, whose ruling is at issue here.  In the case of a 4-4 tie, the Eighth Circuit’s ruling would stand.

CaseWhole Woman’s Health v. Hellerstedt

Issue: Abortion restrictions.

Outcome in a 4-4 split: Conservatives win based on lower court ruling, but no national precedent.

The plaintiffs in this abortion rights case are challenging Texas laws that have forced about half of the state’s abortion clinics to close since 2013.  The Fifth Circuit upheld two Texas laws requiring abortion clinics to upgrade their facilities to ambulatory surgical center standards and requiring abortion doctors to have admitting privileges at local hospitals.  A split would uphold the Fifth Circuit’s ruling, but create no national precedent.

For questions regarding any of the above cases please contact Todd Harpst or the other attorneys at at Harpst Ross, Ltd. – Business Lawyers for the Construction Industry®, at (330) 983-9971 or

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