Sunday, July 22 , 2018, 2:18 pm | Fair 77º


Lou Cannon: After Antonin Scalia, Risks and Challenges of a Prolonged U.S. Supreme Court Vacancy

President Barack Obama’s choice of a respected, centrist judge for the U.S. Supreme Court seat vacated by the death of Justice Antonin Scalia has challenged the Republican strategy of denying Obama the appointment by leaving the seat vacant.

Obama announced earlier this month that he will name Merrick B. Garland, 63, chief judge of the U.S. Court of Appeals for the District of Columbia to fill the Scalia vacancy.

Leaders of the Republican-controlled Senate want to delay consideration so that the vacancy can be filled by the next president. Leaving the seat vacant could have important consequences for states, businesses, labor unions, abortion clinics and unauthorized immigrants who are longtime U.S. residents.

The court has been at eight members since the Feb. 23 death of Scalia, a towering legal figure and influential conservative. His absence on a closely divided court has already had an impact.

Lower courts held Dow Chemical responsible for price-fixing in an anti-trust case. The company looked to a reversal by the Supreme Court. But without Scalia, a reliably pro-business justice, the likely outcome of the case became a 4-4 tie that would have let lower court rulings stand. Dow settled for $835 million.

Dow may not be alone. Constitutional law professor Lee Epstein of Washington University in St. Louis, quoted in The New York Times, said that 16 precedents involving business, labor unions or tax policy could be at risk if the court changes political direction.

Few issues that reach the Supreme Court are decided by a single vote. In the 2015 term, only 15 of 74 opinions were decided by 5-4 votes, but most of these involved high-profile issues, including a blockbuster decision holding that same-sex couples have a constitutional right to marry.

That decision was written by Justice Anthony Kennedy, the swing voter in 13 of the 5-4 rulings. Kennedy sided with the court’s liberal bloc on eight occasions and with the conservative bloc on five.

“Liberal” and “conservative” are relative terms, defined by the partisan affiliation of the president who named the justices.

Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor were appointed by Democratic presidents. Scalia, plus Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas were named by Republicans.

So was Kennedy, appointed in November 1987 by President Ronald Reagan and confirmed three months later in an election year.

If the 2015 pattern continues on the current eight-member court, liberals will be able to muster five votes when Kennedy votes with them. But the result would be a 4-4 tie when Kennedy votes with conservatives, leaving intact the decisions of lower courts.

Garland is no Scalia, but his track record suggests that he would not automatically side with the high court’s liberals.

Tom Goldstein, a lawyer who has frequently argued before the Supreme Court and operates the SCOTUSblog, said Garland “is essentially the model, neutral judge.”

Garland served nearly two decades on the bench, and as a prosecutor before that oversaw the Oklahoma City bombing and “Unabomber” terror cases. Hours before Garland was named, Sen. Orrin Hatch, R-Utah, called him a “fine man” but inaccurately predicted that Obama would name someone more liberal.

Even if Republicans agree to hold hearings on Garland, the Supreme Court has six major cases on the docket this term likely to be decided with only eight members (or in a case in which Kagan has recused herself with seven).

One major case in which Scalia’s absence is likely to have an impact is Friedrichs v. California Teachers Association, which deals with public employee unions. Judging from comments made by Roberts, Kennedy and Scalia during oral arguments, the court was moving toward a ruling that would have barred public unions from charging workers who chose not to join the union with collective bargaining costs.

Such a decision would deprive unions of millions of dollars that many states now force nonunion members to pay.

Now the likely outcome is a 4-4 tie that would preserve an appellate ruling in favor of the union.

Scalia’s absence could also make a difference in Evenwel v. Abbott, a Texas case that deals with the question of whether all residents or just eligible voters should be counted in the creation of voting districts.

All states and most localities presently count all residents. The plaintiffs in Evenwel v. Abbott challenged that practice with respect to Texas’ state Senate districts, arguing that only eligible voters should be counted, a change that would shift political power from urban areas to rural ones and from Democrats to Republicans.

An appeals court rejected that challenge in 2014. The present Supreme Court is expected to deadlock 4-4 on this case, leaving in place the Texas law that counts everyone.

But once the Supreme Court again has nine members, it could revisit issues on which it is now deadlocked. For this reason, observes law professor Clark Kelso of the McGeorge School of Law in Sacramento, the judicial philosophy of Scalia’s replacement is more important than decisions taken while there is a vacancy.

Even so, says Kelso, who clerked for Kennedy when he was a member of the Ninth U.S. Circuit Court of Appeals, there are drawbacks to a prolonged vacancy. Kelso said it’s “a waste of judicial resources” for the court to spend time on cases it will need to revisit. There are also at least two cases on which the situation on the ground demands immediate attention.

One of these is Whole Woman’s Health v. Hellerstedt, involving a Texas law that requires abortion providers to meet daunting hospital medical standards. A federal district court blocked the law on grounds it would impose an “undue burden” on women by forcing many abortion clinics to close. An appeals court reversed this decision.

If the Supreme Court deadlocks, the Texas law would remain in effect but leave the eventual outcome to a future high court. In the meantime, say abortion providers, clinics unable to meet the new standards would close.

Time is also of the essence in United States v. Texas in which Texas and more than a score of other states have sued to block Obama’s executive order preventing deportation of an estimated 3.6 million unauthorized immigrants who are parents of children who are U.S. citizens or legal residents.

Lower courts have held that Obama exceeded his authority in issuing this order. A tie vote upholding these rulings would be a blow to the administration and the affected immigrants. The Obama administration could well be over and the issue moot before a case on this issue gets back to the court.

But the outcome of United States v. Texas is unclear. As chief justice, Roberts has twice broken ranks with other conservative justices to uphold the constitutionality of the Patient Protection and Affordable Care Act. Kennedy’s position on the issue is a mystery. If either of these justices join with the liberals, the executive order would be upheld.

Even liberals consider Scalia a major loss. His good friend, Ginsburg, said he sharpened debates and forced liberals to improve their arguments.

Kelso said the loss of Scalia “is a big deal for the dynamics of the court” because he was respected by his colleagues and had an outsize influence that may be reflected in the majority of court decisions that were not decided by a single vote.

Garland has a solid judicial record, but it remains to be seen if this is sufficient to prod Republicans to change their strategy of not acting on any Obama nomination to the high court.

He is no stranger to political delay. When he was nominated to the D.C. court by President Bill Clinton he waited two and a half years to be confirmed while the White House and the Senate maneuvered over the size of the court. Eventually, seven Republicans joined a solid bloc of Democrats in voting to confirm him.

Even before Garland was nominated, Sen. Lindsay Graham, R-S.C., warned that Senate refusal to give a hearing to Obama’s nominee, could backfire. He said that if Hillary Clinton is elected president and Democrats win control of the Senate, her nominee for the court may be more liberal than Obama’s nominee.

If that happens, the present Senate could scramble to confirm Garland before Obama leaves office, but the time for doing that would be short if no Senate hearings are held on the nominee before the election.

Whatever else happens, the passing of Scalia and the selection of Garland is likely to make the Supreme Court a front-and-center issue in the presidential election campaign. Scalia, who enjoyed a political argument, would have relished that.

Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.

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