Why the Court Will Lean Left Even Without a Scalia Replacement [View all]

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http://www.politico.com/magazine/story/2016/02/scalia-death-supreme-court-will-lean-left-without-replacement-213629

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The passing of Justice Antonin Scalia could mark a turning point in the history of American law. Few Justices changed the constitutional-law conversation as much as Scalia did, and the possibility of President Barack Obama’s appointing a replacement could give the court a majority of Democratic appointees for the first time in more than 40 years, promising a big legal shift in the years to come. But even before the full impact of Scalia’s departure can be assessed, his absence is almost certain to change the outcomes of several major cases pending this year before the court, on issues ranging from election law to church and state.

Already, Senate Majority Leader Mitch McConnell has said the Senate should not confirm Scalia’s replacement until after the presidential election in November. Whether he can really stall that long remains to be seen, but even assuming that Obama succeeds in choosing Scalia’s successor, that person will not take the bench for a while. That means that, for the next several months, readers of Supreme Court opinions are likely to find themselves encountering the phrase “affirmed by an equally divided court.” When the court has a full complement of nine justices and everyone votes, there are no ties. But when a justice is recused or otherwise not voting, the court needs a rule to decide what happens to a case in the event of a deadlock. The rule is that a tie vote affirms the decision below, but without setting a precedent for the future. That means that who won in the lower courts matters a great deal. This year, left-leaning decisions in the lower courts are almost sure to survive review in a Supreme Court without Scalia.

One leading example: Friedrichs v. California Teachers Association, a major case in the law of public-sector labor unions. For decades, prevailing judicial doctrine has authorized public-sector unions to operate on an “agency shop” basis, whereby a union represents, and collects dues from, all employees in a certain occupational category within a workplace. Recently, the court has chipped away at these arrangements, generally in the name of the free speech rights of employees; the theory is that individual employees should not have to subsidize advocacy with which they disagree—even if that advocacy redounds to their advantage in negotiations with the employer. Many observers expected Friedrichs to be a watershed case in which the court would overrule a landmark 1977 decision favoring the unions and rule on First Amendment grounds that employees need not contribute funds toward union activities unless they affirmatively choose to do so. That would drastically reduce the political power of unions, because it would cut sharply into their financial resources. But without Scalia, it’s extremely unlikely that the court could muster five votes to overrule the existing doctrine. The union won this case in the court below, and that means that it will emerge victorious, or at least surviving, in a Supreme Court with only eight members.


Then there are the major church-state cases to be argued later this spring. Most prominent is the cluster of cases—Zubik v. Burwell is the headliner—in which religious organizations are challenging the Affordable Care Act’s contraceptive coverage mandate. The legal questions here are intricate, and the challengers were not guaranteed victory even with Scalia on the bench. But their likelihood of success seems remote without him there. In addition, the important case of Trinity Lutheran Church v. Pauley raises the question of whether the government can exclude churches from programs that distribute benefits to other private parties. Once again, the party that was counting on Scalia’s vote lost in the court below, and without him the churches are almost sure to be unable to muster five votes for reversal.




Been curious about the effect of repubs blocking a replacement and found this.