The Scalia Election


The Scalia Election

Jul 25th, 2016 4 min read

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

The just-concluded Supreme Court term starkly makes the case for why the Court should be at the forefront of every voter’s mind this November. The sudden passing of Justice Antonin Scalia in February led to deadlocks and compromises in some of the biggest cases of the term, highlighting the importance of every seat on the Court.

Whomever the next president selects as Scalia’s replacement will be crucial to either preserving or eroding our rights, given the fact that the Court routinely hears cases involving just about every aspect of Americans’ lives. Consider the following cases:

In Friedrichs v. California Teachers Association, public-school teachers who opted out of union membership challenged the requirement that they subsidize the costs of collective bargaining. The teachers objected to being forced to pay for the union’s lobbying the state over teacher salaries and benefits, arguing that this violates their First Amendment free speech and associational rights. This case was seen as the best chance of reversing a bad precedent dating back to the 1970s that allowed the government to force employees to pay a “fair share” for collective bargaining, even if they opted out of union membership. Scalia was considered a likely fifth vote for the teachers, but following his passing, the case ended in a 4-4 tie.

In Zubik v. Burwell, numerous religious organizations, including the Little Sisters of the Poor, colleges, and charities challenged Obamacare’s requirement that religiously-affiliated non-profit employers provide employee health insurance that covers potentially life-ending drugs and devices. The Court issued a short, unsigned opinion instructing the lower courts to reconsider these claims in light of the government’s belated admission that it could provide the mandated coverage without forcing the employers to violate their religious beliefs. While this was a victory for the Little Sisters and other challengers, the justices did not rule on the merits of their claims. It’s hard not to imagine the full-throated defense of religious freedom, like in Burwell v. Hobby Lobby (2014), the Court might have issued had Scalia still been on the Court.

In Fisher v. University of Texas at Austin, Abigail Fisher sued the school after she was denied admission, arguing that the school discriminated against her because she is white. The case reached the Supreme Court twice, with four members of the Court ruling this term that the school’s race-conscious admissions program does not violate the Fourteenth Amendment’s Equal Protection Clause. Justice Elena Kagan recused herself, so the case still may have ended up tied 4-4 had Scalia been on the Court. It’s possible, however, that Scalia could have persuaded the author of the majority opinion, Justice Anthony Kennedy, to write a different sort of opinion. Kennedy’s opinion in Fisher II betrayed two-and-a-half decades of his own equal protection jurisprudence and gutted his prior opinion in the case, leaving many Court watchers scratching their heads.

In Whole Woman’s Health v. Hellerstedt, abortion clinics and doctors challenged Texas’ law updating the health and safety standards for clinics and requiring doctors who perform abortions to have admitting privileges at a nearby hospital. They claimed that these regulations were intended to limit women’s access to abortion, while the state argued that its common sense regulations advanced women’s health and safety. Five members of the Court concluded that neither provision advanced the health of women and instead placed an “undue burden” on them. In an opinion by Justice Stephen Breyer, the Court rejected its longstanding precedents to rule in favor of the clinics and doctors. Once again, all eyes were on Kennedy since he was the only justice to join the majority decision who also was on the Court at the time it decided Planned Parenthood of Southeast Pennsylvania v. Casey (1992), setting up the undue burden framework. Likewise, he authored Gonzalez v. Carhart (2007), finding that such regulations are subject only to rational basis review—the lowest standard of review. Scalia’s absence seems to coincide with a change in Kennedy. Though he has long been considered the “swing” vote on the Court, now he is rejecting his own precedents. Perhaps it was Scalia who kept Kennedy from going off the rails in areas where he traditionally had been more conservative.

In United States v. Texas, the Court split 4-4 on the Obama administration’s authority to unilaterally change the law and give legal status and work authorizations to almost 5 million illegal aliens. Since the justices were unable to reach a result, the preliminary injunction issued by a district court judge in favor of Texas and 25 other states stands as the case continues. This likely means that the program is dead for the reminder of the Obama presidency, and the next president may decide to rescind the program or not defend the prior administration’s actions in court. Thus, this is a win for the separation of powers because at its core this case underscored the importance of each branch of government respecting the limits of its authority. Scalia was a strong defender of the separation of powers, and he was not shy about chastising members of any branch of government when they stepped out of line. Imagine the harsh words he may have had for the administration had he been on the Court when it considered this case.

These cases demonstrate the magnitude of issues the Supreme Court regularly considers each term. That’s why every justice matters, and why voters should consider what kind of justice the next president will put forward to replace Scalia. Another Obama justice likely would have ruled lockstep with the Court’s liberal block, allowing the administration to violate the separation of powers and trample religious freedom; restricting states’ ability to ensure women’s safety comes before the abortion industry’s profits; limiting public employees’ speech and associational rights; and permitting race-based discrimination at our nation’s colleges.

Scalia’s seat is not the only one at stake. The next president may have the chance to appoint several justices over the course of the next eight years. This November, voters should think about why the Supreme Court matters.

Originally published in The Ripon Forum

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