Twenty-four hours ago, Republicans were headed into what remains of the current Supreme Court term with a solid majority and a docket strewn with some of the most consequential cases in decades. Affirmative action, abortion, birth control, immigration, an effort to shift congressional power to Republicans — all of these issues are before the justices this term.
The issues remain before the Court, but the balance of power just changed. Justice Antonin Scalia, the longest-serving member of the Court and one of its most outspoken conservatives, is dead. When the sun rose this morning, Republicans enjoyed a 5-4 majority on the nation’s highest Court. It sets on an evenly divided bench.
President Obama will undoubtedly nominate someone to fill the vacant seat on the Supreme Court (pro tip: you should probably get used to hearing the words “Judge Sri Srinivasan” a whole lot in the coming months). The GOP-controlled Senate, meanwhile, is overwhelmingly likely to refuse to confirm anyone Obama nominates. News of Scalia’s death had barely broken when one Senate Judiciary Committee member’s communications director offered this assessment:
What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?
— Conn Carroll (@conncarroll) February 13, 2016
The most important rule to bear in mind now that the Court is likely to remain evenly divided for the foreseeable future is that, when the Court divides evenly on a case that is pending before it, the lower court’s order stands and the Supreme Court’s consideration of the case has no precedential value. Ordinarily, it is as if the justices never agreed to take up the case in the first place. For this term, here’s how this rule is likely to impact the Court’s docket:
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.
Another case out of Texas, Whole Woman’s Health v. Hellerstedt, also could lead to confusion if the Court evenly divides. Whole Woman’s Health is the greatest threat to Roe v. Wade to reach the Supreme Court in a generation. If five justices back the Texas law in this case, it is unclear that there will be any meaningful limits on states’ ability to pass anti-abortion laws.
Without Scalia’s vote, however, the chances that the Supreme Court will uphold the Texas law outright is vanishingly small. Should they split 4-4, however, the Fifth Circuit’s decision upholding the Texas law will stand and states within the Fifth Circuit (Louisiana, Texas and Mississippi) will most likely gain broad discretion to restrict abortion while Scalia’s seat remains open. Meanwhile, the fate of the right to choose would rest upon which federal appellate circuit a woman happened to reside in. Women in fairly liberal circuits would likely continue to enjoy the same rights they enjoy under existing precedents, while women in conservative circuits could see their right shrink to virtual nothingness.
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.
One case where Scalia’s absence could matter less is Fisher v. University of Texas, a challenge to affirmative action programs in university admissions. Although the court below upheld the University of Texas’s program, liberal Justice Elena Kagan is recused from this case. Therefore, four votes are enough to make up a majority. If the Court’s remaining conservatives vote against affirmative action, that is enough for them to get their way.
That said, Justice Kennedy did appear somewhat reluctant to kill affirmative action outright at oral arguments (although he may want to task a lower court with the job of killing Texas’ program). In any event, if Kennedy votes with the three liberals who are not recused from this case, what would have otherwise been a 4-4 decision will now be a 4-3 decision in the liberals’ favor.
The Fate of the Earth
As a final note, it’s worth nothing that Scalia’s last act as a Supreme Court justice may have been to supply the fifth vote in a series of orders handed down on Tuesday halting President Obama’s most ambitious effort to fight climate change. If the Court remains evenly divided in this case, it could matter a great deal that the two judges assigned to this case in the court below are Democratic appointees. If they vote to uphold the administration’s policies, that order will stand unless there is a fifth justice who votes to reverse that decision.
SCOTUSBlog's Tom Goldstein argues that the Court is likely to order reargument of cases where it evenly splits, rather than affirming the case by an evenly divided court. As a matter of procedure, reargument would allow the Court to decide matters where it split evenly more quickly, since it would not need to wait for a new case that presents the same issue to make its way through the lower courts. Until the Supreme Court achieves a majority in a particular case, however, the status quo that exists without a final resolution from the justices would remain in place.