Scalia's Death Undercuts Conservative Hopes on Unions, Abortion
bloomberg.com
Justice Antonin Scalia’s death will have an immediate effect on hot-button legal questions before the U.S. Supreme Court, undercutting conservative hopes of winning sweeping victories in pending cases on abortion, immigration, affirmative action and unions.
Scalia, a larger-than-life figure and judicial hero to legal conservatives, would probably have voted against the Obama administration and its allies on each of those issues. His absence all but dashes hopes that conservatives can put together a five-justice majority.
Exactly what that means will depend on the case. The clearest impact may come in the union dispute, which has threatened to end requirements that public-sector workers in 20-plus states pay fees to their collective-bargaining representatives.
Scalia’s absence means that, even if union foes can win over swing justice Anthony Kennedy, they probably won’t do better than a 4-4 split. That would affirm a lower-court ruling backing labor unions, without setting a nationwide precedent. It would also leave intact a 1977 Supreme Court ruling allowing mandatory fees, a decision union opponents were hoping to overturn.
"What might previously have been a 5-4 ruling against fair-share fees could now be a 4-4 ruling affirming the lower court’s pro-union decision," said Elizabeth Wydra, president of the Constitutional Accountability Center, which backs the union.
Scalia, a 1986 nominee of President Ronald Reagan, was a core member of the conservative wing of the court, which is now evenly divided between Republican and Democratic appointees.
The court could still block President Barack Obama’s plan to defer deportation for millions of undocumented immigrants. In that case, a lower court ruled against Obama, so a 4-4 split would leave in place a bar on the plan. Still, the court wouldn’t be able to issue a ruling that would put broader constitutional limits on presidential authority.
Similarly, in the court’s abortion case, a federal appeals court largely upheld Texas’s regulations on clinics. Although the court could still affirm that ruling with a 4-4 vote, abortion foes wouldn’t win a broader ruling that would give states across the country more freedom to enact restrictions.
The outlook on affirmative action is more complicated. A federal appeals court upheld racial preferences in admissions by the University of Texas. Justice Elena Kagan, one of the court’s four Democratic appointees, isn’t taking part in the case because she was involved in the litigation as an Obama administration lawyer.
Scalia’s death now means the court could split 4-3 in that case, giving opponents of affirmative action a majority, but one that would be unusually vulnerable to being overruled once the court is at full strength.
Scalia’s absence may also hurt the chances for conservatives in cases involving state legislative redistricting and religious objections to contraceptive coverage under the Obamacare health-insurance law. In both instances, conservatives were counting on Scalia’s help in overturning lower court rulings. |
