Assessing Impact Of Scalia's Death On U.S. Supreme Court | Eastern North Carolina Now

    Publisher's note: This post was created by the staff for the Carolina Journal, John Hood Publisher.

    RALEIGH     The unexpected death of Associate Justice Antonin Scalia overshadowed all other news emerging from the U.S. Supreme Court during the past year. Pundits and legal theorists will be assessing Scalia's long-term significance for years to come. In the meantime, Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review, is focusing on the short-term impact. Scalia recently reviewed the high court's 2015-16 term for the Federalist Society in Raleigh. He shared highlights from that presentation during an interview with Mitch Kokai for Carolina Journal Radio. (Click here to find recent CJ Radio episodes.)


    Kokai: Just how significant was it for the court's term that Justice Scalia passed away, leaving them with just eight justices rather than nine?

    Shapiro: Well, it was significant, of course, but in ways different than most people think, in the sense that, obviously, his passing cast a pall, put a black ribbon, metaphorically speaking, on the term. Most terms, journalists [and] pundits strain to concoct some sort of theme about the court's turn to the left, or the right, or some other sort of way to combine disparate cases into a narrative.

    Here there actually was a theme. And that is that the shock, and then the effect, and the court dealing with the change. And in a presidential election year, which is a very strange time to be dealing with this sort of event.

    But in practical terms, regarding the cases that were on the court's docket this term, his vote wouldn't really have made a difference in almost anything. The one major one, where it would have, is a case called Friedrichs v. California Teachers Association, which involved worker's rights who are nonmembers of unions in the public sector - whether they can be forced to pay nevertheless a portion of the union dues that go toward collective bargaining.

    ... I thought if Scalia had been there, those laws would have been struck down. And they're in place in about half the country. We have a natural experiment: 25 states have them, 25 don't. Scalia's vote would have struck it down. Without him, the 4-4 split affirmed the lower courts. So they still stand.

    But apart from that one case ... big surprise in the affirmative action case: [Justice Anthony] Kennedy, for the first time, upheld a use of racial preferences. He's never done that. He's never closed the door, but he's never actually found a program that he likes, until this one. But that ruling was 4-3. If Scalia had been there, it would have been 4-4. The lower court still would have been affirmed. The program still would have been in place. We wouldn't have had an opinion, but the opinion is less significant than the actual result.

    The abortion case, Whole Woman's Health, that ruling was 5-3, again Kennedy joining with the liberals. If Scalia had been there, it would have been 5-4, same result. The immigration case ended up 4-4. President Obama's executive actions on immigration, I was pretty involved in that, filing briefs all the way through, generally on behalf of people who support immigration reform, but who believe that it takes a law to change a law. ... The court split 4-4, leaving in place the block - the injunction - the lower courts had put in. With Scalia there, it would have been 5-4, with an opinion leaving in place the injunctions.

    So again, for practical purposes, all of these big cases that you can look at, Scalia's vote really didn't make directly that much impact. It would have had an impact in terms of his writing in certain ways. It certainly would have changed the media coverage, and the so-called narrative that people would have been describing.

    But as I said, other than that one worker-rights case - come to think of it, there were only four 4-4 splits - those narrow splits, the exact split where the court does not issue an opinion. And there were only four 5-3 or 4-3 cases where his vote might have had some effect, but not necessarily.

    So going forward, obviously, his vote and his pen make a significant impact. And already we're seeing the types and the numbers of cases that the court is putting on its docket for next term. That's slowed down, and they're not really taking controversial cases. But directly for this term, his passing, as I said, has not had as much of an impact as a lot of people might think.

    Kokai: Exploding, to some extent, this narrative we always hear about the 4-4 [split] with Kennedy as a swing vote. As you were just saying, only in one case might you have seen that sort of reaction. Otherwise, the cases came out differently than what the pundits and prognosticators would often say.

    Shapiro: Yeah. This is just another one of those typical terms where Kennedy is king, and wherever he goes is where the court ends up. So we had a few years where people were saying that [Chief Justice] John Roberts had recaptured the court for himself with the Obamacare cases, for example, ... and certain other things. But in this term, Kennedy really was the only one. There were only four of those tightly split [cases]. With Scalia [they] would have been 5-4 cases, and [Kennedy] was the only one in the majority in all four of those.

    So again, for the future and for kind of the huge loss of Scalia's passing due to his importance in terms of jurisprudence, and legal theory, and all the rest of it, when you really look down at the nitty-gritty, you know, there were some cases the conservatives won, some cases the liberals won, some very technical ones. And it's much more of a conventional term if you are able to look past the incredible shroud, really, of Scalia's absence.

    Kokai: One of the big issues that is beyond actually the cases that came out this time, though - but it deals with the issue that we've just been talking about, that is that empty seat on the court - is who sits there next. We know that President Obama has made a nomination. The Senate has not taken any action and, fairly early on, said it wasn't planning to. What kind of impact do we have on a court if the justices remain sort of in eight-justice mode for the foreseeable future?

    Shapiro: First, we have to understand that even if the Senate had acted in due course on Merrick Garland's nomination, Judge Garland would not have joined the Supreme Court in time to consider any cases this term. So this is all about how quickly a ninth seat is filled for next term.

    And at this point, even if he's, say, confirmed either in the lame-duck session or around the election time, it would still be halfway through next term where he, or whoever the next justice is, would be joining the court.

    This isn't that anomalous, historically speaking. If you look at the modern era, say after World War II, ... there have been plenty of periods where the court has had eight members or even seven. And every year, there are cases where justices recuse for financial reasons or for some other reason that they don't participate. It's not that the court is hamstrung. Sometimes the court holds over cases. They wait until there is a full complement to make that decision.

    A lot of people, myself included, thought that's what would happen with the contraceptive mandate case this term, Zubik v. Burwell, because there was a split in the lower courts, so the court couldn't simply release a 4-4 opinion because that would result in a Schrodinger's mandate, which was legal in part of the country and not in the other. Instead, John Roberts kind of fudged it and forced a facilitation in the lower courts, kind of punting that issue.

    But overall, you know, this is a unique situation. It's really unprecedented. We've had vacancies in presidential election years. But, for example, the last time that a vacancy that arose in a presidential election year was also filled before the election was 1932. The last time it was confirmed by a Senate of the opposite party to the White House was 1888 -you know, the time of top hats and big bushy sideburns. So a very different time than today. The court played a very different role than it does.

    And to be clear, it's a political argument that we're having about what the Senate should or should not be doing. It's surprising, I suppose, that Senate Republicans found some steel in their spines. That's not a frequent occurrence, but that's the position they took. And since they weathered the first few weeks of the public relations assault, this is where we are and where we're going to be at least until the election.