With the death of conservative Justice Antonin Scalia, a narrowly divided Supreme Court now enters even trickier terrain. Tie votes and tougher calculations will become the order of the day.
Scalia appeared poised this term to help a slender conservative majority upend California teacher union fees, a University of Texas affirmative action scheme and more.
Now, the court that decided 20 percent of its cases last term on the closest possible 5-4 margin is reduced to an eight-member body that is evenly split between Republican and Democratic appointees.
And with the Republican-controlled Senate unlikely to confirm a nominee before oral arguments end in April, a litany of 4-4 ties could result for some of the nation’s most pressing legal controversies.
These tie votes could have some surprising and, for Scalia’s fellow conservatives, unwanted consequences.
In January, for instance, Scalia hammered at California Solicitor General Edward C. DuMont over the issue of mandatory fees charged by the California Teachers Association. Conservatives challenge the fees as an infringement on non-members’ First Amendment rights, and Scalia made crystal clear he was prepared to sustain the challenge.
“Why do you think the union would not survive without these fees charged to non-members of the union?” Scalia pointedly asked DuMont. “Federal employee unions do not charge fees to non-members, and they seem to survive. Indeed, they prosper.”
The case, called Friedrichs v. California Teachers Association, further underscores the significance of Scalia’s departure. The teachers association won at the lower level, in a decision by the 9th Circuit Court of Appeals. That was fine with conservative challengers, whose intention all along was to reach the Supreme Court and get an unwanted 1977 precedent-setting decision overturned.
Now, though, the likelihood exists of a 4-4 tie, in which case the lower court’s decision is upheld.
In another consequence, the challenge to affirmative action in the case called Fisher v. University of Texas, which the court heard in December, could now come to a different conclusion, as liberal Justice Elena Kagan had already recused herself. Had he lived, Scalia would have voted against the university's affirmative action plan.
“There are those who contend it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to them going to a less advanced school,” Scalia said during the oral argument.
Scalia’s comments during the affirmative action argument drew liberal fire, but often his remarks drew laughter. He was, according to legal scholars who have analyzed oral argument transcripts, the funniest justice; or, at least, his comments were the ones most likely to be followed by laughter.
In addition to his occasionally caustic humor, Scalia made his mark on the bench by periodic forays across the ideological divide, sometimes joining more liberal justices on matters involving privacy and criminal law.
“Scalia was a champion of ensuring that criminal laws stay within the clear constitutional boundaries that protect our individual rights and liberties,” noted Marc Levin, policy director of the Texas-based group Right on Crime.” He was particularly concerned about over criminalization.
Scalia’s absence from the court he joined as a Reagan administration appointee in 1986 will be felt in other ways. He was one of the court’s most frequent dissenters, filing 19 separate dissenting opinions last term, according to a tally by SCOTUSBlog. Only his fellow conservative, Justice Clarence Thomas, penned more.
On the bench, during oral arguments that usually last an hour, Scalia was a distinctive and sharp-tongued interrogator, who spoke often and who rarely left doubts about where he stood. Last term, he asked an average of 22 questions per argument, more than any of his colleagues.