The Supreme Court Cases Scalia's Death Will Impact The Most

Justice Antonin Scalia, perhaps the strictest “strict constructionist” U.S. Supreme Court Justice, has died. His legacy will almost certainly be that in every decision he made or in which he participated, he tried his best to apply the constitution, as he believed the original drafters intended it to be applied.  He was very vocal about this.  Many of his detractors claimed that he needed to change with the times, that the constitution was outdated on certain issues.  But his saw it simply and clearly, it was his mission to understand and to enforce whatever the original drafters intended (or perhaps would have intended?).

An immediate impact may be felt in cases such as Whole Woman’s Health v. Cole, No. 15-274 where a conservative majority, led by Scalia, may well have determined that Texas law allowing strict medical restrictions on abortions could have in effect allowed a state a way to ban many or most abortions.  This may have been closest the Supreme Court has ever come to overturning Roe v. Wade (the case which legalized abortions).  In Friedrichs v. California Teachers Association, union rights are at stake on the question of whether states can require union membership as a condition of employment.  Scalia seemed to be on track to help overturn current law and not allow states to require union membership (and agency fees?) as a condition of membership.  Unions’ ability to require fees from everyone at the job, may now remain.  In Evenwel v. Abbott voting rights may be affected and many other cases are now certain to engender much discussion including a case covering religious organizations and contraception under the ACA (Affordable Care Act).

There will certainly be an interesting debate, and many story lines about whether President Obama will be able to appoint a successor or whether congress will successfully block his attempt to do so, while hoping for a more conservative (Republican) president to take office next January.  But until then, the interesting thing is that there are eight U.S. Supreme Court Justices and to paraphrase a baseball term, a tie goes to the Appellee.  That is, those seeking to overturn a law or a decision, if everyone on the Supreme Court participates, will now need a 5-3 majority instead of a 5-4 majority (unless a justice abstains or recuses from a case) because a 4-4 decision is a victory for the Appellee.  

The U.S. Supreme Court as the final arbiter or interpreter of law is a vital institution.  Whether one agrees with its rulings or not, we must have the rule of law and we often need closure and resolution.  Getting it right, accurately applying the U.S. Constitution and maintaining the confidence of the public will continue to be vital, and nothing suggests that the current court will do anything other than continue this quest.  Who will replace Antonin Scalia? Many believe he can never be replaced and that he was one of the greatest scholars ever to serve on the court and are surely hoping his replacement will be of a similar mindset.  Others however are hoping for a less conservative minded judge to hold the seat.  As the Chinese proverb foretells, “May you live in interesting times”.  We certainly do.