When Antonin Scalia died unexpectedly over the weekend, it threw a bomb in the heart of American politics. It highlighted the rift between the Republican-controlled Senate and the Obama White House in a way that revealed an unprecedented level of polarization. It raised the stakes to a whole new level in the presidential race, and it finally gave politicians the chance to voice the long-held belief that the final year of any two-term president’s tenure basically doesn’t count.
It also disrupted a number of high-profile cases before the Supreme Court, which is very unlikely to have a ninth member for the rest of its current session, the year 2016 in general, or perhaps any point in the future until the president and a supermajority of the Senate share the same party. That has big implications in two SCOTUS cases out of Texas, which have both changed significantly in the days since Scalia’s death.
What It Means For HB2
The winding case of HB2—the omnibus abortion law that started at the Texas Capitol in the summer of 2013—was briefly stepped on by Wendy Davis’s pink sneakers, then sailed through the second special legislative session later that summer. When it wound its way over to Judge Yeakel’s federal district courtroom, Yeakel overturned much of the law, and the Fifth Circuit Court of Appeals, in turn, overturned much of Yeakel’s ruling. The Supreme Court got involved and halted the law from going into effect until its showdown in our nation’s highest court. The oral arguments were slated to begin in early March before the nine justices.
Except now, of course, there are eight justices. Four of them—Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer—have been considered a lock to rule that HB2 is unconstitutional. Two of them—Clarence Thomas and Samuel Alito—alternative, are expected to affirm that Texas (and every other state) is able to pass sweeping regulations that would severely limit the circumstances under which someone could get an abortion. Scalia belonged to the latter group, while Chief Justice John Roberts—who hasn’t ruled on an abortion case with the Supreme Court—is widely believed to be in that same camp. Justice Anthony Kennedy, meanwhile, has always been the question mark in the case, and that hasn’t changed.
What has changed is that, with eight justices, the Supreme Court is extremely unlikely to create a precedent that affirms that every state has the ability to create regulations like those in HB2—which includes a 20-week ban on the procedure, a requirement that all doctors have admitting privileges at nearby hospitals, and more. Essentially, the Supreme Court is tasked with determining what an “undue burden” actually means for someone seeking to obtain an abortion. If they find themselves deadlocked on the issue, there could be no ruling.
That’s less than ideal for everyone. Both sides of the issue have been hungry for a decision: Rep. Jodie Laubenberg, who authored HB2, acknowledged as much back when Wendy Davis was still wearing pink shoes, and the opposition to HB2, represented by the Whole Woman’s Health, brought the suit in the first place. The idea that this could go on without settling the law is an unexpected setback for everybody involved.
But that doesn’t mean that the Supreme Court is powerless here. A 4-4 ruling wouldn’t create a precedent that could lock states in—but it would allow HB2 to go into effect in Texas. If that happens, Texas will very likely be down to eight abortion clinics for the foreseeable future. (At least until another state passes a law similar to HB2, and that case ends up before a Supreme Court with a full bench.)
There’s another option here, though. Potentially, Kennedy (or even Roberts) could side with the court’s liberal justices on HB2, at which point it doesn’t matter that there are only eight justices. A 5-3 ruling carries as much weight as far as setting a precedent as a 4-4 ruling, so the stakes have changed on a national level. Barring one of the court’s liberal justices making a shocking break from their previously held beliefs, laws similar to HB2 can’t be affirmed as constitutional across the country, but they can be found unconstitutional. That doesn’t mean much to Texas, but it means a lot to folks outside of the Fifth Circuit’s domain.
What It Means For Abigail Fisher vs. UT
Abigail Fisher vs. the University of Texas is a major case that could mean the end of affirmative action across the country. Curiously, the case already only had eight justices hearing it—Elena Kagan had recused herself after serving as Solicitor General for the federal government when it filed an amicus brief in the case when it was before the Fifth Circuit.
The case revolves around a challenge from Fisher, a white student who was not accepted by the University of Texas, that the school’s policy of considering race as a factor in its admissions policy constituted discrimination. She sued the school and her lawyers appealed up to the Fifth Circuit, which ruled in favor of UT. Her lawyers then took it to the Supreme Court in 2012.
Without Kagan or Scalia, the seven justices of the Supreme Court are more likely to reach a precedent-setting conclusion. What that conclusion will be, though, is still up in the air, as the judges aren’t guaranteed to rule along their typical split. The Supreme Court first heard Fisher vs. UT in 2012, but didn’t reach a conclusion—instead, the court ruled that the Fifth Circuit needed to apply stricter scrutiny to the case and sent it back down to them by a 7-1 margin (Kagan was still recused; Ruth Bader Ginsburg was the lone dissent).
The Fifth Circuit heard the case again in 2014, and once more found for UT. Fisher’s lawyers then appealed once more to the Supreme Court, which brings us to the point we’re at now. The arguments have already been heard, but Scalia’s opinion will no longer be factored into the decision. That leaves everything to Sotomayor, Ginsburg, Breyer, Kennedy, Alito, Thomas, and Roberts.
We already know exactly how Ginsburg and Thomas feel—they both wrote opinions the first time around on the merits of the lawsuit (Ginsburg found them insufficient to challenge race-based admissions; Thomas found that UT’s policy was unconstitutional). Kennedy, who wrote the opinion for the court, focused mostly on why the Fifth Circuit needed to spend more time with it.
It’s possible that the Supremes kick it back down to the lower court once again. Indeed, if the court is interested in buying more time while they await a ninth member, that might be the best way to handle a case with such high stakes. But if not, a court without Scalia will be making a decision with just seven justices.