Two Supreme Court cases with significant public policy implications previously discussed on Legal Insurrection face very different futures in the wake of Supreme Court Justice Antonin Scalia’s death on Saturday.

Oral arguments in Fisher v. University of Texas and even more more so Friedrichs v. California Teachers’ Association suggested the Court would decide for the conservative position in both.

Now those cases are thrown into turmoil.  The traditional response when a Justice dies after oral arguments but before a written decision has been to either affirm the lower court without setting precedent, or to order.  Either option is at least a temporary setback for conservatives.

Fisher revisited

I previewed the challenge to the University of Texas’s affirmative action scheme in Fisher, here, and discussed the oral arguments, here.   In Fisher, the Court is reviewing UT’s admission system that considers race as one factor among many for admitting applicants who did not otherwise qualify for admission for having graduated in the top-10 percent of their Texas high school class.

As noted in the case preview:

UT’s admissions system is as nearly race-neutral as possible without disregarding race altogether.  Upwards of 80% of relevant admissions are completely race neutral.  For the remaining 20%, race is one of many factors in a holistic approach.  The Court may find itself asking what admissions system incorporating race could possibly pass strict scrutiny if not this one.

The tenor of oral arguments seemed to favor the challengers, implying the Supreme Court might ban consideration of race in admissions as impracticable.  However, technical issues made forecasting a decision and its broader implications complicated:

Assuming that four Justices are set to vote against UT (Chief Justice Roberts and Justices Scalia, Alito and Thomas) and three with UT (Justices Ginsburg, Breyer and Sotomayor), Justice Kennedy is the deciding vote.  (Justice Kagan recused herself because she was Solicitor General when DOJ filed an amicus brief in the case’s first trip to the 5th Circuit.)  If Justice Kennedy votes with the four conservatives, UT’s system is stricken and affirmative action is on life support.

Affirmative action proponents are hoping Kennedy votes with the three liberal Justices.  A 4-4 split would affirm the 5th Circuit’s decision without setting precedent.  However, 4-4 with Justice Kagan absent means the next case will very likely be 5-4 in favor of affirmative action.

The third alternative is a decision remanding with instructions to return the case to the trial court for additional discovery.  This only delays a decision, and Justice Kagan would still have to recuse herself if the case reached the Supreme Court for a third time.  However, the Court would buy some time for another case to develop or for the composition of the Court itself to change.

Or on remand the trial court and 5th Circuit might read the Supreme Court’s cues and hold that UT’s system violates the 14th Amendment.  In that scenario, the Supreme Court could refuse to hear the case for a third time and instead wait for a similar case it could hear with a full nine-member compliment, avoiding some of this case’s unnecessary complications.

The composition of the Court has indeed changed.  The predictable votes now split 3-3, making Justice Kennedy’s vote decisive for either side.  The nicety of a 4-4 punt is gone.  If they order re-hearing, the Justices could still coalesce around a decision to remand with instructions to develop the factual record, but there is little point.  Justice Kagan will still not be able to participate and Justice Scalia’s replacement may not take the bench until after the next president takes office in January, 2017.

This case will very likely affirm the Court of Appeals without a written decision creating precedent.  A substantive decision will have to wait for the next case to come around.

What Happens To Friedrichs?

I previewed a challenge to “agency shop” clauses in public union contracts in Friedrichs v. California Teachers’ Association, here, and discussed the oral arguments, here.

Friedrichs bordered on a sure thing and is a bitter pill to swallow.  Friedrichs challenges the constitutionality of state laws requiring public employees to contribute to their unions’ collective bargaining and related expenses even if they are not members.  These compelled contributions are irreplaceable for public unions struggling with declining membership.

The Court has expressed increasing skepticism of public unions in recent years, and as many anticipated, oral arguments strongly suggested a loss for the unions.

In the aftermath of the bloodbath I opined that Plaintiffs were virtually assured a victory and could reasonably hope for as many as seven votes.

If the vote would have been split 5-4 on ideological lines, it would now be a 4-4 split and the Court will most likely affirm the Ninth Circuit’s decision upholding compelled contributions, but again without setting precedent.  Union opponents would then have to start the long litigation process over, incurring the costs of litigating through the trial and appellate courts and risking a change in the political atmosphere before appearing again before a new, full Supreme Court.  It is hard to foresee what that Court will look like.

If the Justices already voted on the case (which they almost certainly have), and the outcome was lopsided, the remaining justices could proceed and decide the case with a 6-2 or 5-3 majority.  If the Justices re-vote, which is common under any circumstances, the liberal wing could swing back to force a 4-4 split and defer a substantive decision until a new Justice and a potential pro-union vote is confirmed.

Nobody Panic – Yet

Some commentators (notably the New York Times, Reuters and Washington Post) have overstated the hit to conservative causes.

If the Court declines to issue a decision in Friedrichs, that is not quite a win for the unions.  Deferring a decision on the case perpetuates the status quo, but neither creates precedent nor unwinds the recent trend against public unions.  A new plaintiff can file a new suit bringing identical claims tomorrow, or an existing case raising the same issues may already be working its way through the courts.

Fisher was a closer case and the procedural nuances made its potential impact uncertain.  If Fisher had questionable long-term implications even before, not much has changed.

That is not to say Justice Scalia’s death does not have a large impact.  He was not merely a member of the conservative wing, he was its intellectual champion, and we will only be able to assess the implications of his death for the Court and country when we know who will replace him.  A liberal taking Scalia’s seat could be transformative in a way President Obama only dreams of.  A conservative replacement would maintain the status quo.

The Senate leadership has accordingly already asserted that it would not confirm any Obama nominee.  If the Senate perseveres, this puts Scalia’s replacement and the fate of the Court in the hands of the 2016 presidential election winner.  The Senate should not confirm any nominee that would change the balance of the Court, and GOP voters should nominate a candidate with deep and reliable conservative bona fides.