A Delayed Confirmation Will Impact Key Supreme Court Decisions

By Kathleen Clark
         
Early this month, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia, to the Supreme Court. This, of course, comes in response to the shocking death of Supreme Court Justice Antonin Scalia, who passed away in February at the age of 79 while on a trip in Texas. Chief Judge Garland’s nomination will be a hotly contested battle on Capitol Hill and his likely delayed confirmation offers yet another chance to both look back at what Justice Scalia accomplished as the longest-standing member of the court, and to highlight some of the potential outcomes in an eight person Supreme Court for the more contentious legal cases.

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Antonin Scalia was sworn in to the Supreme Court in September 1986, during the presidency of Ronald Reagan. One of the most infamous members of the Supreme Court, he was a self-proclaimed “originalist,” preferring to interpret the Constitution through the lens of the original authors even when in direct opposition with his own preferences.  He was also known for his blunt, often controversial, statements, perhaps most recently noted in the Fisher v. University of Texas case heard by the Supreme Court on December 9, 2015.  While he certainly was, at times, a controversial figure during his tenure on the Court, there is no doubt of his influence as a justice and his dedication to redefining the way policymakers read the Constitution and consider the role of the Supreme Court as U.S. policy continues to progress into uncharted territory. Additionally, he was on record as the funniest of all the justices, creating the most documented audience laugher episodes in court transcripts of all the members of the Supreme Court.

Following several cases throughout the past year, which had more liberal-leaning outcomes, Scalia’s death and Garland’s delayed confirmation leaves the Court and the country in an interesting predicament. There are many key cases passing through the Supreme Court in the near future, many of which the conservatives expected to win. However, Scalia’s absence puts these wins in jeopardy. Additionally, now that the court has only eight members rather than its full-capacity nine, any 4-4 vote on a case will serve to uphold the ruling of the lower court. Here are some of the cases the media and political community believe will be most affected.

•  Labor Unions: The court heard Friedrichs v. California Teachers Association in January, and Scalia was the expected swing vote. The case, which will determine whether or not non-union members must pay “fair share fees” to unions for the cost of collective bargaining, will now likely end with a 4-4- vote, affirming the previous decision in support of these fair share fees.
• Affirmative Action: The court heard Fisher v. University of Texas in December, and Scalia was a strong voice during oral arguments against the University of Texas. However, it is believed that the decision could still go in the conservative side’s favor against Affirmative Action, as more liberal Justice Elena Kagan is recused.
• Abortion: Another Texas case, Whole Woman’s Health v. Cole, will be heard in early March. In the most significant abortion case of the 21st century so far, the court will decide whether or not to uphold Texas’s laws that close or greatly restrict abortion providers and clinics. Unless Justice Anthony Kennedy becomes a swing vote, the case will now most likely end in a 4-4 vote affirming the lower courts decision in favor of the laws.
• Contraception: The Zubik v. Burwell case, to be heard in March, will determine whether or not religious nonprofits, such as charities, schools, and hospitals, must abide by the Affordable Care Act’s contraception mandate, which requires them to provide birth control access through health insurance. Without Scalia, the conservative side must try to prevent a 4-4 ruling that would uphold the lower court’s ruling in favor of the mandate. 

 
While President Obama has his nominee, Chief Justice Garland’s confirmation is not a guarantee. The battle is only beginning on both sides of aisle to gain control of one of the most powerful positions in the United States today. Republicans appear to be sticking to their position to block any nominee presented by the President until after the election, while President Obama and several Democrats have called for a quick confirmation of Garland. One thing, however, is certain: Scalia’s death couldn’t have come at a more important time.



is a 2017 MPP candidate at the University of Virginia Frank Batten School of Leadership and Public Policy. She serves as a Staff Writer for the Third Rail blog.