To be brief on an issue that is certainly going to degenerate into a national political obsession in a Presidential election year when both the leftist fringe of the Democratic Party and the rightist fringe of the Republican Party are gaining traction in early primaries and polling, the sudden passing of Justice Scalia, the most principled constitutional conservative on the present Supreme Court and one of the Court's most influential conservative voices in its history, throws a definitive wrench into the Court's present session. Emphatically, the Roberts Court's ongoing assault on the Voting Rights Act of 1965 and progressive enfranchisement of marginalized electoral blocs, more generally, beginning with the Shelby County case and represented in this session with the case of Evenwel v. Abbott, challenging the definition of "one person, one vote" in drawing legislative districts in Texas, may be over, provided any incoming jurist to the Court cannot be counted as an opponent of liberal voting rights. Likewise, it seems improbable that the Court can now overthrow the mandatory payment agency fees in lieu of union dues charged to non-union public school teachers in California for the service of contract negotiation by teachers' unions, the case in Friedrichs v. California Teachers Association. Public sector unions and agency shops with agency fees as an alternative to union membership are likely to both be spared a major defeat at the hands of the Court. Finally, it seems likely that Zubik v. Burwell, a case involving an accommodation for non-profit religious affiliated employers by the U.S. Department of Health and Human Services (HHS) in the administration of the Patient Protection and Affordable Care Act's (ACA) requirement of women's reproduction service provisions within minimum acceptable insurance coverage, in which the Third Circuit held that HHS' accommodation did not violate the religious freedom of non-profit Catholic charitable organizations, will result in no change to administration of the ACA to non-profit religious affiliated employers. All of the above cases are apt to result in ties between the Court's four liberal justices (Breyer, Ginsburg, Sotomayor, and Kagan) and three remaining conservative jurists (Chief Justice Roberts, Alito, and Thomas) plus the swing libertarian (Kennedy). As a consequence, lower court decisions that were likely to be overturned within the Supreme Court will remain in effect.
On the contrary, Scalia's passing is unlikely to affect the Court's decision in its rehearing of Fisher v. University of Texas at Austin, a case involving racial preferences in college admissions, because Justice Kagan is recusing herself from this case, with which she was actively involved as U.S. Solicitor General prior to nomination to the Court. It would seem probable to me that any decision made by the Court in this case, with a four to three conservative/libertarian majority, would be limited in effect to the particular racial admissions preference in question rather than issuing a broader decision to strike down affirmative action policies in college admissions on a nationwide scale. The latter alternative in a period that has seen the development of the Black Lives Matter movement and an accentuation of African-American activism in the name of racial equality, per se, would be an unqualified partisan bombshell, and Chief Justice Roberts is too politically savvy to allow such a majority opinion to be issued. Likewise, the Fifth Circuit Court's injunction against the Obama administration's Deferred Action for Parents of Americans (DAPA) program, allowing certain categories of undocumented immigrants to obtain legal alien status, in the case of United States v. Texas, is likely to stand if, as expected, the Court ties four to four. Lastly, it seems at least possible that the Court, by a four to four tie, will allow a Fifth Circuit Court decision to stand in Whole Woman's Health v. Hellerstedt, a case in which a women's health clinic performing abortion procedures contrary to newly established statutory limitations by the state of Texas filed suit claiming that requirements mandating that doctors performing abortions must have admitting privileges at a nearby (within 30 miles) hospital and that clinics performing abortions must meet standards for an ambulatory surgical facility effectively operate to reduce the availability of facilities capable of performing abortions without palpably advancing the health of women as the stated intention of the law. However, Justice Kennedy remains a potential swing vote in the case favoring stricter scrutiny of statutory enactments limiting access to abortion procedures and otherwise contravening the established precedence of Roe v. Wade, linking the decision to abort a pregnancy to an implicit right to privacy on reproductive decisions in the U.S. Constitution and limiting the authority of state legislatures to prohibit abortion before the point of fetal viability. Assuming Justice Kennedy sides with the liberals on the Court, the Fifth Circuit's decision that the Texas statute in question effectively satisfies a rationality standard in advancing the interests of women's health would be vacated. Justice Scalia's presence on the Court would have been insufficient to prevent such an outcome.
Acknowledging the potential impacts from Justice Scalia's absence from the Court for the remainder of this term, it remains possible that a vacant seat will remain for the October 2016 term if President Obama either avoids nominating a replacement or is blocked from doing so through the Senate's approval process. In this respect, Obama has made it clear that, with eleven months remaining in his second term, he has no intention of leaving the Court to function with eight justices. On the other hand, both Senate Majority Leader Mitch McConnell (R-Kentucky) and Judiciary Committee Chairman Charles Grassley (R-Iowa) have no intention of allowing President Obama to appoint a replacement justice. As such, the field of battle over the fate of the U.S. Supreme Court is forming around the Constitutional responsibilities of the President to appoint federal jurists, including Supreme Court justices, and those of the Senate to approve Presidential appointments. Insofar as the continuity of a conservative majority and the broader policy issues likely to emerge as judicial questions over the next decade are at stake, it stands to reason that Senate Republicans and Republican Presidential candidates would want to insist that Scalia be replaced by the next Presidential administration. Such a demand amounts to a complete abdication of the Constitutional responsibilities of the executive and legislative branches of the federal government regarding their roles in determining the composition of the federal judiciary, as a whole, and of the Supreme Court, in particular. The American polity has a right to demand that its elected President and its elected Senators follow their prescribed Constitutional duties in order to ensure that federal judiciary can do its job.
If, as expected, Obama nominates D.C. Circuit Court judge Sri Srinivasan, a moderate jurist of South Asian origin educated at Stanford University, to fill Scalia's seat, then, especially in a Presidential election year in which the Republican Party's slate of Presidential candidates appears to be sliding unremittingly to the right (with the possible exception of John Kasich who is liable to depart after Super Tuesday), it may be in the best interest of Senate Republican leaders just to swallow the appointment as a bitter pill under circumstances where they could have fared much worse. If they attempt to block Srinivasan, then they will be forced to confront the criticism of blatant obstructionism from Senate Democrats and from the eventual Democratic Presidential candidate. Moreover, it will become an issue in numerous contested Senate races that could threaten the Republican Senate majority. With all this in mind, the idea that Obama might go out in left field, nominating a distinguished and vigorously partisan liberal Constitutional scholar, amounts to lunacy. Obama, himself, is too politically savvy not to recognize that he has an ideal opportunity to either decisively change the character of Constitutional jurisprudence in the high court with the appointment of an effective centrist or to hammer home the last nails in the Republican coffin for the 2016 elections.
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