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Getting By with Eight Justices

Posted by Julie Keil on
Julie Keil

There has been a lot of discussion of the next appointee to the U.S. Supreme Court and whether President Obama should be able to make the appointment. But there hasn't been a lot about what happens in the U.S. until a new justice is appointed. 

If President Obama is not able to make an appointment before the inauguration of the new president it could easily take until June of 2017 for a new justice to be appointed. 

The new president would have a make a list, have the candidates vetted, and then the Senate would have to hold hearings (or refuse to, which could happen if the new president and the majority party in the Senate are in opposite parties). So, what happens until then? Does the court just not act on cases?

The answer is a bit more complex than that because it depends on the status of the case. Cases that have already been argued and where Justice Scalia was set to give the majority opinion will have to be rescheduled for the next term of the court. It's impossible to know which cases these are at this point since the decisions have not been released.

Some decisions will not be tied. An example is the Fisher v. University of Texas case where Justice Kagan has already recused herself, so the court will only have seven justices for the decision. 

The case involves an affirmative action policy by the University of Texas that gave race a plus factor in the factors regarding admission. The District Court found in favor of the university,while the Court of Appeals found in favor of the Caucasian student denied admission who was claiming the use of race as a plus factor violated the Fourteenth Amendment. 

The court ruled in favor of the student, stating that a strict scrutiny standard needed to be used and sent it back to the lower courts to decide. They again upheld the university and the case was argued in front of the Supreme Court again. Justice Scalia joined in the earlier 7-1 decision. His death leaves Justice Kennedy as the swing vote.

In cases where Justice Scalia was on the majority side in a 5-4 decision, the case now becomes a 4-4 decision. This means that the decision of the lower court is upheld by the court.  

Nine out of the thirteen Circuit Court Appeals have liberal judges in the majority, so many of the decisions that stand could be the opposite of what the court's decision would have been had Scalia been available to decide the case. The most important case here is probably Evenwell v. Abbott, a case involving who should be included when deciding voting districts. 

This is another Texas case, here where the question is whether all people should be counted in a district or just eligible voters when deciding voting districts. The case is an important "no taxation without representation" question that asks whether people such as felons, children, legal residents, and other disenfranchised people, who pay taxes and are affected by governmental action, should be counted when deciding voting districts. 

Most of the people affected are in large urban areas, proportionally occupied by Democratic voters rather than Republicans. Justice Scalia's views were unclear on this but if the case were decided based on the regular 4-4 lines, the decision of the lower court, which found in favor of all people being counted, a liberal decision, would stand.

The last set of cases are ones where the lower court's decision was conservative and would have been upheld if Justice Scalia were able to vote, but the vote only applies to the specific case. This means the cases don't apply to all of the circuits, just to the one involved in the case.  This greatly reduces their precedential value. 

The most critical case that falls under this group is Whole Women's Health v. Hellerstedt, another Texas case where the lower court, a conservative court, allowed the closure of most health clinics in Texas. 

Without Justice Scalia this case will most likely be a 4-4 decision, upholding the lower court's decision to allow the closure of the clinics.  However, the decision would only apply to Texas if the holding is upheld, not to other states, minimizing greatly the impact on abortion rights cases in other states. 

If Justice Scalia, a firm opponent of abortion, had been able to vote in the decision, a decision for the state would have applied to the entire country.

The decision of a Supreme Court justice is a critical one for the country since the justice serves his or her lifetime, not a set number of years.  However, the decision to not consider any nominees also has a significant effect on the country as some critical cases are pending before the court that will make a binding precedent for years. 

A delay in appointing a justice has an effect either way on the legal system and on the rights of citizens and should only be undertaken with great care. I know other bloggers have already written on the right of the president to nominate a justice in an election year, so I've left the issue alone.

Opinions expressed here are those of the author and do not necessarily reflect the views of Andy Rapp, Q-TV, Delta College, or PBS.


Currently Speaking host Andy Rapp

Veteran journalist Andy Rapp has been hosting Currently Speaking since 1999.

Each week, he's joined live in the studio by journalists, academics, and experts. Along with viewers at home, they tackle the local, national, and global issues that matter most.