Dive Brief:
- Justice Antonin Scalia’s death is sure to put at least a handful of cases at risk of a 4-4 tie in this session’s Supreme Court docket, and the loss of the ideological head of the court’s conservative wing is expected to shift the balance in future cases dramatically — including those about affirmative action.
- The Chronicle of Higher Education reports Fisher v. University of Texas at Austin, which was heard for a second time this session, will still likely be decided in favor of a conservative majority because Justice Elena Kagan has recused herself and Justice Anthony Kennedy is expected to vote against the university, making the final tally 4-to-3.
- Scalia had been a scathing critic of affirmative action programs for decades and his arguments for color-blind rules affected the outcomes of cases whether he was in the majority or minority, leaving some to suggest the Fisher case ruling may be more narrow without Scalia to push his colleagues.
Dive Insight:
One of the cases Scalia’s death may leave in a deadlock is the Friedrichs v. California Teachers Association lawsuit, which was filed by a group of teachers who argue mandatory union fees for employees who do not join their local union violate their right to free speech. Historically, non-union members have been charged a fee because of the understanding that they benefit from any labor gains the union wins, whether they pay regular dues or not. This case was expected to have ripple effects for public sector unions nationwide and may end in a 4-to-4 tie without Scalia’s conservative vote.
If that is the case, the court may hold off on a ruling until a ninth justice is approved by the Senate. Some Republicans, however, are already insisting the nomination be left to the next president. If President Barack Obama names a successor to Scalia, he will have named three Supreme Court justices during his tenure.