Race, religion on a one-justice short U.S. Supreme Court docket

Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.
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We have an unusual set of circumstances at the United State Supreme Court. Instead of nine justices, there are only eight. This situation had a profound impact on some key cases the last term, and it appears we will see more of the same in the upcoming term.

Moreover, the selection of our next president, who will fill the vacancy, will be critical in charting the future of the Court and its rulings. And, given that the next president may very well select the next two or three justices, the stakes are that much higher.

On Feb. 13, 2016, Associate Justice Antonin Scalia of the United States Supreme Court died. Since then, the Court has been operating with only eight justices. This is despite the fact President Obama has nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy. Since that nomination, Republican leaders in the U.S. Senate have made clear the next president, not the current one, should nominate the next justice. Acting on that sentiment, the Senate has failed to hold confirmation hearings for Judge Garland and, given the late date, it is almost certain he will not be confirmed.

In the meantime, the Court has been deciding cases with eight justices. This, of course, provides an opportunity for some unusual outcomes, including the possibility that justices will be split 4-4 on a case. When there is a tie, no decision is actually rendered by the Court, but it does result in the lower court’s decision becoming the final word on the case. Since Scalia’s death, we have seen some significant cases that were impacted by the vacancy.

For example, in Friedrichs v. California Teachers Association, the lower court effectively decided that public employees who choose not to join unions may be required to pay fees for the union’s collective bargaining activities. This was a win for organized labor and, given the 4-4 tie, the lower court ruling was allowed to stand. Had Justice Scalia been on the Court, the lower court ruling would have almost certainly been overturned.

In Fisher v. University of Texas, the Court upheld an admissions policy utilized by the University of Texas at Austin that included race-conscious elements. An affirmative action case, if you will. Justice Elena Kagan recused from the case, leaving seven justices, who upheld the policy in a 4-3 vote. Had Justice Scalia still been on the Court, the vote would have likely been 4-4, resulting in no decision by the Court. Instead, the policy was upheld and now stands as precedent by the Supreme Court that is binding on all lower courts in the federal system.

We are likely to see decisions in the upcoming term, which begins in October, impacted by the vacancy. Of the cases the Court has already decided to take up, most will be heard before the end of the year. Even if the new president acts quickly in nominating a new justice, the process is anything but quick. Depending on which party holds a majority in the Senate after the election, it could be a several month process for confirmation.

Some of the key issues apt to be decided by a less than full court include issues of church and state (Trinity Lutheran Church v. Pauley), racial gerrymandering in creating districts for state legislatures (Bethune-Hill v. Va. Board of Elections) and racial bias in criminal trials (Buck v. Stephens).

The final, and most important point, is the role the Nov. 8 presidential election will play in shaping future decisions of the Court. This is amplified by the fact that, with two justices over the age of 80, the winner might be appointing an additional justice, if not two. Until Scalia’s death, the “conservative”  and “liberal” blocks each enjoyed 4 solid members, with Justice Kennedy often serving as the swing vote (although there are exceptions). With Scalia’s passing, one of the blocks is apt to find a new member and, if it is the “liberal” block, it will have a majority of the Court.

If Hillary Clinton wins, she is likely to appoint a “liberal” justice to the Court. If nothing else, she made clear in her speech during the Democratic Convention that Citizens United must be overturned. Donald Trump, on the other hand, has stated his admiration for the late Justice Scalia and his methods. It seems plausible Trump would appoint a “conservative” justice, although we must recognize there is some unpredictability with any decision by Mr. Trump.

In short, this presidential election will most likely determine which block holds a majority on the Court. If the majority shifts liberal, we may see some dramatic changes in how the Court handles major issues, such as abortion, gun rights, affirmative action and immigration.

To be sure, 1st Amendment issues, including the continuing viability of Citizens United, could be dramatically altered by this election.