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February 18, 2016

We’re One Justice Away…

The passing of Antonin Scalia left more than a cloth-draped empty seat.

The passing of Justice Antonin Scalia left far more than a cloth-draped empty seat on the High Court’s bench. It also left a docket of undecided cases with far-reaching implications for Liberty.

Chief among these are Whole Woman’s Health v. Hellerstedt, challenging Texas abortion restrictions; Little Sisters of the Poor Home for the Aged v. Burwell, fighting ObamaCare’s contraception mandate; Friedrichs v. California Teachers Association, arguing public employees should not be forced to support a public-sector union; United States v. Texas, challenging Barack Obama’s executive order on immigration; and Fisher v. University of Texas at Austin, questioning the legality of affirmative action in college admissions.

In any cases in which the justices already cast their votes but the decisions have not yet been made public, Justice Scalia’s votes are now void. This may, for example, be the scenario for Friedrichs and Fisher, both of which were argued before Scalia’s passing. How this will affect cases depends on the vote counts. If votes were cast and Scalia’s vote does not affect the outcome of a case — for example, if he were a dissenting opinion or in a majority of more than five, then the cases will be decided by an eight-member Court.

If Scalia’s passing means a 4-4 outcome, however, that’s where it becomes tricky.

Some argue that a tie vote would uphold the lower court’s ruling, but that’s not necessarily the case.

Tom Goldstein, Supreme Court practitioner and writer, initially concluded a tie would mean the lower court’s decision is “affirmed by an equally divided Court.” He later said his conclusion was wrong and wrote, “There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.”

In other words, the Court may hear oral argument again in both Friedrichs and Fischer once a new Justice is confirmed — which may not be until next term.

As for cases yet to be argued this term, they will still be heard, but if the vote is tied, the justices may order the cases reargued at a later date.

In short, given what’s at stake as a whole for life and Liberty, the importance of Scalia’s untimely absence cannot be overstated. As we noted earlier this week, “[W]ith a series of 5-4 opinions from the High Court in recent years deciding the scope of our Second Amendment right to keep and bear arms, our First Amendment rights as pertains to political speech, the legal definition of marriage (and in the process putting our freedoms of religion, speech and assembly at risk), it is absolutely imperative that Republicans hold out for a strict constructionist in the mold of Scalia.”

Indeed, as Senator Ted Cruz warned, “We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states. We are one justice away from a Supreme Court that will reverse the Heller decision, one of Justice Scalia’s seminal decisions that upheld the Second Amendment’s right to keep and bear arms. We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.”

Cruz is right.

While the plaintiffs now before the Court may get a chance for a “do-over” if the Court orders their cases re-argued, once a new Supreme Court justice is confirmed, there is no do-over.

That’s why the words of Professor Robert P. George of Princeton University could not be truer: “We don’t need ‘balance’ on the Supreme Court, and Republicans should not claim that we do. We need faithful constitutionalists. Period.”

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