The death of Justice Antonin Scalia doesn't just deprive conservatives of a 5-member majority on the U.S. Supreme Court. It threatens to derail a long-term project to roll back the power of regulatory agencies, plaintiff lawyers and the federal government that the court under Chief Justice John Roberts has advanced with remarkable success.
An eight-member court leaves the strong possibility the most contentious cases will end with an even split, leaving the lower-court decision intact and providing no precedent for future decisions. The only alternative is for the two sides to compromise, producing decisions neither liberals nor conservatives are completely happy with.
Here are some of the major unresolved cases of this term whose future has suddenly become harder to predict. The stakes for businesses grow exponentially higher if Republicans prevent President Barrack Obama from replacing Scalia before his term ends in January. The new president has the power to appoint the crucial fifth vote to the court and possibly shift the direction of regulatory and business law for the next 20 to 30 years.
- Clean Power Plan: Scalia presumably was among the five justices voting to suspend the Obama administration’s sweeping plan to reduce CO2 emissions from the nation’s electrical grid. Now the case raises intriguing tactical questions: Sri Srinivasan is a likely candidate for Scalia’s seat but he’s also on the three-judge panel of the Court of Appeals for the District of Columbia Circuit that will hear the challenge to the Clean Power Plan this summer. If he makes it on the Supreme Court, he must recuse himself from reviewing the decision he participated in at the D.C. Circuit – but that would leave a 4-4 split upholding that same lower-court decision. “This could be the plot of a movie,” said Thomas Lorenzen, a partner with Crowell & Moring in Washington and former Justice Dept. attorney.
- Immigration: Conservatives hoped to deliver an important ruling declaring the president’s duty to “take care that the laws be faithfully executed" under Article II of the Constitution prevents him from exercising “prosecutorial discretion” to give semipermanent residency status to more than 4 million illegal immigrants. A 4-4 split will leave the Fifth Circuit’s stay of President Obama’s immigration plan intact but leave the important Article II question unresolved.
- Public-sector unions: Conservatives teed up the dream case with Friedrichs vs. California Teachers Assoc., which promised to overturn a 1977 decision, Abood v. Detroit Board of Education, that allows laws requiring government workers to pay union dues as a condition of employment. The conservatives still have four votes to overturn Abood, but a 4-4 tie leaves the Ninth Circuit decision dismissing the case intact and the issue undecided.
- Class actions: The Roberts court has steadily rolled back the excesses of the class-action bar, issuing rulings that enforce contract terms requiring individual arbitration and requiring plaintiff lawyers to state their claims with precision. This term has three big cases remaining that might now be resolved in favor of plaintiff lawyers. Microsoft v. Baker seeks to overturn a Ninth Circuit decision allowing lawyers to dismiss their cases to get a second shot at having a judge certify a class action. In Spokeo v. Robins, the court must decide whether plaintiff lawyers can sue on behalf of consumers who haven’t suffered any specific monetary loss but might be entitled to statutory damages if a company is found to have violated the law. And it is even more certain plaintiffs will win in Tyson Foods v. Bouphakeo, which challenged an employment class action covering hundreds of employees who arguably suffered little or no harm.
- Affirmative action: The justices were clearly looking for a way to dispense with Fisher v. University of Texas on its second trip to the Supreme Court last December, perhaps by punting it back to a lower court for more fact-finding. With Justice Elena Kagan recused because she was involved with the case as U.S. Solicitor General, conservatives still could muster a 4-3 majority to declare racial and ethnic preferences unconstitutional, but it is unlikely.
- Obamacare: Little Sisters of the Poor v. Burwell is yet another challenge to the Obama administration’s rule requiring religious employers to provide contraceptive care in their insurance benefits. Scalia could have cemented a conservative majority broadening the concept of “substantial burden” from 2014’s Hobby Lobby decision to include merely requiring a Catholic charity to notify the government it won’t provide contraception so its employees can obtain them under an alternate program funded by insurers (and their customers, of course.) Without Scalia, the Tenth Circuit’s dismissal of this case may stand.
- Abortion: The conservative majority was poised to expand the concept of "undue burden" on a woman's right to abortion to include regulations on providers in Whole Woman’s Health v. Hellersted. That now looks unlikely, and while a split will leave draconian laws in Texas intact, the question of how far state legislators can go in making it difficult for women to obtain an abortion will continue to divide courts across the country.
