Justice Antonin Scalia’s sudden death Saturday shifts the dynamic of the Supreme Court and undermines conservative hopes for far-reaching victories this term on important, highly controversial issues such as abortion, immigration and unions.
If Republican leaders hold to their pledge not to confirm anyone President Obama nominates, it could affect the next term as well, having a dramatic impact on the cases an eight-member court accepts and decides in the term that begins in October.
The battle lines being drawn will probably only add to the concern that Chief Justice John G. Roberts Jr. expressed recently that the officially nonpartisan court is being viewed with the same skepticism that voters reserve for the political branches.
In the short term, conservatives could still prevail on many of the cases before the court this term. But the wins could come in the form of tie votes that preserve the status quo rather than provide precedents that will shape the future.
On other issues, an evenly divided court would mean upholding lower-court victories that liberals were trying to preserve.
“The possibility of big conservative wins this term has gone down dramatically,” said Irv Gornstein, head of the Supreme Court Institute at Georgetown Law Center.
If the court splits 4 to 4 on a case, the ruling simply affirms the decision of the appeals court from which it came, without setting a national precedent. No opinion is issued. And Supreme Court experts agree that votes Scalia would have taken on cases already argued do not count.
In some cases, such as whether Obama properly used his powers to shield from deportation millions of illegal immigrants who have long-standing ties to the country, a divided court could doom the president’s chances of implementing the program. That is because a panel of the U.S. Court of Appeals for the 5th Circuit ruled against him.
But Scalia’s absence might restrict the court from making a more far-reaching decision about the president’s powers, a question that it added when it agreed to hear the case.
In some cases, a diminished conservative majority might mean unexpected victories for liberals.
The best example of that concerns a battle over public employee union fees that the court considered last month.
At oral arguments, the court seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim that their free-speech rights are violated when they are forced to pay dues to the state’s teachers union.
The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.
But the U.S. Court of Appeals for the 9th Circuit, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united in upholding the precedent, a 4-to-4 vote would mean the union victory would stand.
Scalia’s death could even affect cases not yet teed up for the court’s action. Last week, the court, on a 5-to-4 vote, stayed implementation of Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.
The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s granting of the stay did not address the merits of the challenge but indicated the five conservative justices thought the states have raised serious questions.
The stay was unusual because no court had yet ruled on the legality of the plan. Now, the U.S. Court of Appeals for the D.C. Circuit will hear the challenge in June.
If the appeals court upholds the plan, would the four remaining conservatives feel it was worth accepting an appeal if it were clear that it would be impossible to get a fifth vote from one of the liberals?
That sort of gamesmanship will play out in the months before the court adjourns at the end of June. And the result could be that the law would be interpreted different ways in different regions of the country.
For instance, a Texas law that imposes new restrictions on abortion providers was found constitutional by a panel of the U.S. Court of Appeals for the 5th Circuit. A 4-to-4 tie would uphold that finding. But a similar law in Wisconsin was struck down and would be unaffected by the court’s tie in the Texas case.
One option for the court is to hold on to a case and have it reargued in the new term that begins in October. It has employed that option in the past when there was a transition.
But there might seem little reason to do that if there would be no new member of the court until months after a new president is inaugurated in January.
The court’s dynamic will change in other ways.
For the first time in decades, conservatives and liberals will be on equal footing in the eight-member Supreme Court.
Without Scalia, there are four members of the court, all nominated by Republican presidents, who most often vote conservative — Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. But Kennedy is the justice in the middle, voting with liberals on issues such as the death penalty and gay rights.
The court’s four liberals, all named by Democratic presidents, have had success when they have voted together and brought Kennedy, and occasionally Roberts, to their side. They are justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
It is the first time in generations that the court’s ideological divide so neatly aligns with its partisan appointments.
The last three justices — Alito, nominated by President George W. Bush, and Obama’s choices Sotomayor and Kagan — faced opposition in largely party-line votes during their confirmation process even though there was no controversy about their qualifications, Roberts said at a law school speech in Boston.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.
“And that’s just not how — we don’t work as Democrats or Republicans.”
Labels aside, the court will be different without Scalia. He was a liberal attorney’s nightmare at oral argument, a dominating presence who often asked the most questions — and got the most laughs. That bloc of the court will be much quieter without him.
And because of their sway, the conservative justices have never had to be as strategic as their colleagues on the left. They often agreed on the outcome of a case but split over the reasoning. They wrote separately even in major cases; Scalia was famous for not joining an opinion unless he agreed with every word of it, even the footnotes.
And Scalia’s brand of constitutional interpretation, or textualism, sometimes led him to take positions he said he found uncomfortable. He sometimes joined unusual coalitions of the justices in cases such as upholding free-speech rights of those with whom he disagreed, or siding with criminal defendants who challenged law enforcement techniques.