Sunday, April 17, 2016

Conservatives on Skids Before Scalia's Death

      In baseball, the tie goes to the runner. At the Supreme Court, a tie goes to the lower court. Thus, when eight justices are evenly divided, the Court’s decision reads in its entirety, “The judgment is affirmed by an evenly divided Court.”
      So far this term, Justice Antonin Scalia’s death has resulted in two 4-4 decisions. Conservatives won a minor victory in one that narrowed the federal credit discrimination law. But liberals scored the bigger win in Friedrichs v. California Teachers Association by rescuing from a likely overruling a 40-year-old precedent vital to the financial security of public employee unions. The justices’ individual votes are not announced in such cases, but the justices likely divided in each along the usual conservative-liberal lines.
      More deadlocks seem likely despite what Justice Elena Kagan has described as Chief Justice John Roberts’ efforts to avoid them. Conservatives are poised to prevail if tie votes emerge in two remaining big cases, both decided by the predominantly conservative federal appeals court for the Fifth Circuit.
      The justices appeared equally divided in arguments last month on a Texas law, upheld by the appeals court, that could force most of the state’s abortion clinics to close. And they may well be equally divided in arguments on Monday [April 18] as the Obama administration seeks to overturn the Fifth Circuit’s decision blocking the president’s policy of “deferred action” on an estimated 4 million undocumented migrants.
      Scalia’s death in February has deprived the court’s conservative bloc of the needed fifth vote to overcome a united bloc of four liberal justices. But the court’s decisions already announced in cases argued before Scalia’s death show that the Roberts Court, even with Scalia’s votes, was turning its back on some of the biggest items on conservative groups’ wish-lists.
      In a major setback for Republicans and conservatives, the court earlier this month rejected an effort to upset the established practice of using total population as the basis for applying the “one person, one vote” rule in redistricting cases. Republicans and conservative groups had invested time, money, and effort in a suit seeking to count eligible voters instead of total population in drawing equal-population districts.
      The proposed change was widely seen as likely to benefit Republicans by reducing representation in traditionally Democratic urban areas with significant numbers of noncitizens and children. All eight of the justices rejected the Texas voters’ argument to require eligible-voter population as the only basis for equalizing districts. Justice Ruth Bader Ginsburg’s opinion for six of the justices in Evenwel v. Abbott cast doubt on using voter population at all, but two conservatives — Clarence Thomas and Samuel A. Alito Jr. — suggested state and local government should have that as an option.
      Scalia’s vote in the case, argued in December, is undisclosed, but he was oddly silent during the arguments — suggesting perhaps that he recognized the plaintiffs’ argument as a nonstarter. In any event, Roberts and Justice Anthony M. Kennedy gave the liberal bloc two votes for throwing cold water on the proposed change.
      Roberts and Kennedy similarly sided with the four liberals in an important class action case decided in March. The 6-2 decision in Tyson Foods, Inc. v. Bouaphakeo upheld a $2.9 million award against Tyson for failing to pay meat plant workers overtime for the time spent in “donning and doffing” protective gear required for their jobs. Plaintiffs used a statistical study to estimate the “average” time required, but the company — backed by major business groups — wanted a flat rule against the use of so-called “representative evidence.”
      Kennedy rejected the argument. “A categorical exclusion . . . would make little sense,” he wrote. Thomas and Alito dissented. Scalia’s vote in the case, argued in November, is again undisclosed, but given his hawkish stance against class actions in previous cases he likely joined the other two conservatives in dissent.
      Kennedy also gave the liberal bloc a crucial vote in an earlier effort to make class actions more difficult for plaintiffs. In Campbell-Ewald Co. v. Gomez, the court in December blocked business defendants from thwarting potential class actions by offering the named plaintiff the full amount of his or her claimed damages. Ginsburg wrote the majority opinion; Thomas concurred in the judgment. Scalia was one of three dissenters, along with Roberts and Alito.
      The two most closely divided criminal law decisions of the term so far also ended with liberal rulings. In Montgomery v. Louisiana, the court decided that its earlier decision barring mandatory life-without-parole sentences for juvenile murderers applies retroactively. Scalia was one of three dissenters in the new decision, issued in January.
      This month, the court in Luis v. United States blocked the government from freezing a defendant’s legitimate assets if needed to pay his or her lawyer. The lineup in the 5-3 decision crossed usual ideological lines: Kennedy, Alito, and Kagan were the dissenters. Scalia’s vote is again undisclosed.
      The fragmentation of the conservative bloc underscores Senate Republicans’ stakes in blocking President Obama’s nomination of federal judge Merrick Garland as Scalia’s successor. In an earlier era, Garland could have won unanimous confirmation — as Kennedy did in 1988. But today’s Republicans are interested in confrontation, not consensus, with no regard for the effect on the court or its reputation.


  1. In an earlier era, Bork could have won unanimous confirmation. But the Democrats were interested in confrontation, not consensus, with no regard for the effect on the court or its reputation.

  2. I think that was the era before any confirmation hearings.

  3. In an earlier era, a swing vote with a controversial nominee near the end of the presidency that was on the decline very well would have received strong opposition. Washington and Madison had rejected nominees. Confirmation wars are different now but not totally so.