The Future of the Court, in an Era Without Justice Scalia

Date: April 20, 2016

A Disappointing End to the Friedrich’s Case

It seemed we were on the verge of a momentous victory after oral arguments in Friedrichs v. California Teachers Association. It was clear that we had Justice Kennedy’s crucial swing vote—and indeed we did. With Kennedy’s vote, we had (or would have had) the five votes needed to strike down California’s law mandating that public employees must financially support their unions—which of course leads to an insidious cycle whereby public employee unions lobby for more and more government spending and imposition of regulatory burdens on the private sector. But as fate would have it we lost that crucial fifth vote, not because we had failed to convince Justice Kennedy, not because someone decided to flip their vote at the 11th hour, but because of the unfortunate passing of Justice Scalia.

We knew at that point the best we could hope for was a 4-4 split—a result that would disappointingly result in affirmance of the Ninth Circuit’s decision upholding California’s regime. And that was precisely the result we got. The Court issued a per curium decision on March 29th stating simply: “The judgment [of the Ninth Circuit] is affirmed by an equally divided Court.” It was truly an anti-climatic conclusion to what had promised to be this term’s biggest blockbuster case. In the words of T.S. Eliot: “This is the way the world ends: Not with a bang but with a whimper.”

Friedrich’s Underscores the Importance of Scalia’s Vacancy

Of course, that resolution maintains the status quo, but it does not settle the issue. Far from putting the issue rest, the divided opinion only invites further legal challenges to state laws requiring mandatory financial support for public employee unions. As such, we should expect the issue to percolate further, and ultimately the Court will have to take the issue again to decide once and for all whether Abood v. Detroit Board of Education was wrongly decided. We maintain that it was, and contend that a requirement forcing public employees to financially support a union is fundamentally at odds with our First Amendment jurisprudence. So Big Labor may have dodged a bullet this time, but their house of cards may still fall. Much depends upon Justice Scalia’s ultimate replacement.

Yet this is just one of many issues of concern to the small business community in which Scalia’s replacement will likely count as the decisive vote on the high court.  Looking forward we see cases looming that will likely go to the Supreme Court—where the Court will predictably divide along familiar ideological lines. For example, NFIB is currently challenging controversial regulations from the Environmental Protection Agency and Army Corps of Engineers that radically expand the agency’s power over private property under the Clean Water Act. And at the same time NFIB is challenging the legality of EPA’s Clean Power Plan rule, which seeks to force the states into eliminating coal-based power under the guise of the Clean Air Act. As in the Freidrich’s case, conventional wisdom is that Justice Kennedy is a swing vote; however, the ultimate wildcard is Justice Scalia’s vacancy.

As things are shaping up now, it may be quite some time before we will know who his replacement will be.   Judge Merrick Garland has been offered as a potential replacement, but it seems doubtful that the Senate will confirm his nomination—which is, of course, an absolute requirement for a judge to be empaneled on the Supreme Court. In any event, NFIB recently released a comprehensive report summarizing Judge Garland’s record, and expressing grave concerns that he would predictably side with the liberal wing of the court on the sort of issues discussed here. And if anything, the Court’s equally divided opinion in Friedrich’s underscores the vital importance of Scalia’s vote over the past several decades, and the high stakes of filling his vacancy.

Scalia’s Lasting Influence on the Court, and Uncertainties as to the Future

Perhaps Justice Scalia will be remembered most for his feisty dissenting opinions. But it is interesting to think back to major decisions over the course of his tenure on the Court in which he was in the majority—especially in close cases that would have gone the other way if his vote had been switched out for another Justice Breyer or Ginsberg. Thinking back to United States v. Lopez and United States v. Morrison, Scalia was a crucial vote in striking down federal regulation of purely intrastate conduct. And of course, in NFIB v. Sebelius he was a vital vote on our Commerce Clause challenge to the Affordable Care Act’s Individual Mandate. Had those cases gone the other way, there truly would be no meaningful limit on the reach of federal regulatory powers. (It’s important to remember that NFIB set an important precedent that government cannot force an individual to buy a product or service).  

Or one might recall the Court’s divided opinions in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States, in which the Court struck-down attempts on the part of EPA and Army corps to extend the reach of the Clean Water Act. Without Scalia on the Court, those cases may have gone the other way (depending upon who sat in his place), which would mean there would be no meaningful limitations on the reach of the Clean Water Act today. And the same could be said in numerous other regulatory cases where Scalia voted with a narrow majority to strictly construe the limits of powers conferred upon administrative agencies. 

And on another topic of special concern to NFIB, Justice Scalia was a crucial vote in several important takings cases. Most recently, in Horne v. USDA, the Court held (5-4) that the government could not condition a businesses’ right to engage in commerce on a requirement to surrender a portion of its product, in that case raisins. Likewise in Koontz v. St. Johns River Management District and in Nollan v. California Coastal Commission, Scalia served as a crucial vote—actually writing the majority opinion in Nollan where he set forth an essential principle that government cannot require, as a condition of a permit approval, that a landowner accede to extortionate conditions.

It is sobering to think that those cases might have gone the other way if Scalia had not been on the bench, and to think that, in the future, the Court might roll-back on some of those decisions, or might decide equally important questions without the benefit of his vote in favor of constitutional originalism and strict textualism. We certainly had a reminder in Friedrichs of the importance of his vote. And in the future we may very well feel his absence more poignantly—depending to a large extent on much or little his eventual replacement shares in Scalia’s judicial philosophy.
Can the Court Function with Eight Justices?

In the interim, while we wait to see who will ultimately be confirmed, it is important to understand that the Court can and will continue to function. While Friedrich’s demonstrates that there will be contentious cases where the Court will remain fundamentally divided, the reality is that the Court will still resolve the vast majority of cases. For that matter, the Court decides a surprising number of cases unanimously, or nearly unanimously.

Take for example Sackett v. EPA, which was decided in 2012. In that case the Court unanimously ruled that landowners should be allowed an opportunity to contest EPA’s assertion of jurisdiction over their property when EPA has asserted that they’ve violated the Clean Water Act. A similar issue is now pending before the Supreme Court in Army Corps of Engineers v. Hawkes, in which a small business seeks to contest Army Corps’ conclusion that its property is subject to Clean Water Act restrictions. After listening to oral argument, it seems that the Court is more than likely going to rule in favor the landowner in this case—as in Sackett. It might not be a unanimous opinion, but it will likely be near unanimous. And of course this only illustrates that the Court can and will continue to play a vital role in deciding important issues, even as we must wait in limbo to know who will fill Justice Scalia’s great shoes.

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