To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: June 28, 2016
Re: Supreme Court Term 2015-16: Lessons on an Extended Vacancy

Introduction

Last fall, our Supreme Court 2015-2016 term preview warned about what, in the Roberts-Alito era, has unfortunately become the standard:

[It] is an extremely conservative Roberts-Alito Court whose new term begins October 5. They have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade. The 2015-2016 term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.

But the term unexpectedly turned into one like no other. Justice Antonin Scalia passed away on February 13, 2016, halfway through the term, guaranteeing that the Court would temporarily have only eight members. And conservative leaders announced within hours of Justice Scalia’s death that they would not consider any nominee put forth by President Obama, no matter who it might be, but would consider only whoever the next president would nominate – a president who would not even take office for nearly another year. This ensured that the Court would remain understaffed not only for the rest of the 2015 Term, but also most if not all of the 2016 Term starting next October.

While this did not affect all Court decisions (certainly not those issued before Justice Scalia’s passing), the vacancy had a profound impact on a number of the Court’s decisions … or its non-decisions, as the case may be. When the justices are divided 4-4 on a case, they simply issue a one-sentence opinion stating that “the judgment [of the lower court] is affirmed by an equally divided Court.” In so doing, the Court upholds just the result, not saying anything about the circuit court’s reasoning, and not creating any precedent or providing any guidance for other courts. Instead, it leaves a nationwide resolution of the legal question open for the future. In the meantime, the lower court’s decision and its reasoning remain binding within that circuit, which may be different from how other circuits have decided the issue.

This term saw a number of such 4-4 non-decisions. Particularly harmful was a 4-4 split in the immigration case, described below, which will have profound impact on the lives of families across this nation. It also saw the justices working to avoid tie votes by ducking issues in one way or another. Consequently, resolution of many important legal questions has been significantly delayed. In some cases, people’s rights under federal law vary from one state to another as a result, exactly the opposite of why Congress passes such laws to begin with, and directly contrary to the reason we have a Supreme Court to be the final arbiter on legal questions.

During this unusual term, the actions and inactions of a Court that is ideologically split 4-4 on so many issues make it crystal clear that the Senate needs to end its misguided refusal to consider Judge Merrick Garland’s nomination, so that the Court can begin its next term in October with the full complement of justices that Congress intended.

One additional point came into greater clarity this term: that it is vitally important who we choose — as President as well as in the Senate — to fill the next vacancies on the nation’s highest court. Certainly, conservatives have taken this lesson to heart; it is notable that this term saw Justice Anthony Kennedy joining with the more moderate justices to produce 5-3 decisions in several important cases, in particular on abortion and affirmative action, much to the dismay of right-wing activists, who are now more energized than ever to make the future of the Court an issue in the 2016 elections. There can be no mistake – the 2016 elections will be Judgment Day for the Court.

 

Split Indecisions

Immigration

United States v. Texas: Perhaps no case better exemplifies the damage that can occur when a vacancy prevents the Supreme Court from resolving an issue than the DAPA/DACA+ case. In 2014, the Obama Administration used the discretion set out in the nation’s immigration laws to temporarily protect millions of families across the country from deportation. Although conservatives called this a usurpation of power, many legal scholars concluded that it was well within the president’s discretion. The court challenge began when conservative state governors chose to file a lawsuit in a district where it stood a good chance of being assigned to a particular judge whose previous judicial actions had clearly been affected by his open and intense political disagreement with the federal government’s immigration enforcement policies. They got the judge they wanted, and he issued a nationwide injunction ordering the Administration not to proceed, pending a full trial. A divided Fifth Circuit panel upheld the injunction.

The Supreme Court heard the Administration’s appeal and, with only eight members, divided 4-4. This did not answer any of the legal questions, but – devastatingly – left the lower court’s nationwide injunction in place pending a trial. Millions of people now have no idea what their status or that of their closest family members may be, because the next president may alter or eliminate the programs, and even if that doesn’t happen, it could be another term or more before the issue gets back to a nine-member Court. All that this vulnerable population can do is wait, forced to remain in the shadows.

The Rights of Working People

Friedrichs v. California Teachers Association: In this case, anti-labor advocates were asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito had already authored two opinions (Knox v. SEIU and Harris v. Quinn) criticizing the reasoning of the 1977 Abood precedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs was that case.

Oral arguments seemed to suggest a likely 5-4 decision, against the unions. But a month later, Justice Scalia passed away. A few weeks later, an evenly divided Court affirmed the judgment of the lower court opinion, which had (consistent with the Abood precedent) upheld the fair share payments. As a result of the 4-4 split in this particular case, Abood (being a Supreme Court case) remains binding precedent for all lower courts throughout the nation, protecting the ability of working people to organize effectively. But uncertainty about this major issue affecting working people remains.

The parties seeking to eliminate fair share fees asked the Court to rehear the case when it is again fully staffed, a request the Court has denied. But if a restored Supreme Court takes a similar case in the future, there can be no question that the identity of our next justice will have an enormous impact on working people.

Affirmative Action

Fisher v. the University of Texas at Austin: In a 4-3 decision, the Supreme Court upheld the University of Texas at Austin’s affirmative action program, a carefully considered plan that has been in litigation for years. (Justice Kagan recused herself from the case because she had been involved in it while at the Justice Department, leaving only seven justices and making a tie vote impossible.) This was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all. Had Justice Scalia been on the Court, the result most likely would have been a 4-4 tie, due to Kagan’s isolated recusal as opposed to an extended vacancy.

Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, and Sotomayor. The majority confirmed that UT has a compelling interest in the educational benefits that flow from student body diversity.

The Fisher opinion also stated that universities must justify the use of race in admissions, even in the minor role it played at UT, with extensive research and careful analysis. The opinion went into great detail about the exhaustive efforts UT had made to determine whether it was necessary to ever take race into consideration in its admissions program. But the Court also noted that circumstances can change: Any university (including UT Austin itself) must regularly update its in-depth analysis of whether their admissions policies are adequately serving the purpose of providing the educational benefits of a diverse student body, or whether any ways to achieve the same goal can be devised that do not use race as a criterion. That would seem to ensure that public university affirmative action programs can be retained or possibly even expanded when necessary, or cut back or even eliminated if they are no longer needed to achieve their compelling goal.

Justice Alito’s dissent (joined by Justice Thomas and the Chief Justice) took a very different view of the case, accusing the majority of “licens[ing] UT’s perverse assumptions about different groups of minority students.”

Multiple people can see the same thing and interpret or experience it in completely different ways, based on their backgrounds and life experiences. That happens on university campuses, and apparently at the Supreme Court, too.

Other Issues

Hawkins v. Community Bank of Raymore: An evenly divided Court was unable to resolve a split between two circuit courts on whether a particular federal law allows lenders to require that a borrower’s spouse guarantee a loan. As a result, this type of discrimination on the basis of marital status is allowed in one circuit, illegal in another circuit, and a complete unknown in the circuits that haven’t considered the question. As a result, the conditions lenders can impose on people under a federal law depends on where you happen to live. Even lenders and consumers in some neighboring states have different rules that apply. The 4-4 tie by the understaffed Court leaves unresolved a legal question that affects borrowers and lenders alike. Also, as noted above, it wholly defeats the purpose of having federal laws, which are supposed to provide uniformity to address national issues. And it defeats the purpose of having a court established by the Constitution to resolve such matters. The Court subsequently denied rehearing in the case, so the confusion will remain until another case raising the issue is presented to the Court.

Franchise Tax Board of California v. Hyatt: In this case, an individual sued California in a Nevada court, without California’s consent, and won. California’s appeal to the Supreme Court had two components. One concerned the substance of the Nevada court’s ruling, but the other was more fundamental: California urged the justices to overrule a 1976 case (Nevada v. Hall) allowing people to sue a state in another state’s court without the first state’s consent. (In that case, a Nevada vehicle on official state business in California collided with another car; the California passengers were allowed to go the California courts and sue the state of Nevada.) The Supreme Court was evenly divided on the constitutional question of overruling the 1976 case, which meant the state court’s judgment that it had jurisdiction over another state was affirmed. As a result, the justices had to address the substantive issue, and on that they were able to reach a 6-2 decision. But the important constitutional question affecting relations among states and the rights of victims remains unanswered, leaving future litigants uncertain whether their lawsuits will be thrown out as unconstitutional.

Dollar General Corporation v. Mississippi Band of Choctaw: This case should have resulted in an important ruling on the authority of tribal courts in certain non-criminal matters. It involved a large chain store that had opened a branch within the Mississippi Band of Choctaw reservation, and a store manager who had allegedly sexually molested a teenage member of the tribe. An evenly divided Supreme Court was unable to address the basic question of whether Native American tribal courts have jurisdiction to hear a tort lawsuit against someone who is not a native American.

 

Deciding Not to Decide

Twisting Religious Liberty Into a Weapon

Zubik v. Burwell: Originally expected to be one of the bombshell cases of the term, this critically important religious liberty case turned out to be a dud, due to the apparent split on the 8-justice Court. Under the Affordable Care Act, the Administration crafted an accommodation to the contraception coverage requirement set forth in the ACA: If religious nonprofits disapprove of certain contraception, they simply tell their insurer or the federal government of their objection, at which point the insurer offers the coverage separately to employees who want it. But a number of conservative religious nonprofits claimed that even filling out a form with that information or otherwise making such a notification violated their free exercise of religion under the federal Religious Freedom Restoration Act (RFRA). Their argument was soundly rejected by every circuit that heard it but one.

A ruling for the religious nonprofits would have expanded the dangerous distortion of religious liberty that the Roberts Court began in Hobby Lobby, opening the door to even more efforts to use claims of religious liberty as a weapon to deny other people their legal rights. But a ruling for the Administration would have shown that this tactic has limits beyond which even the Roberts Court won’t go, hopefully providing some level of protection to populations targeted by the Religious Right.

But with only eight members, the Court took a highly unusual step: Less than a week after oral arguments, and after the justices had taken a vote among themselves on the case, the Court, in what appeared to be an effort to avoid a 4-4 non-decision crafted its own version of a policy compromise and asked the parties to address it. Ultimately, when the Court issued its final ruling in May, it did so in a unanimous unsigned opinion vacating all the lower court opinions on the subject and directing them to let the parties try to reach an agreement on their own. Buying itself time, the Court determined that if the Administration and the numerous religious nonprofits in litigation couldn’t reach agreement, (and agreement is highly unlikely), then the lower courts should readdress the issue, and the Supreme Court could eventually hear an appeal and settle the matter then.

In other words, the justices punted. They explicitly stated they were expressing no view on whether the accommodation was a substantial burden of the nonprofits’ religious exercise, or whether the government’s goal of providing women with access to contraceptive healthcare is a compelling interest.

Millions of women employees of religious nonprofits are left without certainty that they can obtain the contraception that they are entitled to under the law. Also left hanging and unsure of their rights are the employers claiming the accommodation violates their religious liberty. Nor has any guidance been provided for lower courts that may hear cases in other contexts involving the denial of legal rights to targeted populations under the guise of religious liberty. With an understaffed Court, everyone loses.

Limiting Congress’s Power to Hold Wrongdoers Accountable in Court for Violating People’s Rights

Spokeo v. Robins: Although it did not receive as much media coverage as some of the other cases this term, Spokeo was an extremely important case. The Supreme Court accepted it to address the question of whether someone has standing to sue in federal court if their “only” injury is that a right created by Congress was violated. At issue is whether such cases meet the constitutional requirement that federal courts have jurisdiction only where there is an actual case or controversy before them. A ruling in favor of the corporation that had allegedly violated the law would have severely weakened the ability of Congress and the people of our country to hold corporations accountable when they violate a federal law.

But when the understaffed Court issued its opinion, it provided no answer to this extremely important question. Instead, in a 6-2 opinion, the justices expressed no position on whether the plaintiff had standing to sue (the key issue in the case), called the Ninth Circuit’s standing analysis “incomplete,” vacated the lower court’s opinion, and directed it to revisit the issue.

Although we don’t know for sure, this “deciding not to decide” may very well have been done as a compromise to avoid a 4-4 tie. In any event, the issue is likely to come back to the Court after the Ninth Circuit rules again.

 

Cases Not Affected by the Vacancy

Of course, not all high-profile cases were affected by the vacancy. Some were decided before Justice Scalia died. Some were decided after he died, but with a majority opinion nonetheless.

Reproductive Freedom and Choice

Whole Woman’s Heath v. Hellerstedt: Decided on the last day of the term, this 5-3 opinion authored by Justice Breyer struck down Texas’s notorious targeted regulation of abortion providers (TRAP) law. Such laws, pushed by anti-choice zealots across the country, are presented as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion. Such laws are a key component of the far right’s long-term project of gradually chipping away at the constitutional right to an abortion. However, what they achieved instead was a ringing affirmation of that right.

The majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) reversed an opinion of the Fifth Circuit Court of Appeals that had upheld requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles. The Court ruled that these are medically unnecessary regulations with the effect of putting an undue burden on women’s ability to exercise their constitutional rights, a key part of the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey (which Kennedy was part of).

The Court criticized the Fifth Circuit for not providing the level of scrutiny appropriate for a constitutional right, but instead treating its review of the law with the same deference that ordinary legislation receives. The justices directed lower courts to look critically at whether a law affecting abortion actually accomplishes the goals the state is using to justify it. In this case, the Court went into great detail on how the Texas law burdens women’s access to abortion, and it demonstrated how the law was, in fact, not necessary to protect women’s health but makes it much harder to get access to abortion services. As such, the burden was undue, and thus unconstitutional.

Whole Woman’s Health strongly reaffirms Casey and will make it far more difficult for states to defend their TRAP laws from new court challenges, although much will depend on lower court factual findings. With women’s constitutional right to an abortion constantly under attack, this ruling serves as a powerful reminder of the importance of who will be nominating and confirming those who will serve on the Supreme Court and other federal courts.

Voting and Democracy – One Person, One Vote

Evenwel v. Abbott: The Court ruled 8-0 that when states fulfill their constitutional obligations to equalize populations within state legislative districts, they are permitted to do what they’ve always done: count the entire population, the same as what the Constitution requires for equalizing congressional districts. That provides equality of representation. But Sue Evenwel and Edward Pfenninger, Texans whose districts include relatively few non-citizens, had argued that states must count only eligible voters; otherwise, their vote counts less than the vote of someone who lives in a district with a large number of non-citizens or others who cannot vote. Richard Hasen had called this case “an attempted [partisan] power grab in Texas and other jurisdictions with large Latino populations.” Texas defended the “total population” approach but asked the Court to say that, in the future, states could also use just voting age population.

The Court didn’t take the bait. Writing for a six-person majority, Justice Ginsburg gave a powerful defense of equality of representation, tying it to the will of the framers of both the original Constitution and the Fourteenth Amendment. (Justices Thomas and Alito agreed with the result but not the reasoning.) In other words, every person deserves representation. Importantly, the Court refused to address the constitutionality of counting only eligible voters, saying that was a question they need not address in this case. Had the Court legitimized counting only eligible voters even without saying that states must take that approach, it would have been a dangerous signal to conservative state legislatures to break with precedent and model their districts that way in the future.

Voting and Democracy – Partisan Gerrymandering and Further Weakening Voting Rights

Harris v. Arizona Independent Redistricting Commission: This could have been a major case where the Court defined illegitimate partisan gerrymandering and ruled that such gerrymandering causing any population differences among districts invalidates redistricting decisions that were also done for legitimate reasons (like complying with the Section 5 preclearance requirements that existed at the time). Another question raised in this case was whether trying to meet Section 5 preclearance in redistricting that took place before Shelby County was legitimate at all, since the formula subjecting Arizona to that requirement was later found unconstitutional. But in a unanimous 8-0 opinion, the Court concluded there was no reason to address the partisan gerrymandering issue. Writing for the Court, Justice Breyer concluded that seeking to comply with Section 5 preclearance, rather than partisanship, clearly explained the redistricting decisions. The Court also ruled that Shelby County didn’t retroactively make the Arizona legislature’s motives illegitimate. So what had a potential to be a major case turned out not to be: the Court directly answered the question before it and did not effect a significant change in redistricting law.

Cutting Off Individual and Class Action Lawsuits

Campbell-Ewald Company v. Gomez: Class action suits are often the only way to effectively obtain redress from large companies for illegal conduct and provide deterrence for others. Over the years, the Roberts-Alito Court has been chipping away at the ability of victims to use class actions to hold corporations accountable. But this case threatened to make it nearly impossible. The company in this case was asking the Court to rule that a defendant can terminate a class-action suit against it simply by making a settlement offer to the individual representing the class, even if it’s not accepted, before that individual files a motion for class certification with the court. The argument was that offering the settlement would mean there was no longer a “case or controversy,” which Article III of the Constitution requires for a federal court to have jurisdiction in a case.

In a somewhat surprising win for ordinary people, the Court rejected the argument by a vote of 6-3. Writing for a 5-member majority (the moderates plus Justice Kennedy), Justice Ginsburg concluded that if the plaintiff rejects the offered settlement, the case does not automatically terminate. She noted that ruling otherwise would improperly let corporations spend minimal amounts to pay off individual plaintiffs and forestall all sorts of class actions. (Justice Thomas provided the sixth vote in a concurrence that used a very different legal approach to reach the same result.)

However, the Court announced a potential loophole for corporations: The Court noted that it was not deciding whether a corporation could prevent a class action suit by placing the full amount of the plaintiff’s individual claim in an account payable to the plaintiff (rather than just making an offer), and then having the court enter a judgment in favor of the plaintiff in that amount and dismissing the case before the plaintiff has a chance to ask the judge to certify the proposed class. We can be confident that such a case will reach the Court soon, making it critically important who fills Justice Scalia’s vacancy, as well as others that may open in the near future.

Sabotaging the Next Term

When Justice Scalia passed away in February, Senate Majority Leader Mitch McConnell immediately announced that the Senate would not consider any nominee put forth by President Obama, no matter who it might be. Nevertheless, true to his constitutional responsibilities, the president nominated Chief Judge Merrick Garland of the D.C. Circuit to fill the vacancy on the Supreme Court. More than 100 days later – long past the point when other nominees would have had their confirmation votes – Judge Garland is still being denied a hearing, and Senate Republicans are holding the seat open in the hopes that a President Donald Trump will fill it.

Under the conservatives’ plan, the Senate will not consider anyone until the next president makes the nomination … a president who will take office when the Court’s 2016-2017 Term is already half over. A final confirmation vote would be many weeks later, at the very least. Faced with the prospect of having most or even all of next term hobbled by a needlessly ongoing vacancy, the justices are responding, clearly aware of the damage to the Court’s ability to properly function. This shows up in the number and types of cases the justices are hearing next year. The Court continues to lag behind previous years at this same point in the number of cases that they have accepted for next term, which is now fewer than 30. In addition, most of the cases are not blockbusters; one important constitutional religious liberty case has been accepted, but that was before Justice Scalia passed away.

This term, the Court was unable to address a number of very important legal questions affecting millions of people across America. Next term, it may not even try, if the obstruction in the Senate continues.

 

The Supreme Court Conflict Shines a Light
on the Massive Obstruction of Lower Court Nominees

The very high-profile obstruction of Supreme Court nominee Merrick Garland is just the most visible and most extreme version of a pattern of obstruction that Senate Republicans have been doing to sabotage the judicial confirmation process throughout the entire federal judiciary.

On the circuit and district courts, the Republican-controlled Senate is virtually abandoning its constitutional duty to consider President Obama’s judicial nominees. After confirming only 11 circuit and district court judges last year (the lowest since 1960, the end of the Eisenhower era), the Senate has confirmed only an additional 8 so far this year, for a total of 19 circuit and district judges confirmed during this Congress. Indeed, the 114th Congress is on pace to see the fewest confirmation votes of any two-year Congress in over 50 years.

But it’s not because there aren’t any vacancies. In fact, current circuit and district vacancies have skyrocketed since the current Congress began in January, from 40 then to 80 now. The number of those vacancies that have been officially designated judicial emergencies has jumped from 12 at the beginning of 2015 to 29 today.

Nor is it because there is a lack of nominees. Far from it. As of today, there are a total of 50 nominees awaiting consideration by the Senate, Of these 32 are still in the Senate Judiciary Committee, only 7 of whom have had hearings. And another 18 nominees have cleared the Judiciary Committee and now await votes on the Senate floor. Five of these have been waiting since last year for votes.

Just as it matters immensely who serves on the Supreme Court – and who nominates those justices – it matters who serves on our nation’s circuit and district courts as well. All these positions have an enormous impact on the lives of people across the country, which is exactly why the Senate leadership, with the full support of far right activists, have put so much effort into derailing indisputably qualified nominees to the federal judiciary at all levels.

Conclusion

Since Justice Scalia’s passing, people across America have seen the damage caused by an extended vacancy on a Court that has been left evenly divided ideologically. Among those who have witnessed the damage are all 100 members of the United States Senate, whose Republican leaders are nevertheless refusing to even hold a hearing for an unquestionably qualified nominee who should have already had a confirmation vote by now. Had the Senate acted in a timely manner, and if they had voted to confirm Judge Merrick, the Court would be fully staffed by now, perhaps having avoided some of its 4-4 rulings and confident in its ability to take new cases and begin the next term at full strength.

Instead, unless the Republican Senate leadership abandons its unprecedented obstruction, they will be deliberately preventing the Supreme Court from functioning effectively for most if not all of next term as well. This deliberate sabotage of the American judicial system from the Supreme Court on down harms everyone.