Five months after the passing of Justice Antonio Scalia, his seat on the Supreme Court remains unfilled. Merrick Garland—President Obama’s chosen nominee—has failed to fulfill official Supreme Court appointment requirements, as procedure calls not only for his nomination by the president, but also his confirmation in the Senate. The Senate has chosen not to hold a confirmation hearing for Garland, which, though controversial, is fully constitutional. According to Article I, Section 5 of the Constitution, the Senate is accorded the right to “determine the Rules of its Proceedings,” which entitles it to choose the means of granting or denying consent to Supreme Court appointments.

With Garland’s confirmation process indefinitely in limbo, the Supreme Court continues to hear cases as usual. There is one difference: The likelihood of a 4-4 voting deadlock has increased since an even number of justices (eight) now sit on the Supreme Court. Most cases have escaped the deadlock of an equally divided court, though often by a narrow, one-vote margin. Even when the Supreme Court has a full bench, however, it is not uncommon to rely on an eight-justice voting constituency. After all, justices may recuse themselves for a host of reasons, including if their “impartiality might reasonably be questioned,” according to United States Code. In 4-4 cases, the absence of Scalia or the opinion of a ninth justice to succeed him, such as Garland, is felt strongly.

When the Supreme Court justices do split evenly on an issue—in the event of justice recusal, or an even-bodied Supreme Court bench as seen today—the lower court ruling is upheld and no national precedent is set. From a legal perspective, it is as if the case never went to the Supreme Court in the first place.

So which cases have actually ended in a tie? In the past five months, the legal statuses of immigration and public union fee collection have been influenced by the absence of Scalia and his successor (perhaps Garland). In fact, 4-4 ties have impeded progress either to the left or to the right.

Last month, in United States v. Texas, civil rights and labor groups sought to reverse the block on President Obama’s immigration program. The program in question was designed to expand eligibility standards for relief and protection from deportation sought by undocumented immigrants. The court split 4-4. The evenly divided court therefore affirmed the lower court ruling, which blocked Obama’s program. Had Merrick Garland—Obama’s nominee—been confirmed by the Senate to sit on the Supreme Court, he would have likely voted in favor of President Obama’s program. Had Scalia still sat on the Supreme Court, he most likely would have voted against Obama’s program. In his searing dissent from 2012’s Arizona v. United States majority, Scalia defended the importance of state sovereignty and alluded to negative effects of immigration experienced by Arizona citizens.

In Friedrichs v. California Teachers Association, the Supreme Court justices split 4-4 once again as they weighed the legal merits and constitutionality of requiring public employees to pay fees to public unions that they have expressly refused to join. The case was brought to the court by non-union workers—specifically elementary school teachers who represent a larger group of public employees facing annual compulsory fees. The compulsory fees—often called “fair share service fees,” or “agency fees”—cover the public unions’ collective bargaining activity costs and are equal to the dues required of actual union members. The plaintiff hoped the 1977 Abood v. Detroit Board of Education Supreme Court decision, which serves as the legal basis for collecting fees from non-union workers in the twenty-five states without right-to-work laws, would be overturned. The Supreme Court’s 4-4 tie affirmed the lower court’s ruling that public employees will continue to face forcible collection of fees from public unions despite their lack of membership.  Had Scalia been present, he likely would have joined the conservative bloc and voted to abolish the collection of fees for non-union workers.

Given the politicized climate of the Supreme Court today, the frequency of 4-4 gridlocks and rulings based on one-vote margin majorities is no surprise. It does, however, mean that when Justice Scalia’s successor—be it Merrick Garland or another presidential nominee—is confirmed by the Senate, she or he is bound to shift the balance of the Supreme Court. The question remains: which way?


Leave a comment

Your email address will not be published. Required fields are marked *