SCOTUS Post-Scalia: Mixed Decisions End of Term, No Noticeable Swing Yet

These opinions aren't much ideologically different than rulings in recent years, there was no clear shift to the left, but it is likely that eventually, a key decision will arise where Scalia would have been the deciding vote.

By Rachel Alexander Published on June 29, 2016

The U.S. Supreme Court issued its last seven decisions remaining this term last Thursday and Monday. With the passing away of conservative justice Antonin Scalia, the court’s decisions were expected to shift to the left, but the results were mixed as some of the justices took surprising positions. Scalia’s vote likely would not have affected the outcome except possibly in one relatively minor case.

1. Immigration

On immigration, the Court split 4-4 in U.S. v. Texas, meaning an injunction against the Obama administration’s attempt to go around Congress in providing legal status to millions of illegal immigrants was upheld for the states covered by the Fifth Circuit. Obama’s “deferred action” program would have stopped the deportation of many illegal immigrants, granting them work permits and taxpayer benefits. Texas had led a group of 26 states with the lawsuit, complaining in particular about the increased cost to the states for driver’s licenses.

The decision has less to do with ideology and more to do with constitutional procedure. Immigrant advocates said the Court should have allowed the administration flexibility in how it interprets congressional statutes, while conservatives said the decision empowered proper separation of powers.

President Obama responded that the administration had simply focused “our enforcement resources — which are necessarily limited — on the highest priorities:  convicted criminals, recent border crossers, and threats to our national security.” Texas Governor Greg Abbott denounced his response, as did Rep. Louie Gohmert, arguing that the case was not about immigration, but an unconstitutional Executive Order. “The president is not permitted to write laws — only Congress is. This is another major victory in our fight to restore the separation of powers,” said House Speaker Paul Ryan (R-WI).

Some, including House Judiciary Committee Chairman Bob Goodlatte (R-VA) , noted that the decision should encourage opposition to liberal judge Merrick Garland’s nomination for the court. If he had been appointed, said Judicial Crisis Network Chief Counsel Carrie Severino, “this case would have eviscerated the Constitution’s checks and balances.” 

2. Affirmative Action

In Fischer v. University of Texas, liberal Justice Elena Kagan recused herself from voting, but the decision still came down favorable to the left, since Kennedy voted with the liberal wing of the court. The 4-3 decision allows the University of Texas to consider race in student admissions in order to achieve “diversity,” opening the door for colleges all across the country to use affirmative action policies. It requires the university to regularly evaluate its programs for relevance.

Praising the decision, Obama said, “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.” Severino disagreed, saying, “The Equal Protection Clause simply doesn’t allow discrimination based on race, and schools shouldn’t be given a pass.”

If Scalia had still been on the court, his expected vote against might have slightly affected the outcome. With Kagan recusing herself (ostensibly because she once served as Solicitor General), the court would have split 4-4, and so the Fifth Circuit’s ruling upholding affirmative action would have been upheld — but only within the Fifth Circuit. Of course, if Kagan had decided not to recuse herself, the outcome wouldn’t have changed.

3. and 4. Search and seizure

In a third decision, Utah v. Strieff, liberal Justice Stephen Breyer surprisingly joined the conservative wing of the court as well as Justice Kennedy in a 5-3 decision letting law enforcement search and seize evidence from someone pulled over for a traffic violation if they have an outstanding warrant. It is a significant decision, since mere unpaid parking tickets can now result in a warrant for someone’s arrest.

In Birchfield v. North Dakota, the high court held 5-3 that a DUI blood test requires a search warrant, but a breathalyzer test does not. Justice Alito reasoned in his majority opinion that a blood test is more invasive of a person’s body than a breath test. The court was silent on whether urine tests would require a search warrant or not.

It was an unusual split. Breyer and Kagan sided with conservative justice Samuel Alito and Chief Justice John Roberts as well as swing vote Kennedy for the majority. Justice Clarence Thomas dissented with the remaining two liberals on the court, Sotomayor and Ruth Bader Ginsburg. They disagreed for different reasons: The liberal two said they would have required search warrants for both breath tests and blood tests, and Thomas said he would not have required search warrants for either.

5. Abortion

In a 5-3 decision, the court struck down recent Texas legislation regulating abortion providers, which had cut the number of clinics in the state in half. Since Kennedy voted with the liberal wing of the court in Whole Women’s Health v. Hellerstedt, Scalia’s absence did not make a difference. Breyer, writing for the majority, declared “there was no significant health-related problem that the new law helped to cure.” (From Stream coverage, see this news story, the description of pro-life leaders’ responses, and this story on Trump’s non-response.)

 6. Public Corruption

The court unanimously struck down the conviction of the former governor of Virginia, Bob McDonnell, for allegedly taking gifts as bribes from a wealthy businessman. Writing for the court, Roberts said the prosecutors had taken an overly broad interpretation of the bribery law and that if the court had let the conviction stand, it would have made it extremely difficult for elected officials to perform their jobs. McDonnell v. United States sets a powerful precedent giving public officials more protection from malicious prosecutions.

7. Second Amendment

In Voisine v. United States, the court rejected 6-2 an appeal from two men over their convictions for owning firearms after being convicted of domestic violence crimes. Kagan wrote in her majority opinion that even “reckless” acts of domestic violence, not just “intentional,” can trigger the Lautenberg Amendment, which forbids anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” from possessing “any firearm or ammunition.”

Thomas broke his silence for the first time in 10 years during oral argument, asking nine questions. He wrote a scathing dissent — part of which was joined by Sotomayor — criticizing the majority for “sweeping into patently unconstitutional territory,” perhaps evidence he may be filling the shoes of Scalia. “We treat no other constitutional right so cavalierly,” Thomas blasted. “At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.” The absence of Scalia did not affect the decision.

What Do These Decisions Mean?

These opinions aren’t ideologically much different than rulings in recent years, there was no clear shift to the left, but it likely that eventually, a key decision will arise where Scalia would have been the deciding vote. What is significant about this round of decisions is that a couple of the liberal justices sided with the conservative justices on criminal justice issues, especially Breyer, meaning the left may be moderating some of its positions in this area. Depending on whether the next Supreme Court appointment is conservative or liberal, the court will either maintain this balance in decisions or significantly shift to the left.

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