Scalia absence keenly felt in closely divided cases

AP News
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Posted: Jun 23, 2016 4:41 PM
Scalia absence keenly felt in closely divided cases

WASHINGTON (AP) — The impact of Justice Antonin Scalia's death played out anew at the Supreme Court Thursday in two tie votes and a 4-3 decision in favor of affirmative action in which he almost certainly would have sided with the dissenters.

Justice Anthony Kennedy and three liberal justices would have lacked the votes to issue a surprising affirmation of the use of race as a factor in college admissions if Scalia had been alive.

At worst, for opponents of affirmative action, the case would have ended in a tie and the same outcome, a victory for the University of Texas, but with no opinion from the Supreme Court.

Scalia took part in the affirmative action arguments in December. It is impossible to know how the justices initially voted after the arguments and how Scalia's death might have altered the outcome. The court held onto the case for more than six months, which sometimes is a hint that something changed between the justices' initial vote and the issuance of the decision.

Justice Elena Kagan also didn't take part in the affirmative action case because she worked on it while serving in the Justice Department.

The high court has been operating with eight justices instead of its full complement of nine since Scalia died in February. President Barack Obama has nominated Judge Merrick Garland to take Scalia's place, but Senate Republicans have refused to hold a hearing or a vote.

Garland wouldn't have been available to take part in this term's cases even if the Senate had acted quickly on his nomination. But the other justices might have ordered new arguments in some cases in which they split 4 to 4 if they knew Garland would be on the bench by the time the next term begins in October.

Instead, they announced ties Thursday in a dispute over Obama's plan to protect millions of immigrants who are in the United States illegally and another case involving the authority of tribal courts.

A full nine-justice court agreed to hear the immigration case in January, but by the time of the arguments in late April, Scalia had died. That left eight justices to decide the case, and the court presumably split along liberal-conservative lines, although it did not say how each justice voted.

Scalia probably would have been with the conservatives, meaning someone among them would have written an opinion spelling out the flaws in the Obama plan. Instead, a one-sentence opinion upheld the lower court ruling, without establishing a Supreme Court precedent.

Two earlier cases decided after Scalia's death ended in 4-4 ties, including one in which public-sector labor unions staved off a significant defeat over their ability to collect user fees from people who choose not to join the union.

Most cases on the court are decided by lopsided margins. But a new split on the court has emerged since Scalia's death, between those justices who say the court will continue to get its work done and those, like Justice Ruth Bader Ginsburg, who said, "Eight is not a good number."