How Will Scalia’s Death Affect Texas Cases Before The Supreme Court?

Five major cases involving Texas are on the current docket: abortion clinic regulations, affirmative action policies at UT Austin, employer coverage of contraception, a voter redistricting case, and Obama’s executive action on immigration policy (put on hold by a Texas federal judge).

The death of Supreme Court Justice Antonin Scalia has set off a political dispute about whether President Barack Obama or his successor will appoint Scalia's replacement. In the meantime, legal analysts are assessing how individual cases will be affected by the loss of a major conservative vote on the bench.

Scalia's death will have an impact, but most cases will remain unaffected, according to Josh Blackman, a constitutional law professor at the South Texas College of Law.

"The court resolves about 80 cases a year, and maybe less than eight or nine of them are (decided) 5-4," Blackman explained. "It's actually a fairly small percentage of the court's docket where this would be a factor. Most of the court's cases are unanimous or close to it. They're not 5-4."

But the Texas abortion case, Whole Woman's Health v. Hellerstedt, was expected to be decided 5-4, with Justice Anthony Kennedy providing the swing vote. The law in question passed in 2013; it requires Texas abortion clinics to meet the same standards as outpatient surgery centers.

Scalia was expected to vote with the conservatives and uphold the law. But now the vote can break one of two ways.

If Kennedy votes with the liberals, 5-3, the law is struck down.

But if he votes with the conservatives, making a 4-4 tie, then the law remains in place and more abortion clinics in Texas will probably close.

John Seago, the legislative director for Texas Right to Life, said he would be glad if the law were upheld, but disappointed because a 4-4 tie wouldn't go far enough.

That's because a tie by the Supreme Court doesn't set any precedent for what happens in other states, it only affects the Texas situation. Specifically, a tied vote in Whole Woman's Health would not settle an ongoing dispute between abortion opponents and abortion rights supporters over the exact definition of "undue burden."

"Our opponents, the abortion industry, constantly come and say that every pro-life legislation that they take to court is constituting an ‘undue burden,'" Seago said. "So we really needed the Supreme Court to clarify that point, exactly what the definition is."

There's a third option, too. The eight remaining Justices could decide to re-set Whole Woman's Health for next year, after Scalia is replaced.

But Professor Sanford Levinson at the University of Texas Law School thinks it's more likely that Kennedy votes with the liberals, 5-3, and the law is struck down.

"I really don't think he is likely to find Texas's burden reasonable," Levinson said.

"I think what Texas is doing is an in-your-face attempt to do in the notion of reproductive rights," he added. "So I wouldn't be surprised at all if Kennedy votes with the four liberals to strike it down. And if that's the case, there's no particular reason to hold it over."

Professor Blackman says it's not necessary to replace Scalia right away.

"In the 1950s, 60s and 70s, we had significant periods of turnover on the Court, due to death, due to resignation, due to scandal," Blackman said. "For example, during the 1950s, Robert Jackson, one of the great Justices, took a year off from the court to go be a Nazi prosecutor at Nuremburg. The Court was with eight Justices for a year, and they managed."

Another big case out of Texas involves affirmative action at UT-Austin. Because she had previously been involved in the issue, Justice Elena Kagan had already recused herself from that vote. With Scalia's death, only seven Justices will vote on the case, Fisher v. University of Texas at Austin.

"Now we're down to seven," said Blackman. "And a 4-3 decision is not the basis on which the court would want to make a major ruling on affirmative action."

Blackman believes that case could also be re-argued later, or decided on very narrow grounds so its national impact would be minimized.

After Scalia is replaced, the Court could then choose to examine a different lawsuit to clarify what exactly is allowed when universities use affirmative action.

"The Texas case is very gerrymandered, it's this 10 percent program, it's this and that. It's a bad case, it's very Texas-specific," said Blackman. "

"There are other cases brought against Harvard and the University of North Carolina, where effectively Asian students have argued that affirmative action discriminates against them because of race. Those are much more serious."

Blackman says the Justices have until the end of the term, this summer, to decide if they want to reschedule some of these cases for later.

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