On The Docket, In Limbo: Antonin Scalia's Death Casts Uncertainty On Key Supreme Court Cases The president says he intends to fill Antonin Scalia's vacancy, but it's unlikely the Senate will make it easy. Cases on immigration, religious liberty and abortion access may hang in the balance.
NPR logo

On The Docket, In Limbo: Scalia's Death Casts Uncertainty On Key Cases

  • Download
  • <iframe src="https://www.npr.org/player/embed/466752491/466783910" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
On The Docket, In Limbo: Scalia's Death Casts Uncertainty On Key Cases


On The Docket, In Limbo: Scalia's Death Casts Uncertainty On Key Cases

  • Download
  • <iframe src="https://www.npr.org/player/embed/466752491/466783910" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


Supreme Court justices remembered their colleague, the late Antonin Scalia, over the weekend. To Clarence Thomas, who often sided with Scalia on the court, Scalia was a man of strong faith, a towering intellect, a legal giant and a dear, dear friend. To Ruth Bader Ginsburg, who often opposed Scalia, he was, quote, "a jurist of captivating brilliance," and simply her "best buddy."


Other mourners have created a small memorial at the foot of the Supreme Court steps. Samantha Montgomery, a political researcher here in Washington, left a bouquet yesterday of tiny white flowers known as Baby's Breath.

SAMANTHA MONTGOMERY: I just think he's done so much for conservatism. And I remember from back in college just reading his dissents, and their - his colorful - colorful analysis of things was just - just amazing. And I appreciated his bluntness.

GREENE: He was known for being blunt in many of those dissents. Now, Antonin Scalia's death does leave a void in so many ways. Most immediately, without Scalia, the court's famous five-four split becomes a four-four tie.

KELLY: All right, and to talk about that we are joined now by NPR senior editor and correspondent, Ron Elving. Hey, Ron.

RON ELVING, BYLINE: Good morning, Mary Louise.

KELLY: When you think about Scalia's impact, what comes to mind?

ELVING: One has to say he is part of the legacy of Ronald Reagan, who appointed him to the court. And that is really the figure that one would compare him to. What Ronald Reagan meant to American politics and American life, Antonin Scalia meant to American jurisprudence.

GREENE: Ron, if you're describing someone with an influence as big as Ronald Reagan, I mean, both to the conservative movement and to the country, I mean, this really is going to leave a void. And, I mean, people just most urgently now are talking about what happens on the court with all of these cases on the docket. I mean, what's at stake without Scalia now?

ELVING: Right now there's potentially lots riding on the current term of the court. The current court docket has cases that test the abortion access restrictions in Texas, the right of public employee unions to collect mandatory dues. We have a couple of cases of conflicting rights involving religious liberty, and of course the legal enforceability of President Obama's executive actions allowing certain immigrants to remain here even though they're illegal in the country right now.

GREENE: Ron, some of the cases you were bringing up though, I mean, those are cases that are currently before the court. There haven't been a vote yet. So you're saying those could really be affected, and we could get a different decision without Scalia?

ELVING: That's right. And in such cases of course, not having Scalia on the court would change the outcome if he was going to be voting and casting the deciding vote in the majority. Now, if he was going to be on the losing side, it shouldn't make a difference. And if the court was going to be less closely divided, it shouldn't make a difference.

KELLY: So walk us through what happens, then, in a case where Scalia would have been the fifth vote for a majority, and now it's going to be four-four.

ELVING: Yes, that's the big focus. If it's four to four, it's a tie. And that means that the ruling by the last court that handled the case will stand. Whatever that appeals court decided becomes the last word. The big difference here is that it will apply only in the states that are part of the jurisdiction of that appellate court. It doesn't have the same nationwide precedent it would have if the Supreme Court had made a decision.

GREENE: So let's - Ron, let's talk about a few cases. I mean, one that comes to mind is this decision of the court announced last week putting a stay on the president's new clean-air program, that would have limited greenhouse gases. That decision was announced before Scalia's death. I'm sure there'll be a lot to implement it, but that decision stays.

ELVING: Exactly, you said the crucial words - because they got this out there, because it was announced last week, that means Scalia's vote is valid. And it's publicly decided. Therefore, that stay is going to be in place, and there's going to have to be a ruling made at the appellate court level before the Supreme Court would weigh in on that again.

KELLY: Other big question marks out there, I'm thinking, for example, of the California teachers' cases.

ELVING: Yes, this goes to the heart of public employee unions' power and maybe even viability. The question is whether employees can opt out of paying union dues while they still enjoy the benefits of the unions' collective bargaining, say for wages and working conditions. Scalia's vote might have meant a sweeping decision here against the unions. So it's potentially good news for them that this would be a four-four tie.

GREENE: And Ron, I think about the issue of immigration that you brought up. We're talking about millions of people in the country illegally and their fate. Some decisions out there - right - that might go very differently now.

ELVING: Yes. Now, this is part of the executive action the president took in November of 2014. A federal district judge in Texas said that move violated federal law, and a three-judge panel of one of the circuit courts upheld that ruling. So if this one winds up in a four-four tie, that would put the president's efforts on ice for at least the foreseeable future with regard to these people.

KELLY: What about, Ron, the president's effort on the Affordable Care Act? What impact could Scalia's death have there?

ELVING: It wouldn't be a Supreme Court docket without at least on challenge to Obamacare, would it (laughter)?

KELLY: (Laughter) Right. Some things don't change.

ELVING: And Obamacare says employers have to offer health care plans that include contraceptive coverage unless the employer is, say, a church or the equivalent. And then a lot of other religious-affiliated nonprofits said they wanted that exemption too. So the government worked out a way for them to comply with the law without providing the contraceptive coverage themselves. But the plaintiff in this particular case objects to that work around as well. So if this one winds up in a four-four tie and goes back to the circuit courts, 7 out of 8 circuit courts that have ruled on this case ruled for the government and against the plaintiffs. So that's how that would resolve if the Supreme Court can't resolve it.

GREENE: And Ron, before we let you go, just look at the political landscape for us. This is an election year. I mean, could Scalia's death really fundamentally change the debate in the presidential campaign?

ELVING: The Supreme Court is always an issue in a presidential campaign, but it's usually one in the background. Now it's going to be in the foreground, and it's going to have a face. When President Obama nominates someone later this month, that person is going to become the symbolic focus of this whole struggle.

GREENE: All right, Ron, thanks as always.

ELVING: Thank you both.

KELLY: That's NPR senior editor and correspondent Ron Elving.

Copyright © 2016 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.