Washington – With the death of conservative Justice Antonin Scalia, a narrowly divided Supreme Court now enters tricky terrain. Tie votes and tougher calculations will become the order of the day.
Scalia appeared ready this term to help a slender conservative majority upend such things as California teacher union fees and a University of Texas affirmative action scheme.
Now, the court that decided 20 percent of its cases last term on 5-4 votes is reduced to an eight-member body that is evenly split between Republican and Democratic appointees.
A litany of 4-4 ties could result for some of the nation’s most pressing legal controversies.
In January, for example, Scalia hammered at California Solicitor General Edward DuMont over the issue of mandatory fees charged by the California Teachers Association. Conservatives challenge the fees as an infringement on nonmembers’ First Amendment rights, and Scalia made it clear that he was prepared to sustain the challenge.
The association won at a lower level. That was fine with conservative challengers, whose intention all along was to reach the Supreme Court and get an unwanted 1977 precedent-setting decision overturned.
Now, though, a 4-4 tie is likely, in which case the lower court’s decision is upheld.
In another consequence, the challenge to affirmative action in Fisher v. University of Texas, which the court heard in December, could now come to a different conclusion, as liberal Justice Elena Kagan had already recused herself. Had he lived, Scalia would have voted against the university’s affirmative action plan.