Justice Scalia's death could shift momentum away from court conservatism

By Andrew V. Pestano  |  Feb. 15, 2016 at 1:20 PM
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WASHINGTON, Feb. 15 (UPI) -- The death of Supreme Court Justice Antonin Scalia has generated uncertainty regarding the United States' highest court, potentially diminishing conservative ambitions.

Scalia died Saturday due to natural causes that will likely be officially listed as myocardial infarction, or heart attack.

His untimely death could be seen as a major setback for the conservative legal movement.

There are now four Justices who generally vote conservatively and four who generally vote liberally. Tied votes in any particular case means the Supreme Court would have to affirm the ruling by the appeals court from which the case stemmed but without setting a legal precedent. Until a ninth justice is appointed, split votes would simply preserve the status quo instead of providing precedents that can shape future decisions nationwide.

Should the court not wish to hand down split decisions, it may also hold on to a case and have it re-argued in the new term beginning in October, something that has occurred in the past. The move seems unlikely, as a new justice will likely not be appointed by the start of the new term.

Following Scalia's death, Republican leaders -- GOP presidential candidates in particular -- said President Barack Obama should not appoint Scalia's replacement.

"This is a tremendous blow to conservatism," Donald Trump said. "I think it's up to [Senate Majority Leader] Mitch McConnell and everyone else to stop it."

The four seemingly conservative members of the Supreme Court were nominated by Republican presidents, while the four seemingly liberal members were nominated by Democratic presidents.

But that does not mean all cases could be split along partisan lines, as Justice Anthony M. Kennedy often takes the liberal side on issues such as gay rights and the death penalty.

The Supreme Court vacancy means in a year expected to host several, far-reaching conservative victories, those victories will be diminished into simple adherence to lower court decisions -- some of which favor liberal ideals. Kennedy's left-leaning history could result in surprising outright victories for liberals.

On the pending case of whether Obama properly used his executive powers to shield millions of undocumented migrants from deportation, a tied vote could result in a punishing loss for the president -- as an earlier U.S. Court of Appeals ruled against him. A split decision would be seen as a conservative victory but would also prevent the Supreme Court from establishing a stronger precedent over the powers of the executive branch.

On a case over public employee union fees, the court was seemingly prepared to strike down a 40-year-old precedent that stated people who do not belong to a union are required to pay some fees if they receive benefits from the union's collective bargaining. A tied vote would be a result in a liberal victory, as a U.S. Court of Appeals ruled in favor of unions -- citing the earlier precedent.

On a case over contraception in which conservative religious non-profits argued they should be exempt from paying for contraceptives as part of standard health insurance plans under Obamacare, Scalia's death could result in a split decision and a conservative loss -- meaning non-profits will be required to pay the "contraceptive mandate."

For a conservative win, if tied, the Supreme Court could also vote in favor of a Texas ruling that imposed new restrictions on abortion providers, as it was found constitutional in a lower court.

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