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Supreme Court without Justice Scalia: Will it lack a tip of the scales?
February 23rd, 2016
By Carol Zimmermann


WASHINGTON – As the nation looks ahead to upcoming Supreme Court decisions without Justice Antonin Scalia’s input, it may see a lot of tie scores.


That’s because the Feb. 13 death of one of six Catholic members of the court – who was often described as its most conservative voice and known for his strict interpretation of the Constitution’s intent – may lead to many 4-4 decisions.


Justice Anthony Kennedy has been described as a swing vote, a term he is said to despise, but depending on his vote in upcoming cases before a successor to Scalia steps in, there will either be split decisions or 5-3 votes with the more liberal justices forming the majority.


When the court issues split decisions, the lower court rulings stand and “it will be as if the court did not even take the case,” said Meg Penrose, a law professor at Texas A&M University’s School of Law.


“To me, that’s what’s troubling about a 4-4 ruling,” she said, noting that it goes against the court’s decision in the first place to take the case.


“This puts everything of critical importance in a holding pattern,” she added, noting that the court is not operating at its “full strength” when it is has a crucial role to “help us as nation especially when dealing with federal law.”


Penrose told Catholic News Service that equal votes are “all fine and good in a balance, but we have real issues facing the court” that call for clear direction. In particular, she cited the upcoming Little Sisters of the Poor case, which is just one of the oral arguments on the docket this spring the Catholic Church has a vested interested in. The others involve abortion and immigration.


The abortion case before the court March 7, Whole Woman’s Health v. Cole, involves abortion clinics in Texas challenging a state law upheld in lower courts requiring them to comply to standards of ambulatory surgical centers and requiring abortion doctors to have admitting privileges at a hospital near an abortion clinic.


Scalia was expected to provide a fifth vote in this case to uphold the requirements. A 4-4 vote will leave in place the 5th U.S. Circuit Court of Appeals ruling upholding the provisions but it will not set a national precedent.


On March 23, the court will hear oral arguments in the religious liberty case Zubik v. Burwell, which involves the Little Sisters of the Poor and other religious employers contesting the contraceptive mandate of the Affordable Care Act.


From February 25, 2016 issue of Catholic San Francisco.






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