For the last three decades, Justice Antonin Scalia served as a staunch and reliable conservative voice on the U.S. Supreme Court. While his rulings could be controversial at times, he remained widely liked and respected, even among the more liberal members of the Court. His unexpected death over the weekend leaves many in mourning. It also leaves many wondering: what happens next?
The death of a Supreme Court justice mid-term is disruptive enough. A death during an election year—particularly one in which the country has arguably never been so divided—is downright polarizing. Within hours of the announcement of Scalia’s death, officials on both sides of the aisle fired their opening salvos. Senate Majority Leader Mitch McConnell (R-KY) said, “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” McConnell’s views are in keeping with the so-called “Thurmond Rule,” an informal policy originally advocated by former Sen. Strom Thurmond that lifetime judicial appointments should not be confirmed during an election year. Thurmond had vociferously opposed President Lyndon Johnson’s nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court in 1968.
Senate Minority Leader Harry Reid (D-NV) countered:
The President can and should send the Senate a nominee right away. With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.
As it stands, the current Senate comprises 54 Republicans, 44 Democrats, and 2 Independents who caucus with the Democrats. Assuming President Obama will soon nominate Justice Scalia’s replacement, he will need at least 14 Republicans to agree to his choice to avoid a filibuster. Garnering these votes will be an uphill battle for a number of reasons.
First and foremost, Justice Scalia was a steadfast conservative and strict constitutional constructionist. Republican members will almost certainly want a like-minded justice to replace him on the nine-member Court. Democrats, on the other hand, will push for a justice with more left-leaning views, particularly as this likely will be President Obama’s last chance to nominate a Supreme Court member, and the outcome of the November elections is far from certain. Meanwhile, as a result of last year’s Noel Canning decision, the chance the Senate would recess long enough for President Obama to seat a new Justice via recess appointment is slim.
So what happens next? The President will certainly nominate a new justice, and unless that nominee is well-regarded by the majority of the Senate, he or she is not expected to get a vote on the Senate floor, let alone a confirmation hearing. A more optimistic view is that Justice Scalia’s death could present an opportunity for true statesmanship—i.e., the President could lower Democrats’ expectations and choose a more centrist candidate, and the Republicans in the Senate could agree to a candidate who might not carry on Scalia’s conservative legacy 100%. Given the bitter partisanship of this election year, however, hope does not spring eternal.
The most likely scenario is the Supreme Court’s vacancy will be used as a new arrow in both parties’ political quivers. The possibility that the next president will select the new Supreme Court justice will galvanize both parties as they head to the polls in November.
While the political fallout of Scalia’s death will be felt for the remainder of 2016, there are more immediate implications for the parties (and the employer community) involved in the Court’s pending cases. Several labor and employment cases that were heard in the Court’s November-January sittings have yet to be formally decided. What happens to those decisions?
The remaining members of the Court include the more right-leaning members (Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel Anthony Alito, Jr.) and the more liberal wing of the Court (Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan). Any opinion in which Scalia had cast the 5-4 swing vote, but was not formally released as of his death, is now void and must be reconsidered. Further, any future 4-4 deadlock would simply let stand the lower court’s decision.
One beneficiary of this outcome may be public sector unions. On January 11, 2016, oral arguments were heard in Friedrichs v. California Teachers Association. At issue in Friedrichs was whether a former Supreme Court decision, Abood v. Detroit Board of Education, should be overturned. In Abood, the Court held that non-union public employees could be compelled to pay for union expenses related to collective bargaining. In addition to whether such “agency shop” arrangements should be invalidated, Friedrichs would decide whether the First Amendment requires that public employees affirmatively object or affirmatively consent to subsidizing nonchargeable speech by public sector unions. While it can be difficult to predict how justices will vote in any one case, all signs pointed to a 5-4 decision against the union. Such a decision was expected to deliver a strong blow to public sector unions, which rely heavily on agency fees. Unless one of the more liberal justices has a change of heart, the Ninth Circuit’s decision in this case will stand.
Another eagerly awaited decision is Tyson Foods v. Bouaphakeo. The Court was asked to examine whether a class action can be certified under Rule 23(b)(3) or a collection action under the Fair Labor Standards Act, when there are differences among individual class members yet liability and damages would be assessed using a statistical model that assumes uniformity among all class members. Oral argument was heard on November 10, but no opinion has been released.
Other employment-related cases in which oral argument was heard but no opinion issued include:
• Green v. Brennan. The issue in this case is whether the filing period for a constructive discharge claim under federal employment discrimination law begins to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held.
• Gobeille v. Liberty Mutual Insurance Company. At issue in this case is whether the lower court “erred in holding that the Employee Retirement Income Security Act of 1974 (ERISA) preempts Vermont’s health care database law as applied to the third-party administrator for a self-funded ERISA plan.”
• Spokeo v. Robins. The issue in this case involves standing—whether “Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”
Cases that have not yet been heard or scheduled for oral argument include:
CRST Van Expedited v. EEOC, a notable follow-up case to last year’s Mach Mining decision, in which the Court held that the EEOC’s conciliation efforts prior to filing suit are subject to judicial review, albeit narrow. At issue in CRST is whether the dismissal of a Title VII case based on the EEOC’s complete failure to meet its conciliation obligations can form the basis of an attorney’s fee award to the employer. The employer in this case had been awarded more than $4 million in fees, which was subsequently reversed by the Eighth Circuit.
In March, the Court is scheduled to hear a series of challenges to the Affordable Care Act’s contraceptive mandate on Religious Freedom Restoration Act grounds. Justice Scalia was expected to rule against the mandate.
Finally, a case that had not yet been calendared, MHN Government Services v. Zaborowski, asks the Court to decide whether California’s arbitration-only severability rule is preempted by the Federal Arbitration Act.
The cases that have not yet been argued before the Court will go forward with the eight remaining justices. Whether any cases in which the Court is expected to deadlock could always be held over for rehearing, but it is unclear whether that will happen in any of the above matters.
What is certain is the fight for the next Supreme Court justice will be long and protracted.
• Michael J. Lotito, Co-Chair, Workplace Policy Institute| San Francisco, CA | mlotito[at]littler.com | 415 677-3135
• Ilyse W. Schuman, Co-Chair, Workplace Policy Institute| Washington, District Of Columbia | ischuman[at]littler.com | 202 423-2223
© 2016 Courtesy of Littler Mendelson P.C. – a member of the EACCNY