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Antonin Scalia

The Scalia effect on current cases

The Trib highlights a few cases pending before the Supreme Court that could be affected by the death of Justice Antonin Scalia.

Antonin Scalia

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

[…]

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

[…]

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.

One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.

RIP, Antonin Scalia

Wow.

Antonin Scalia

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. “My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”

Out of respect for the man’s family and friends, I will refrain from comment other than to say this is obviously a big deal. Rest in peace, Antonin Scalia.

Bye-bye, Bud

Can’t say I’m sorry to see the tenure of MLB Commissioner Bud Selig come to a close.

Bud Selig said Thursday that he plans to retire as baseball commissioner in January 2015 after a term of more than 22 years marked by robust growth in attendance and revenue along with a canceled World Series and a drug scandal.

Some owners — and even his wife — have been skeptical in the past that he really would do it, but this marked the first time that Selig, 79, issued a formal statement that he intends to step down from the sport’s top job.

“It remains my great privilege to serve the game I have loved throughout my life,” Selig said in a statement. “Baseball is the greatest game ever invented, and I look forward to continuing its extraordinary growth and addressing several significant issues during the remainder of my term.

“I am grateful to the owners throughout Major League Baseball for their unwavering support and for allowing me to lead this great institution. I thank our players, who give me unlimited enthusiasm about the future of our game. Together we have taken this sport to new heights and have positioned our national pastime to thrive for generations to come. Most of all, I would like to thank our fans, who are the heart and soul of our game.”

Selig said he will leave Jan. 24, 2015, which would mark the second-longest term for a baseball commissioner behind Kenesaw Mountain Landis, who served from 1920 to 1944.

He also said he will announce a transition plan shortly that will include a reorganization of central baseball management.

Selig’s tenure included splitting each league into three divisions from two, adding wild cards and additional rounds of playoffs, expansion to Arizona and Tampa Bay, instituting instant replay, starting the World Baseball Classic, launching the MLB Network and centralizing the sport’s digital rights under MLB.com.

“The game has grown under him tremendously. He’s made every effort to try to clean the game up,” New York Yankees manager Joe Girardi said. “He’s left his mark on the game. There’s no doubt about it.”

I agree that the game has grown under Selig, and that he deserves credit for many of the good things that have happened. He also deserves blame for the 1994 strike, the now-subsided “contraction” fervor that was largely fueled by laughably dishonest claims about the game’s finances and the false belief that so-called “small market” teams could not be competitive, the moronification of the All Star Game, and the witch hunt that is the obsession with PEDs. He’s always been an owner’s Commissioner, which is why he was tapped to be Commissioner in the first place. I’ll leave the judgments to history, but it’s definitely time for a change.

Jayson Stark lists some of the possible and not-at-all-possible candidates to replace Selig. While I have no doubt which category this would fall into, I endorse what The Slacktivist has to say.

Bud Selig is set to retire as commissioner of Major League Baseball after the 2014 season. Ari Kohen asks, “which old white guy is the odds-on favorite” to replace him? As much as I’d love to see a former player — such as Hank Aaron or Frank Robinson — replace Selig, the commissioner does tend to be a conservative, establishment figure. Mitt Romney is probably a likelier candidate than either of those hall-of-famers.

So here’s my proposal: John Roberts for commissioner of baseball. The chief justice of the Supreme Court would, of course, have to step down from that post in order to accept the promotion, but it shouldn’t be a problem for the president to quickly nominate a replacement.

I’d be willing to compromise and suggest Antonin Scalia as an alternative. Or hey, how about Clarence Thomas, if we’d prefer an old non-white guy? Surely any of these gentlemen would be good philosophical peers of the owners, and would be able to offer some real insight on how to stay just on the right side of that good old anti-trust exemption. Who’s with me on this?

Link roundup on Todd Willingham

Grits finds a bunch of links about Cameron Todd Willingham and the reaction that his case and the New Yorker article about it have generated, to which I added this Dahlia Lithwick article in the comments. Three things:

1. As I have said before, like this person I have no objections to the death penalty in the abstract. I do agree that for some people and for some crimes, it’s the most appropriate response. But in practice, the way we go about doing it is far too riddled with flaws, obstacles, and just plain indifference to the idea that we might get one wrong for me to support. Just look at the pushback that this case is getting from those who had a hand in putting Willingham to death. No amount of evidence will ever convince them they’re wrong. And as long as we have judges like Antonin Scalia, for whom innocence is an inconvenience rather than an injustice, the system that is supposed to prevent this from ever happening simply cannot be trusted.

2. Seeing what Scalia says just reinforces the fact that the so-called “pro-life” movement is a farce. If all life is sacred, and only God gets to play God, then I don’t see how this cannot be deeply troubling to you. Given that it isn’t for so many of them (with a few honorable exceptions noted), and given the lengths they will go to rationalize why it doesn’t trouble them, it’s clear that none of what they say about why abortion is wrong should be taken seriously.

3. I suppose it shouldn’t be a surprise to see the vehemence of the reaction from the crowd that continues to believe Willingham was rightfully put to death. His is the first case to make such a big public splash about executing an innocent man, and it comes at a time when we’ve seen so many other men freed for crimes they provably didn’t commit. Everyone knows what this means, but most don’t want to admit it. Let’s not forget, there was a big backlash against DNA exonerations once. It took time, and sadly an un-ignorable number of wrongfully convicted prisoners, to mute that and make the idea that we need to make it right the mainstream view. I don’t think any rational person doubts that there’s plenty more where Cameron Todd Willingham came from. I just wonder how many more will need to be brought to light before that kind of change in thinking follows.