A devout Catholic, Justice Antonin Scalia once wrote that "for the believing Christian, death is no big deal." For the bench and bar, though, it is hard to imagine a bigger deal than Scalia's passing last week, at the age of 79, in the middle of a contentious Supreme Court term.
His shadow will loom over the court for years to come, but never more than in this term's cases, many of which have been accepted, briefed and even argued on the premise that Scalia would take part in the decision.
In a number of significant cases on the docket, Scalia's vote may well have determined the outcome. And his seat is unlikely to be filled this term, in light of the Republican-controlled Senate's preemptive opposition to a Supreme Court appointment by President Obama, less than a year from his successor's inauguration. In Scalia's absence, important legal questions concerning free speech, redistricting, abortion, the Affordable Care Act and religious liberty will go unanswered this term if the cases that raise them are decided by a 4-4 split, or held over until next term when they can be reargued before a full nine-justice bench.
In the event of a tie vote, the lower court's decision is affirmed. But the Supreme Court's decision, usually stated as a single sentence without an opinion, does not bind anyone but the parties to the case. Therefore, the same issue can be brought to the court again by different parties.
Public Sector Unions
In Friedrichs v. California Teachers Association, a First Amendment challenge to mandatory dues for public-sector unions, Scalia's death probably means that the 1977 precedent allowing such dues will remain on the books, at least until another justice is appointed who is sympathetic to government employees who oppose the unions' policy positions.
After oral argument, the court seemed to be split 5-4 in favor of overruling the old precedent, with Scalia in the majority. The four liberal justices were not unsympathetic to the free speech concerns at stake, but they placed greater weight on stare decisis, the general rule that courts adhere to precedent. The court could decide to rehear the case after a ninth justice is confirmed. But even if the case is decided 4-4, the court may not have to wait long for another case raising the same question.
The Friedrichs petitioners were able to fast-track their case by frankly acknowledging the controlling Supreme Court precedent they challenged. Another petitioner could follow that example if the court is again favorably constituted.
Scalia was uncharacteristically silent in the oral argument in Evenwel v. Abbot, concerning whether the one-person, one-vote rule requires equality of population or of eligible voters. Any holding in support of an eligible-voter standard would have likely required Scalia's vote, so the lower-court decision rejecting that theory and allowing non-citizens to be factored into the equation will likely be affirmed if it is decided this term. That outcome would generally help Democrats and hurt Republicans in border states where non-citizen immigrants swell the population of liberal urban areas.
In this term's other redistricting case, Harris v. Arizona Independent Redistricting Commission, Scalia and the other conservatives asked hard questions of both sides, but appeared skeptical of Arizona's argument that its redistricting plan should be upheld even though it was partially (but not predominantly) driven by partisan motives. If the court splits along party lines in Harris, the lower-court decision upholding the redistricting plan will be upheld without creating any precedent.
Religious Liberty and Healthcare
The court is scheduled to hear its fourth challenge to President Obama's signature healthcare legislation in March. The court actually consolidated seven cases, most famously Little Sisters of the Poor Home for the Aged v. Burwell. The nonprofit religious organization is challenging the Affordable Care Act's requirement that they either provide contraceptive coverage to their employees or certify to their insurance provider because they have religious objections, which would thereby require the insurance providers to take responsibility for providing the contraceptive coverage.
The petitioners challenge the law as a violation of the First Amendment and the Religious Freedom Restoration Act, which prohibits "substantially burden[ing] a person's exercise of religion" unless it is "the least restrictive means of furthering [a] compelling government interest."
Although some expect the court to divide on party lines as it did when private companies challenged the contraceptive mandate in Burwell v. Hobby Lobby, there are reasons to think that even the liberal justices who voted against a exemption to RFRA for private companies in Hobby Lobby may decide differently when the petitioners are religious organizations.
The act already provides a full exemption to the contraceptive mandate for churches and their "integrated auxiliaries," so the added burden for religious organizations that do not fit that definition may seem unjustified. In Hosanna Tabor v. EEOC, the Court was unanimous in holding that the First Amendment protects religious employers from employment discrimination claims brought by their ministers. If the court sees the petitioners here, including a Catholic order of nuns, in the same light, even the court's liberal justices may join in striking down the contraceptive mandate and its responsibility-shifting "accommodation."
If instead the court divides 4-4, it will preserve a split among lower courts, inviting future challenges when the court is fully staffed.
Scalia urged his court to overrule Roe v. Wade and criticized what he saw as the court's "self-awarded sovereignty over a field where it has little proper business." Without Scalia, the court will not roll back its constitutional protection of abortion.
In Whole Woman's Health v. Hellerstedt, the Fifth Circuit upheld Texas laws requiring an abortion provider to have admitting privileges at a local hospital and requiring an abortion clinic to meet the standards of an "ambulatory surgical center." Whether the lower-court opinion stands probably depends on the vote of Justice Anthony Kennedy, who co-authored the 1992 opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, upholding the right to abortion of pre-viable fetuses but allowing state abortion regulations that do not impose an undue burden on the right.
Applying this standard, Kennedy upheld in 2007 the federal partial birth abortion ban in Gonzales v. Carhart, writing that states enjoy "wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Court watchers will scrutinize Kennedy at the March 2 oral argument for signs that his center of gravity has shifted leftward on abortion in Scalia's absence. If the court splits 4-4, it will affirm the Fifth Circuit's opinion upholding the Texas laws.
Fisher v. Texas, a challenge to the University of Texas' affirmative action policy, is one case in which the four remaining conservative justices could issue a majority decision, even if the court splits along party lines. That's because Justice Elena Kagan is recused from the case, leaving only three justices appointed by Democratic presidents. After the oral argument in December, it seemed likely that the five conservative justices would strike down the University of Texas' racial preferences under the Equal Protection Clause, because the university failed to prove that its policy is "narrowly tailored" to meet a "compelling state interest."
But if Kennedy is reluctant to decide the merits with only a four-justice majority, he may use his swing vote to craft a narrower holding that sends the case back to the district court so that the university can introduce new evidence about the allegedly compelling state interest in intra-race diversity.
Several hot-button cases about the scope of the administrative state now working their way through the lower courts may turn on the identity of the next appointment.
A three-judge panel of the D.C. Circuit (including Judge Sri Srinivasan, who has been mentioned as a possible Obama nominee to replace Scalia) is expected to rule this spring on a challenge to the Federal Communications Commission's latest "Open Internet" order, which subjects broadband Internet service to the kind of "common carrier" regulation that governs public utilities, despite a longstanding congressional policy of insulating the Internet from such regulation.
Likewise, the D.C. Circuit will soon hear a challenge to the Environmental Protection Agency's Clean Power Plan, an expansive regulation aimed at carbon emissions from existing power plants that, if it goes into effect, will require the states to engage in economy-wide carbon regulation. Days before Scalia's death, he and the four other conservative justices took the unusual step of granting a stay of the rule during the litigation, a strong indication of their doubts about the rule's legitimacy.
The challengers' arguments in each of these cases, criticizing the agencies' reinterpretation of old statutes to discover new sources of extraordinary regulatory power, seem tailor-made for Scalia. The outcome of these and other administrative law cases, like the challenge to President Obama's "deferred action" immigration policy in Texas v. United States, which the court agreed to hear weeks before Scalia's death, may depend on who appoints his successor
Scalia was often celebrated (or bewailed) as the fixed star of the court's conservative wing. And rightly so. More than any of his colleagues, save possibly Justice Clarence Thomas, Scalia was faithful in his textualist interpretation of statutes and his originalist interpretation of the Constitution. But like any judge worth his salt, Scalia was also self-reflective and willing to change his mind when his consistent methodology demanded a different result. He once wrote in an opinion, "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday," quoting Justice Robert Jackson.
Scalia's death came just as he appeared poised to correct one of his acknowledged mistakes: Auer v. Robbins. In that 1997 opinion for a unanimous Supreme Court, Scalia held that judges must defer to an agency's reasonable interpretation of its own regulations. In fairness to Scalia, the court had announced this deference rule decades earlier, but his was the first opinion to reincarnate the doctrine after passage of the Administrative Procedure Act.
Giving expert agencies leeway to interpret their own rules must have seemed an intuitive, even obvious principle at the time. After all, the court had held 13 years earlier in Chevron U.S.A., Inc. v. Natural Resources Defense Council that courts must defer to an agency's reasonable interpretation of an ambiguous statute. Why not apply that principle to the agency's own regulations as well?
The problem, Scalia came to see, was that Auer gave agencies all the wrong incentives. Unlike Congress, which preserves its control by legislating clearly, an agency enlarges its power by regulating vaguely. Auer allows it to fill in the substantive content of those open-ended rules through "interpretation," free from the duty to invite and respond to public comment.
In 2011, Scalia confessed his error. "It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well," Scalia wrote in a concurrence in Talk America, Inc. v. Michigan Bell Telephone Co. About Auer, he said, "I have become increasingly doubtful of its validity," and he invited parties to file cases in which he could reverse course. "We have not been asked to reconsider Auer in the present case. When we are, I will be receptive to doing so."
Scalia put it more forcefully two years later in another concurrence in Decker v. Northwest Environmental Defense Center. "Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. Enough is enough." It was a statement that perhaps only Auer's author could have delivered, and it was effective. Chief Justice John Roberts and Justice Samuel Alito both agreed in Decker that "it may be appropriate to reconsider [Auer] in an appropriate case."
And just last term, in Perez v. Mortgage Bankers Association, a case that implicated Auer deference only indirectly, Scalia and Thomas each penned separate opinions calling for Auer to be overruled. Scalia was gradually assembling the majority he would need to undo his old mistake.
But Scalia's opinion in Perez wasn't just a repeat of Decker. This time he added a new reason for abandoning Auer that he had only hinted at before: Deferring to an agency's interpretation of its own rules conflicts with the Administrative Procedure Act's instruction that "the reviewing court shall ... determine the meaning or applicability of the terms of an agency action." This means, as Scalia explained, that "courts will decide — with no deference to the agency — whether [the agency's] interpretation is correct."
By requiring the reviewing court to yield to an agency's interpretation of its rule, Auer contradicted the plain meaning of the statute. For Scalia, the Court's arch-textualist, this was a cardinal sin, one for which he was willing to make amends. "I would therefore restore the balance originally struck by the APA with respect to an agency's interpretation of its own regulations, not by rewriting the act in order to make up for Auer, but by abandoning Auer and applying the act as written."
Scalia's opinion in Perez sent a shock through the world of administrative law, because his rediscovery of the plain meaning of the APA's judicial review provision called into question not just Auer's doctrine of deference to an agency's interpretation of its own rules, but also Chevron's bedrock principle of deference to agency interpretations of ambiguous statutes, the foundation of the modern administrative state. The APA, wrote Scalia, "contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes" too, not just regulations.
This was a surprise, because Scalia had been seen as Chevron's champion. Just two years before Perez, Scalia had declined to impose any limit on Chevron deference in City of Arlington v. FCC, even though the agency interpretation in question went to the scope of the agency's own authority to regulate. If this seemed to "leave the fox in charge of the henhouse," Scalia's prescription was clearer statutes from Congress, not less deference for agencies.
And yet in his 2015 concurrence in Perez, here was Scalia insisting that "it remains the responsibility of the court to decide whether the law means what the agency says it means." These two opinions may not be irreconcilable, but they certainly point in different directions.
What happened to prompt this shift from Scalia's full-throated defense of Chevron in 2013 to his grave doubts about the entire project of judicial deference in 2015?
One answer may be the radical metastasis of the administrative state that the court witnessed in the interim. It was during those months that Scalia penned his decision in Utility Air Regulatory Group v. EPA rejecting the agency's claim to Chevron deference for its "rewriting" of clear numerical thresholds in the Clean Air Act. And it was during those months that the court heard the Department of Health and Human Services claim Chevron deference in King v. Burwell for its interpretation of "exchange established by the state" in the Affordable Care Act to include an exchange established by the federal government.
Perhaps Scalia had come to fear that congressional clarity was not enough to cabin the administrative state, and that in the hands of modern agencies, "[w]ords," as his dissent would state in King v. Burwell, "no longer have meaning." It would take a watchful court to keep the agencies anchored to the statutory text. To do otherwise, Scalia said in Utility Air Regulatory Group, would be "to stand on the dock and wave goodbye" as the agencies embark on an uncharted "voyage of discovery.
Whatever the reason, Perez reflected a shift in Scalia's orientation toward the administrative state. With at least four justices willing to reconsider Auer, that brand of judicial deference seemed destined for the dustbin of history. And with Scalia rooting his opposition to Auer in the text of the Administrative Procedure Act, some speculated that the fall of Auer could presage the fall of Chevron itself.
It was therefore with anticipation (or trepidation) that administrative law practitioners and scholars read last October an opinion from Judge Frank Easterbrook, Scalia's first choice for his own replacement, highlighting United Student Aid Funds v. Bible as a vehicle for overruling Auer. That case involves the Department of Education's re-interpretation of a rule to forbid lenders from charging to student loan borrowers certain collection costs that the department had previously declared to be "reasonable" under the very same rule.
The lender's petition for certiorari seemed to offer exactly the opportunity Scalia had been looking for since 2011. Without Scalia, a decision to hear this case, though still possible, is less likely. Four votes are required for the court to hear a case, but only three sitting justices have publicly indicated their willingness to reconsider Auer.
The death of a sitting Supreme Court justice inevitably leaves loose ends in the fabric of the law. But to students of administrative law, Scalia's untimely death rips the last chapter from a story of which only he knew the ending. Now the future of judicial deference, like many other areas of the law, may well turn on the identity of the next justice.
No justice in recent memory has had a greater impact on American society than Scalia, but in some respects his death could prove as consequential as his life. The public's renewed focus on the court could decide the outcome of the presidential election in November, which could in turn determine who will fill the next several vacancies on the Supreme Court.
But setting aside the turmoil of this term's docket, the frenzy of the election year and the furor that will inevitably attend any nomination to replace him, Scalia's departure from the court was bound to be a big deal. The law has lost its most beloved, most passionate, most colorful, most infuriating exponent. It will never be the same.
Adam Gustafson is a lawyer with Boyden Gray & Associates in Washington, where he works on constitutional and regulatory issues. His firm filed briefs in the Open Internet Order case, the Clean Power Plan case and United Student Aid Funds v. Bible.