Former Supreme Court Justice Antonin Scalia was generally supportive of local government, and his passing leaves many questions as to how the nation’s highest court will rule in upcoming cases affecting cities.

By Lisa Soronen.

Justice Scalia’s death came at an uncertain time in our nation’s history, given the upcoming presidential election. Unsurprisingly, while some of the news coverage focused on the substance of his nearly 30-year career as a Supreme Court Justice, most news coverage discussed the challenges of replacing him.

The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty and same-sex marriage. Attorneys will remember Justice Scalia as an “originalist” who believed that the Constitution should be interpreted as the founders intended and a “textualist” who interpreted laws by looking only at the words on the page. Court watchers admired Justice Scalia’s beautifully written, clear, and often colorful opinions.

But what was Justice Scalia’s impact on state and local government?

Noteworthy Cases

Justice Scalia will probably be most remembered for writing District of Columbia v. Heller(2008), in which he held that the Second Amendment protects an individual’s right to possess a gun for traditionally lawful purposes, such as self-defense, within the home.

Like most conservatives, Justice Scalia was often sympathetic to states’ rights. For example, in his dissenting opinion in the same-sex marriage cases, he criticized the Court for acting as a “super” legislature. And his dissenting opinion in Arizona v. United States (2012), involving challenges to Arizona laws designed to crack down on illegal immigration, rested on state sovereignty.

Like other conservative Justices, Justice Scalia also regularly supported property owners in land use and taking cases. For example, early on the bench, he wrote the Court’s opinion in Nollan v. California Coastal Communities (1987), holding that conditioning the granting of a building permit upon the applicants’ dedication of property to the public without compensation could amount to an unconstitutional taking.

Justice Scalia generally was supportive of state and local government in qualified immunity cases. Specifically, he wrote the Court’s opinion in Scott v. Harris (2007), which held that an officer using deadly force to stop a speeding motorist was entitled to qualified immunity.

When it came to Fourth Amendment searches, Justice Scalia’s jurisprudence was notably mixed. For example, he dissented from the Court’s decision in Maryland v. King (2013), upholding warrantless DNA testing of arrestees. But he also dissented from the Court’s decision in Los Angeles v. Patel (2014), holding that hotel registry ordinances allowing police inspections without pre-compliance judicial review violate the Fourth Amendment.

Amicus Briefs

The State and Local Legal Center (SLLC) filed amicus briefs before the Supreme Court the entire time Justice Scalia was a member of the high court. Amicus brief writers, perhaps above all, hope that the Justices will care about the implications that cases will have on their clients when rendering decisions and writing opinion.

Justice Scalia wasn’t one to turn a blind eye on how a case would affect state and local government. In fact, just last term in Los Angeles v. Patel, he cited the SLLC’s amicus brief in his dissenting opinion supporting the Los Angeles ordinance, noting that such ordinances and state statutes are common.

As far as the SLLC was concerned, Justice Scalia’s work wasn’t done. Just this month the SLLC filed an amicus brief asking the Court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies. Justice Scalia wrote the opinion in Auer v. Robbins (1997), holding that courts must defer to an agency’s interpretation of its own regulations. In Perez v. Mortgage Bankers Association (2015), Justice Scalia (and two other Justices) expressed skepticism about Auer.

What the Future Holds

(Wikimedia Commons)

Antonin Scalia was a Supreme Court Justice from 1986 until his death in 2016. (Wikimedia Commons)

So the million dollar question (other than who will fill Justice Scalia’s seat) is: What will happen to undecided Supreme Court cases heard or to be heard this term?

The short answer is that it depends, and in all instances isn’t entirely clear.

If a Supreme Court case looks like it will NOT result in a 4-4 decision, it will be decided as usual with only eight Justices.

If a case looks like it may result in a 4-4 decision, however, the Court now has two choices: wait for the ninth Justice to join the Court and rehear the case, or issue a non-precedential 4-4 decision that affirms the lower court decision.

SCOTUSblog publisher Tom Goldstein predicts that the Court will rehear 4-4 cases.

It is, of course, impossible to know which cases would have been 5-4 had Justice Scalia lived. But a good rule of thumb is that particularly important, controversial cases are often 5-4. Six cases this term meet just about any definition of important and controversial.

Let’s take a look at the five such cases affecting state and local government. Unsurprisingly, Justice Kennedy’s vote probably will be key in all of them.

  • Public Sector Unions

In Friedrichs v. California Teachers Association the Court will decide whether to overruleAbood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs.

Justices Scalia and Kennedy joined two previous Justice Alito opinions criticizing Abood. Unless Justice Kennedy has a change of heart or one of the other conservative Justices has second thoughts about overturning precedent regardless of how much he dislikes it, this case is likely to be reheard.

  • Immigration

In United States v. Texas the Court will decide whether the President’s deferred action immigration program violates federal law or is unconstitutional.

The stakes are the highest if the Court is 4-4 in this case. The federal government and the Supreme Court worked hard to make sure this case got on the docket this term because a new President could scrap the program. If this case is reargued, unless the new Justice joined the Court next fall, it seems unlikely the Court could render an opinion before January 2017.

  • One-person-one-vote

The issue in Evenwel v. Abbott is whether voting population must be the metric in ensuring that state and local legislative districts comply with the “one-person one-vote.”

Evenwell is considered the most important voting rights case in decades. Using voting population as the metric tends to favor more rural, Republican areas. This case seems ripe for rehearing unless Justice Kennedy sides with the liberals.

  • Abortion

The issue in Whole Women’s Health v. Cole is whether Texas’s admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions.

The conventional wisdom on abortion is that only Justice Kennedy’s votes is at play. If he is willing to strike down Texas’s laws this case will not be reheard. The fact that Justice Kennedy voted to prevent these laws from going into place before the Court decided to review the case indicates he may be skeptical of the laws, making a 4-4 vote less likely.

  • Affirmative action

In Fisher v. University of Texas at Austin  the Court has agreed to decide whether UT-Austin’s race-conscious admissions policy is unconstitutional.

More conservatives Justices are probably as likely to win this case with or without Justice Scalia. Justice Kagan is recused and Justice Kennedy is no fan of affirmative action. But the Court heard this case once before rendering a narrow 7-1 opinion against UT-Austin. You never know with cases involving race.

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Originally posted at Cities Speak.

Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.