With Justice Antonin Scalia’s death, the Supreme Court stands at eight justices, and the GOP-controlled Congress and Democratic President Obama are in a high-stakes stand-off.
With only eight votes on the court, the possibility of a tie increases. When there is a tie, two things happen. First, the lower court decision stands. Second, and perhaps more importantly, the Supreme Court’s opinion does not establish precedent. Without a definitive court ruling, the law may not be consistently interpreted by lower courts throughout the country.
An eight-member court is thus unable to fully dispose of the most contentious issues. In particular, the court is now unable to dispose of any case in which Scalia would have joined with exactly four of his fellow justices.
These facts will have immediate consequences for cases the court is currently considering. In the first case, the court will decide whether the Affordable Care Act violates employers’ religious liberty by requiring that either employers provide contraceptive coverage or let insurance companies or the government handle coverage.
The case itself consolidates seven different cases wherein federal appeals have found that the contraception mandate does not violate the employers’ rights. So, if the court is tied on this issue, then the consequence will be favorable to liberals. But, again, the court’s decision will not establish precedent and therefore will not be controlling on other courts that have not yet ruled on the issue.
Another case concerns the constitutionality of Obama’s executive actions on immigration. In this case, the lower courts have sided with conservatives, finding that Obama’s actions to defer deportation of undocumented immigrants (the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA) is likely illegal and/or unconstitutional. A tied court would mean that, in effect, the DAPA program is dead (for now).
On these two issues — abortion and separation of powers — Scalia was particularly conservative relative to his colleagues. In his absence, the best conservatives can hope for now is a tied court.
For conservatives, these cases present mixed blessings. In the immigration case, for example, they might get their preferred outcome, while also avoiding a precedent that could limit discretion for future presidents, who could themselves be conservatives.
At the same time, the contraception case — as well as other contentious cases about affirmative action and public unions where Scalia might have delivered a critical conservative vote — are the culmination of years-long litigation efforts. A stalemate at the Supreme Court would be far from a satisfying outcome.
This gets at the broader problem an eight-vote Supreme Court poses for conservatives. The court does not unilaterally make its own agenda. It must pick and choose from issues that are brought to it — by citizens, interest groups, businesses, governments and others. In a polarized and divided government, the only practical venue to obtain quick policy change is the courts.
Many conservatives, angered by eight years of Obama administration policies, have looked to the courts for exactly that. So the limited power of an eight-vote Supreme Court will only further frustrate the conservative base of the Republican Party.
This puts Republican Majority Leader Mitch McConnell and his Senate colleagues between a rock and a hard place: Getting a decisive vote on some or all of these forthcoming cases requires acquiescing to an Obama nominee for the Supreme Court. Stonewalling such a nominee requires withstanding the heat of a simmering conservative base. Given that McConnell has 24 colleagues standing for reelection, and (retiring) Senate Minority Leader Harry Reid has only 10, it’s already pretty hot in Mitch’s kitchen.
What is more, because of the possibility that Senate Republicans find themselves in a difficult position, Obama’s incentives are potentially more complex than they might appear at first blush. In particular, the president’s incentives depend less on the prospect of 4-4 decisions in these pending cases.
Instead, his incentives depend more on his legacy because whoever fills Scalia’s seat will rule on many future cases — most likely including cases central to Obama’s agenda while in office, such as health care reform and any potential gun control regulations.
Obama’s incentives also depend on uncertainty about which party will control the White House next year. His incentive is to fill the vacancy himself rather than take the risk that a Republican will have that power.
His best strategy is simple: Find a safe nominee (well qualified, politically moderate) who is willing to accept the offer, and throw the ball into the court of McConnell and his colleagues.
We’ll grab our popcorn.