I wrote Justice Antonin Scalia on February 18, and thought I’d said pretty much everything I had to say. Alas, not!
Justice Scalia died on February 13, only three weeks ago. What has me writing again is the evident impact his death has had on the U.S. Supreme Court and the country. No observant person ever doubted the fact that Justice Scalia was a force on the Court. I suspect, though, that even the sharpest observers are, like me (who is not a part of that cohort), goggle-eyed about how much has changed in 21 days. For proof, read The Supreme Court’s New Era by Linda Greenhouse—is a part of the sharpest observer cohort, and should maybe be its honorary chair—for the New York Times on March 3.
So what’s the buzz? First, and this is silly season stuff, Justice Clarence Thomas asked a question during the oral argument in Voisine v. United States, No. 14-10154, the third case in which the Court heard from counsel after Justice Scalia’s passing.* And the big deal? He lasted asked a question during oral argument on February 26, 2006.
So what has mattered? In Whole Women’s Health v. Hellerstedt, No. 15-274, the Court addressed a Texas statute which imposed a significant number of requirements on abortion clinics, all in the name of protecting women’s health. (Except not so much, for when Justice Ruth Bader Ginsburg asked the Texas Solicitor General how women in West Texas could get abortions after the El Paso clinic closed, he said they can go to New Mexico. Where the requirements Texas imposed to “protect” women’s health do not exist.)
When the abortion case was accepted for review, it seemed likely that the Court would affirm the 5th Circuit decision, upholding the law, by 5-4 vote. Before the oral argument, a 4-4 tie, which would uphold the decision, seemed most likely. Now, the case may be remanded with instructions to get more evidence on whether the law unduly burdens women seeking abortions. Or, and this seems more than possible (and maybe even most likely), there will be a 5-3 decision, written by Justice Anthony Kennedy, reversing the 5th Circuit and holding that the law is unconstitutional. (The Court, today, stayed a Louisiana law which is very similar to the Texas law. Details here.)
When Justice Scalia was alive, the Court stayed the Clean Power Act. (Details here, courtesy of Jonathan Adler for the Washington Post on February 9.) And now? On March 3, Chief Justice Roberts unilaterally denied a stay request associated with an Environmental Protection Agency regulation limiting mercury and other hard metal emissions from coal-fired power plants. Adam Liptak and Coral Davenport explain the matter in Chief Justice Rejects Effort to Block E.P.A. Limit on Power Plants for the New York Times on March 3.
Then there’s the Dow Chemical settlement. Bloomberg doesn’t pull punches in its headline, which is Scalia’s Death Prompts Dow to Settle Suits for $835 Million. The story, written by Jef Feeley and Greg Stohr, quotes Dow Chemical thusly:
Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation.
I’ve been an attorney for almost 35 years, and paid attention to the Court before I became a member of the Bar. I can’t say with any degree of certainty that Justice Scalia’s death caused Justice Thomas to speak, affected Justice Kennedy’s view of the Texas abortion law, or gave the Chief a reason to unilaterally deny a stay in an environmental case. Dow Chemical does, however, speak for itself, and it’s worth noting that Justice Thomas was silent for more than 10 years, Justice Kennedy was expected to be a sure vote to uphold the circuit court decision in the Texas abortion case, and the CJ has not, previously, unilaterally denied any request for a stay of an environmental law or regulation. (Truth be told, who knew he could do that? Can he do that?)
Say what you will, it seems like Justice Antoni Scalia really mattered. In a really bad way, he made a difference.***
*The issue which prompted the question (and follow-on questions)? Whether someone convicted of a domestic violence misdemeanor should, perhaps forever, lose his right to own a firearm. Thank you, Justice Thomas, for reminding us about how absurd the gun rights positions are.
**I’m hard-pressed not to channel Ding Dong, the Witch is Dead.