The Supreme Court without Scalia

Abortion. Affirmative action. Contraception mandates. Immigration. One person one vote. Public sector labour unions. Each of these remain as matters for the now eight justices of the United States Supreme Court to decide this term.

Many of these would have been the blockbuster end-of-term 5-4 decisions. Many of these were the result of strategic litigation or legislation by conservatives designed to test current Supreme Court doctrine. The four liberal justices of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will very likely remain a clear bloc in these. Of the remaining conservative justices, Chief Justice John Roberts and particularly Anthony Kennedy would be expected to join the liberal justices on some of these matters, with Clarence Thomas and Samuel Alito unlikely to be with them on any of these. If the court splits 4-4, the decision of the Circuit Court of Appeals stands, with no precedential weight outside of the circuit area. As outlined by Linda Hirshman in December, because of the composition of the circuit courts of appeals, this will tend to favour the liberals. But let us consider each of these major cases in detail.

Therefore, the unexpected death of Antonin Scalia will have quite an effect on each of these, if we take Senate Republicans at their word, that they will not support any successor proposed by Barack Obama.

Abortion: Whole Woman’s Health v Hellerstedt

Abortion restrictions in the United States are currently subject to the “undue burden” test of Planned Parenthood v Casey (1992), a plurality opinion jointly written by Anthony Kennedy, Sandra Day O’Connor and David Souter. The court upheld provisions of a Pennsylvania law requiring a 24-hour waiting period, parental consent, a restrictive definition of medical emergency, and reporting requirements for abortion services. They held that requiring spousal notice of an abortion was such an undue burden.