Unions, Affirmative Action, More: 6 Supreme Court Rulings that Antonin Scalia Could Have Changed Had He Lived

Legendary Justice Antonin Scalia died on February 13th, right in the middle of a session of the highest Court in the land. Scalia was a conservative intellectual giant, providing millions with examples of the bedrock of constitutionalism – where the constitution is interpreted literally without much or any care for the nuances of the modern era. His intelligence and breadth of knowledge were unimpeachable. Whatever your politics, you have to acknowledge that Scalia was a unique and at least somewhat valuable voice on the Court. If you disagree, take it up with the notorious RBG. By her own admission, Ruth Bader Ginsburg was “best buddies” with the late justice.

That said, there is also no doubt that Antonin Scalia loved the sound of his own voice, and straddled the line of judge and politician closer than any justice in the modern era. His ultra-constitutionalist stance certainly wavered when it came into contact with Republican priorities, as Jon Stewart once brilliantly demonstrated.

Scalia’s death may be more consequential to the future of this country than Barack Obama’s reelection. Here are six cases decided by one vote that are emblematic of where we are and where we may be headed.

Quick side note: Big thanks to the team at SCOTUSBlog for informing the bulk of this research.

1. Hawkins v. Community Bank of Raymore

Ruling: 4-4 – The lower court’s decision was affirmed in an equally divided vote that spouses who guarantee commercial loans are not “applicants” under the Equal Credit Opportunity Act (ECOA).

At first glance, this looks like yet another bank squishing the little guy, but it’s really about sloppy work by the legislature. The Community Bank of Raymore demanded guarantees from the wives of applicants who wanted a loan to build a residential subdivision. The dispute stems from the text of ECOA, where it outlaws discrimination on the basis of marital status and defines an “applicant” as “any person who applies to a creditor directly for an extension, renewal, or continuation of credit.” Scalia was very active during the hearing of this case, as Ronald Mann of SCOTUSblog detailed:

Justice Antonin Scalia asked whether “the agency can make that up”? He went on to offer a hypothetical suggesting that he had written a recommendation to a law school, asking that it admit a young woman, putting his “reputation on the line on her behalf. Am I an applicant to the law school? Would anybody use the English language that way?”

The justices proposed various other hypotheticals that tested the shaky ground this portion of ECOA stands on. Even though the bank is using the word “applicant” to describe both the applicant and his wife, the wife is really acting more as a co-signer or a guarantor. Affirming that an applicant’s wife qualifies as an “applicant” under ECOA raises some tricky questions about what amount of control the spouse has over the loan. Given Scalia’s skepticism of its use of the English language during the arguments and his aversion to most government, it seems unlikely that he would have ruled against the lower court’s decision.

2. Dollar General Corporation v. Mississippi Band of Choctaw Indians

Ruling: 4-4 – The issue at hand is whether Native American tribal courts have jurisdiction over non-Native Americans for tort claims. This is a wonkish case buried in the history of the Court which has massive implications for Native American sovereignty. The tribe and a significant number of amici including the United States contend this is settled law while Dollar General claims otherwise.

The dispute stems from an alleged sexual assault by a Dollar General manager on a 13-year-old boy. The Choctaw Indian tribe had a program where they would pay children’s salaries while they worked at local businesses. However, there is no written agreement between the Choctaw Indians and Dollar General on this specific program, and Dollar General contends that this manager’s consent to doing the program goes against company policy, and therefore, they are not liable under tribal law. They effectively argued that the racist rulings of the past one hundred years had established precedent, while the Choctaw Indians used the entirety of the Court’s history to demonstrate that their sovereignty is not limited to the land and people confined to America’s forgotten zones. The Supreme Court could not reach a decision, so this will go back down into the lower courts, and it would not be a surprise to see it reappear in a later session when the Court hopefully has its necessary amount of justices.

3. Fisher v. University of Texas at Austin

Elena Kagan recused herself from this case because she had a role in the government’s arguments in the lower courts when she was U.S. Solicitor General.

Ruling: 4-3 – Justice Alito wrote in his dissent: “Something strange has happened since our prior decision in this case.” Given that the majority opinion was only twenty pages long, he wasn’t lying. This is an odd decision on a major affirmative action case.

In 2013, Anthony Kennedy and a 7-1 majority affirmed that race was not a necessary consideration when constructing a freshman class, and that universities are responsible for “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” The case went back to the lower court where it ruled that race should be considered when assessing a student’s worthiness for admission.

So why did the court decide to hear the case again? As Richard Khalenberg explained at SCOTUSBlog:

Fisher I was a compromise seven-to-one ruling which deferred two key questions: (1) what is “sufficient” racial diversity (i.e., what constitutes a “critical mass” of minority students)? (2) what makes a race-neutral strategy “workable” vs. “unworkable”?

Texas had been using a few different methods to frame its admissions policies, including one called the Top Ten Percent Plan – where they grant automatic entry into the university for any student who finishes high school with grades in the top ten percent of their class. What threw a wrench into it is the segregation of schools in Texas. The logic behind a rule like this is that in a meritocratic system, rewards will be distributed by…well, merit. Seems pretty simple until you hold it up to the light of reality. The segregation in Texas restricts this theoretical meritocracy, but that doesn’t mean that the Ten Percent Rule is without its benefits. This system certainly aids determined students from struggling schools in poor communities, which is a shade of person we should all want at our university.

The liberal wing of the court dismissed this argument in the majority opinion, stating that “the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence” – seemingly implying that poor and/or minority kids are bad students. Alito shot back that this “argument turns affirmative action on its head. Affirmative-action programs were created to help disadvantaged students.”

Ultimately, the majority issued a tepid ruling that established that this case was unique, and while all Supreme Court decisions establish precedent, it insinuated that this case was far from a landmark decision. Given Scalia’s open disdain for any admission policy in any circumstance not based on merit, it seems likely that he would have tied this one up, simply affirming the decision of the lower court instead of creating a precedent.

4. Friedrichs v. California Teachers Association

Ruling: 4-4 – Unions charge fees to their members and smaller ones to their non-members. A group of teachers in California challenged the non-member fees as a violation of their first amendment rights. Not only are unions very politically active, but they argued their mere existence was a political statement. The challenge was to effectively overturn a 1977 case, Abood v. Detroit Board of Education, which affirmed that a regulatory system can feasibly be constructed to ensure non-members are not billed for non-essential union activity. The lawyers for the Christian Educators Association International minced no words in their petition that began with: “This is a challenge to the largest regime of state-compelled speech for public employees in the nation.”

A split decision kept the lower court’s ruling in place that these fees are not unconstitutional, and given the deliberate nature in which this case was constructed, we’re likely to see it or something like it come the Court’s way once Congress gets its act together and abides by their constitutional requirements.

Even though I don’t feel confident speculating on a dead man’s theoretical intentions, I think we’re safe here. Scalia siding with public sector unions in a first amendment case sounds like an SNL skit that gets cut right before the show.

5. RJR Nabisco Inc v. The European Community

Sonia Sotomayor recused herself from this case as she was associated with an earlier version of it as a judge on the 2nd circuit.

Ruling: 4-3. This case centered around whether the Racketeer Influenced and Corrupt Organizations Act (RICO) applies outside the United States, and oh boy did they have a doozy on their hands. The EC and its 26 member states filed a lawsuit against Nabisco and some of its affiliated companies alleging that they are involved in money laundering for Russian, Colombian, and some Asian crime syndicates. RJR’s cigarettes are at the center of this alleged scheme, which constitute about a third of the brands in the United States. The EC has been pursuing this case for the last sixteen years. The court issued a conflicted ruling that was bad for the EC, good for RJR, and helpful to the federal government to pursue future RICO cases.

It had initially been dismissed by a lower court as the judge asserted that RICO did not apply to an entity outside the United States harmed by another foreign actor, but on appeal it was allowed to pass on to the Supreme Court. RJR Nabisco’s lawyers contended that this is not a RICO case, while the EC argued that they were “engaged in racketeering activity that indisputably took place in the United States and involved indisputably domestic enterprises.”

The ruling wound up being as complex as the case itself, as the Court agreed with the EC that RICO could apply to violations outside the United States, but that a private plaintiff would have to prove injuries within the US, and the EC waived their domestic claims in a previous session. Even though it was decided down ideological lines, with de facto Chief Justice Anthony Kennedy siding with the conservative wing, it was far from a simple decision, as SCOTUSBlog summarized:

Reversed and remanded, 4-3, in an opinion by Justice Alito on June 20, 2016. Justices Ginsburg, Breyer, and Kagan joined as to Parts I, II, and III. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment.

6. United States v. Texas

Ruling: 4-4 – This case was a natural result of the dysfunction in Washington. Because Congress and the President cannot come to a long term solution for immigration, short term stopgaps have been applied for those pesky people whose lives somehow still go on. Some of those stopgaps made by President Obama in 2012 and 2014 to keep illegal immigrants in the country really made those on the right mad, as they asserted that he was stepping outside the bounds of the laws passed by Congress. Texas was more than happy to step up to the plate to take on this fight. Lyle Denniston explained that this case rests on:

“two fundamental structural questions about American government: when does the executive branch have the option of choosing how it applies a law passed by Congress, without violating Congress’s basic power to legislate, and when does Congress have the authority to take away that discretion, without intruding on executive authority?”

A divided lower court had upheld an order halting the enforcement of these laws, and a divided Supreme Court affirmed their ruling in a decision that is perfectly emblematic of our current state of affairs. Part of the issue was that the United States pursued an argument that narrowed Article III’s “case or controversy” requirement to never apply to cases where the defendant could have taken action on its own to avoid harm. It’s basically victim shaming, Supreme Court style. While this was a very politically charged case, it’s not a simple assumption that Scalia would have come down on the side of Texas, as he has historically been very averse to standing to sue, and could have argued that the case should be thrown out.

These six cases all have dramatic implications for the country, and four of them were affirmed by an equally divided court. The two decisions were disjointed and far from affirmative, and it is clear that the Court is missing its curmudgeonly titan, or at least someone who can actually weigh in on the pressing issues of our time. Antonin Scalia’s death has already sent shockwaves across the Judicial system, as well as unseen ripples across the fabric of this country’s future.