One of nine. Five to four.
Those are the numbers that bring developments of the U.S. Supreme Court into sharp focus in Hawaii from nearly 5,000 miles away. The voting power that the late Supreme Court Justice Antonin Scalia wielded as one of the nine was a constant, of course, equal to that of any of his colleagues on the nation’s highest court.
However it’s at this juncture in particular — when rulings so frequently emerge with the narrowest of majorities, the votes breaking 5-4 along partisan lines — that his death has such political repercussions.
It matters greatly whether the appointment ultimately is made by a Democrat or Republican. The fact that Scalia died in the midst of a bruising presidential campaign season should make everyone, in Hawaii as much as anyplace, take notice.
It’s a battle that will engage Democratic President Barack Obama, who pledges to nominate a successor while in his final year of office, and a GOP-led U.S. Senate with the votes to reject any name Obama sends to Capitol Hill.
Almost anyone Obama suggests will be to the political left of the deep-red-conservative Scalia, which would add one to the liberal camp now numbering four justices. Justice Anthony Kennedy often serves as a swing vote, breaking the tie.
“Justice Scalia’s replacement, whenever it comes, will be of enormous importance to everyone,” said Mark Bennett, former state attorney general under the Linda Lingle administration.
“Basically, if the next Supreme Court justice is in the conservative mold, as would happen if he was appointed by a Republican president, that would maintain the status quo,” Bennett said.
“If a Democratic president got the appointment … the balance would swing to five. You might not have a swing vote anymore; if you did, it would probably be Justice (Stephen) Breyer.”
One favorite pastime for Hawaii judiciary-watchers last week was that kind of crystal ball-gazing. But there are more immediate questions concerning Hawaii before the high court, as well.
In the most current development, the coalition joining a case seeking to preserve access to contraceptions under the Affordable Care Act grew on Friday to 16 states, including Hawaii, and the District of Columbia. They are arguing that an opt-out provision for religious organizations accommodates their objections about contraceptives being part of health coverage.
But also recently, and more directly involving Hawaii, the high court in November put a stay on completing an election for a Native Hawaiian self-governance convention — the ‘aha that is now underway, with unelected delegates.
That whole episode underscores the potential effect of a single vote, said Avi Soifer, dean of the William S. Richardson School of Law at the University of Hawaii.
It took four votes of the high court to put a stay on the election, Soifer said, in what he called “a highly unusual move.” A new justice could change the outcome of such maneuvers.
Most observers believe a Democratic appointee would be more sympathetic to Native Hawaiian interests, Bennett said, but even that is not a prediction one can take to the bank. The Hawaii landmark case Rice v. Cayetano illustrates that point. In that ruling, opening the Office of Hawaiian Affairs board of trustees elections to non-Hawaiian voters, Justice Breyer took the plaintiff’s side instead of the state’s, he added.
Scalia was known as a rock-ribbed conservative who based his reading of cases on the original language of the Constitution. But even he sided with the liberals in certain criminal justice cases protecting rights of the accused. These included decisions involving the “confrontation clause” of the Constitution, which affirms the defendant’s right to confront witnesses against him or her.
“There was a question in a series of cases: how literal was that clause?” Bennett added. “Justice Scalia sided with the liberals in conformance with his originalist philosophy.”
There have been numerous past examples of sitting justices making different decisions than had been predicted at their nomination. This may be less likely now in the age of the Internet, when everything a nominee has ever written can be researched more easily.
However, Soifer said, even with that, there could be surprises.
“People change on the court, partly because they’re totally free at that point,” he said. “They are only writing for history or posterity.”
Among the docketed cases under close watch in Hawaii, with its large public-sector union constituency, is Friedrichs v. California Teachers Association. The teachers union maintained it could mandate dues, used for nonpolitical purposes, even from employees who declined to join the union.
In that case the challenger wanted to lose at the lower court because that would speed its acceptance by the Supreme Court, where it hoped for a decision with wide-reaching impact, Soifer said.
Now that tactic seems likely to backfire, he added: A 4-4 tie is anticipated without Scalia. And in the event of a tie, the lower court ruling — in this case favoring the unions — will prevail.
Andrea Freeman, assistant professor of law at UH, also cited the case Whole Woman’s Health v. Cole as having uncertain consequences with the unsettled makeup of the court.
There are several important issues coming before the high court this term where the outcome is more uncertain after Scalia’s passing that will have an impact on some Hawaii residents.
“Texas’ regulations essentially render abortions inaccessible to most women who need or want them,” Freeman said. “If the court upholds these stringent regulations, it could lead to changes in abortion laws here.
“Scalia being out of the mix on this one could lead to a split decision,” she added. “And if a liberal judge comes on the court, we could see an expansion of women’s rights in this area which legislatures and the court have been chipping away at ever since Roe v. Wade.”
Freeman also noted that the court intended to decide this term whether Obama’s executive action on immigration — a variation on the failed “Dream Act” that sought to protect undocumented immigrants who came to this country as children — are constitutional.
“These directives make it easier for children who have lived here all their lives but were born to undocumented parents to attend school and to work,” she said. “The decision will have a direct impact on ‘dreamers’ living in Hawaii, who have more hope for a positive outcome now that Scalia is gone.
“There is also an affirmative action case which could dismantle programs seeking to benefit racial minorities, including Native Hawaiians.”
Steven Levinson, the retired Hawaii Supreme Court justice who championed decisions and legislation legalizing same-sex marriage, pointed out that at least two more vacancies are likely on the court in the next few years. Justices Breyer and Ruth Bader Ginsburg, both from the liberal wing, are widely expected to retire.
Even with those changes, Levinson said he doesn’t expect a reversal on many established fronts, including the consequences of the same-sex marriage ruling in Obergefell v. Hodges.
“Some of the Republican candidates are talking about appointing justices who will overturn the same-sex marriage ruling,” he said. “But by then thousands of same-sex couples will have gotten married … Once a constitutional right is given, the court doesn’t want to take it away.
“I don’t think the U.S. Supreme Court is going to overrule Obergefell, regardless of who’s on it,” Levinson added. “I think marriage equality is here to stay.”
In the meantime, other issues are less certain, Soifer said, and the average citizen ought to be aware of that. A lot hangs in the balance.
“That is emphasized when the court is closely divided on some of the major issues of the day, which range from access to the courts, abortion, same-sex marriage and many others,” he said. “In basic questions of the power of the president and the role of Congress. they (the justices) are the key decisionmakers.
“The public doesn’t fully grasp how important the Supreme Court and its decisions are to our daily lives.”
Cases before the highest court
Here’s a glance at some of the questions pending before the U.S. Supreme Court:
>> Friedrichs v. California Teachers Association — Will public sector unions be allowed to collect dues for activities such as collective bargaining, even from workers who decline to join?
>> Evenwel v. Abbott — Will voting districts be based on the count of the total population or of voters?
>> Whole Woman’s Health v. Cole — Are the Texas restrictions on abortion clinic operations an unconstitutional bar on access to abortion services?
>> Tyson Foods v. Bouaphakeo — Will restrictions on employees defending their rights through class action lawsuits be upheld or struck down?
>> Zubik v. Burwell — Does a requirement that employers cover contraception for women as part of employer-provided health insurance violate the Religious Freedom Restoration Act?
>> Fisher v. University of Texas — Can affirmative-action programs in public institutions of higher education be found constitutional?
>> U.S. v. Texas — Was President Barack Obama within his constitutional rights to execute the Deferred Action to Parents of Americans and Lawful Permanent Residents program, which protects certain categories of undocumented immigrants from deportation?
>> Foster v. Chatman — Should a conviction of a black man in a death-penalty case be struck down because the all-white jury was selected through the systematic exclusion of black jurors?