Zubik v. Burwell, a case before the Supreme Court of the United States, will help define how religiously affiliated nonprofits are viewed in the aftermath of the Affordable Care Act. The court might set the precedent without longtime Associate Justice Antonin Scalia, who died on Saturday at the age of 79
Scalia, the outspoken, right-leaning justice succumbed to what is being called natural causes while on a leisure trip at a Texas ranch. His death leaves the nation’s highest court with the possibility of a 4-4 split on hotly contest issues. The aftermath of Scalia’s death, and potential reverberations in the months ahead, has legal organizations adjusting on the fly and working to inform the future.
The American Center for Law & Justice (ACLJ) in Washington, D.C. recently filed an amicus brief requesting that the Supreme Court overturn lower court rulings requiring Little Sisters of the Poor and other faith-based organization to obey an abortion pill mandate or be subject to fines. The case, which is part of Zubik v. Burwell, will help inform the balance between religious liberties and federal health provisions for organizations in a similar fashion as the infamous Burwell v. Hobby Lobby, Inc. case did for businesses, Clark said. The Supreme Court voted in favor of the businesses by a 5-4 margin in the 2014 case.
Scalia’s past votes and opinions would have seemed to make him likely to have sided with the nonprofits, according to Clark. Should the eventual outcome result in a split 4-4 vote, the lower courts’ rulings will stand. Nonprofits lost in the lower courts in all seven of the cases that make up Zubik v. Burwell, Clark said.
A second prominent case scheduled to be heard by the court could impact an executive action that would prevent the deportation of about five million undocumented immigrants and on the organizations that help them. Nonprofits have been gearing up naturalization and legal service efforts in anticipation of the expansion of Deferred Action for Childhood Arrivals (DACA plus) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policies, according to Lynn Tramonte, deputy director of America’s Voice in Washington, D.C. Workshops have been held across the country to help potentially eligible immigrants.
Scalia’s death has limited impact on the case, according to Tramonte, as America’s Voice did not anticipate receiving Scalia’s vote. The chances of a 4-4 tie, however, have increased. Past precedent for similar executive actions, court decisions and legal analysis makes Tramonte confident that the necessary five votes will still be earned.
The Supreme Court has yet to make any indication how cases will proceed and it is possible that Scalia’s death could cause a delay in proceedings. An ACLJ petition to wait for the next presidential administration before nominating Scalia’s successor has garnered more than 11,000 signatures. Clark, who called Scalia a “conservative icon,” said that there has been a long-standing historical precedent against nominating justices in the final year of a presidential administration. Justice Anthony Kennedy, who has been noted as an exception to this rule, was confirmed in 1988, but first appointed in 1987.
Clark also cited a potential shift in court’s makeup of conservative, moderate and liberal justices as reason for a delay. “When you are looking at a potential shift, you think ‘Should the American people have a voice in who the next president is who then selects the next justice,” Clark said.
Leaders at Public Citizen in Washington, D.C. is of the opposite opinion. Allison Zieve, director of Public Citizen Litigation Group, said that, with more than 300 days remaining in President Barack Obama’s term, Obama should move forward with making a nomination and the Senate should do their duty in the confirmation process.
“The qualifications for a Supreme Court justice are no different than they will be next year or they were last year,” Zieve said. “The court functions better with a full complement of justices, particularly an odd number of justices.”
Zieve doesn’t necessarily see that happening, however. The court could choose to wait on some cases until there are nine standing members, but should the Senate choose to delay confirmation until the next presidential administration, the process would likely end in April 2017, just before the court ends hearing arguments. Some cases placed on hold in the meantime could have to wait one or two terms to be heard. The court might also select potential cases differently, Zieve said, especially if a 4-4 split is likely.
Zieve declined to discuss specific cases, but said that any change in the Supreme Court has an impact on the organization’s work. “I expect that, whoever replaces him, some decisions over the next several years will be different than they would have been, whether it’s President Obama, President Clinton, President Trump, President Kasich, or whoever.”
Kyle Barry, director of justice programs at Alliance for Justice in Washington, D.C., concurred with Zieve. Barry anticipates that the court will likely continue with its previously planned schedule, but might see delays in certain orders and conferences. There is still time to make a nomination and confirmation of a justice during Obama’s term. Since 1975, the average time from nomination to confirmation has been 67 days, according to Barry.
“Elections have consequences, and in 2012 the American people elected President Obama to a second four-year term that still has more than 300 days remaining,” Barry said in an email. “The president should nominate and the Senate should confirm a successor this year so the Supreme Court doesn’t have to go two terms with a missing justice. The American people have spoken and the Republicans’ initial promises to delay confirmation is simply unconscionable.”