How Justice Scalia's death could affect 4 key cases
(KMSP) - Nine innings in a baseball game. Nine lives for a cat. Nine justices on the Supreme Court. Anything else just doesn’t make sense, right?
“The answer is no. There have been many circumstances in our nation's history when the court has functioned with fewer than nine justices. The number nine isn't anywhere in the Constitution,” said Michael Paulsen, a law professor at the University of St. Thomas School of Law, and the author of “The Constitution: An Introduction.”
“There's nothing magical about nine,” Paulsen told Fox 9. “Over time, the Court has gone from six to seven to nine. For a while, it was at ten. And back to nine.”
With eight justices, the Court is more likely to tie, 4-4, on the hot button issues.
“On a 4-4 vote, they will simply leave the lower court decision affirmed without an opinion by the Supreme Court,” Paulsen said. In other words, a tie means the lower court’s decision stands, with the Supreme Court not applying the decision to the rest of the country.
Here’s a look at how a tie would affect four key cases:
Immigration: U.S. v. Texas
Lower courts blocked the president’s executive order allowing millions of undocumented workers to remain in the U.S. if they met certain guidelines. Because lower courts blocked the president’s actions, their decision would stand: the executive order would not be valid.
Contraception: Zubik v.Burwell
Lower courts are in conflict, meaning some have ruled one way, another ruling the other way, on non-profits challenging the Affordable Care Act’s mandate that they provide contraception coverage, or sign a form opting out. Because different courts have ruled in different ways, a Supreme Court tie would mean the law would be different depending on where you live. Paulsen says this difficult outcome might lead the justices to try another option.
“In that case, I hesitate to make a firm prediction, but I would think the justices might think this would be an appropriate case to put to the next term,” Paulsen said.
Affirmative Action: Fisher v. Texas
A tie at the Supreme Court would likely lead to limitations on affirmative action. That’s because Justice Elena Kagan recused herself from a lawsuit against the University of Texas, likely leading to a 4-3 vote with conservatives winning.
Abortion: Whole Woman’s Health v. Hellerstedt
A Supreme Court tie would likely leave a Texas law in place that requires doctors at abortion clinics to have admitting privileges at local hospitals. The law led some clinics to close. Because the lower court, the 5th Circuit Court of Appeals, upheld the law, a tie would let it stand – but only in Texas.