On the docket

Supreme Court Justice’s death leaves women hanging in the balance

With the unexpected death of Supreme Court Justice and conservative stalwart Antonin Scalia, the future of a slew of cases affecting women have become unclear — and left many wondering if a woman will take his place

Pro-abortion activists gather in front of the US Supreme Court in Washington, DC, on January 22, 2016. (NICHOLAS KAMM/AFP/Getty Images)

Millions of American women already had their hopes riding on the Supreme Court ahead of next month’s arguments over access to abortion in Texas, a case that could determine whether states have the right to restrict how and where abortion clinics can operate and could limit millions of women’s abilities to get safe, legal abortions.

The case was considered a dicey one, with the court’s four liberal justices expected to side with abortion rights advocates and the court’s four conservative justices expected to side with Texas, leaving the outcome to a swing vote.

But on Saturday, with the unexpected death of Supreme Court Justice and conservative stalwart Antonin Scalia, the case’s outcome is not only unclear, it is nearly incalculable, according to legal analysts.

The Texas case, Women’s Whole Health v Hellersted, is just one of potentially dozens of cases with far-reaching implications for women that will be affected by Scalia’s sudden absence. The future of abortion, affirmative action, contraception, and a host of other hot-button women’s issues are now up for grabs as Republicans and Democrats jockey for control over who will replace Scalia on the court and the remaining eight justices decide how to proceed without Scalia this term.

“Predictions are foolhardy, but I think the court will decide with each of the very important cases on its docket whether, in light of Justice Scalia’s death and absence, it is still wise to consider the case this term or not, or whether it should have full bench for consideration,” said Marcia Greenberger, president of the National Women’s Law Center.

Because the Supreme Court only takes up cases of extreme importance to the nation, the justices will likely keep in mind how important any of their decisions they make this term will be without Scalia’s presence, she said. That will likely affect whether they choose to decide a case or hold off on it until a replacement is named.

“Every single term there are cases the Supreme Court needs to resolve, and that only underscores the need for having a full complement of nine justices on the bench,” she said.

If the court proceeds with Women’s Health with only eight justices, many predict the case would end in a tie of 4-4, with the liberal justices voting against Texas and the conservative judges siding with Texas. In that case, the ruling of the lower court, the Fifth Circuit Court of Appeals, would stand, but it would not resolve the case, according to Russell Wheeler, a fellow in governance at the Brookings Institute.

In that case, another, similar case could wind its way back up to the court in the future and this one would, he said, “be for naught.” A decision by a clear majority, on the other hand, would set a precedent for other states to follow on the whether it is legal to restrict abortion the way that Texas did. “There’s a strong likelihood the court would order re-argument of the case when the court is back up to nine justices,” Wheeler said.

The court is also scheduled to hear arguments and render decisions on other vital cases this term, including a case brought by a group of nuns, The Little Sisters of the Poor, and other religious organizations, over the Affordable Care Act’s mandate that all organizations provide contraception coverage for employees.

The nuns argue that the current law, which requires them to notify the government of their religious objection to providing contraception, still triggers a process by which women receive contraception paid for by the government, and therefore is still morally wrong. Lower courts have so far sided with the government, but it is unclear what a split court would decide.

The court will also hear cases on affirmative action and immigration that will indirectly affect women, according to Wheeler.

The eight remaining Justices on the Supreme Court will together decide how to handle these and all of the other cases that are on their docket this spring with regard to whether they will hear arguments, issue rulings, or wait for a new justice. But what is outside of their decision-making process is who their new colleague will be.

What are the chances a woman will replace Scalia?

President Obama vowed on Tuesday to nominate a replacement for Scalia who is “indisputably qualified for the seat,” while the Republican Senate leadership vowed to delay any vote on a nominee until a new President takes office in 2017. Analysts say it’s unclear at this point what will happen. Obama could nominate someone highly-qualified and moderate whom Republicans agree to approve, or Republicans could stonewall until after the election, at which point a new Democratic or Republican president would nominate his or her own choices for the new justice.

Depending on the makeup of the Senate at that point, that could result in a liberal, moderate, or conservative Supreme Court justice, which will have a dramatic effect on how US laws are shaped for the coming decades. “I hope there will be a consideration of [Obama’s] nominee and that it will be a fair and thorough consideration,” Greenberger said. “And based on past nominations by this president I expect that he will nominate a superb individual.”

People For the American Way activists rally outside of the Supreme Court, calling on Congress to give fair consideration to President Obama's nominee to the Supreme Court of the United States on February 15, 2016 in Washington, DC. (Larry French/Getty Images for People For The American Way)

People For the American Way activists rally outside of the Supreme Court, calling on Congress to give fair consideration to President Obama’s nominee to the Supreme Court of the United States on February 15, 2016 in Washington, DC. (Larry French/Getty Images for People For The American Way)

Many of the top names being floated this week are female judges, attorneys, and politicians. And while three of the Court’s current Justices are women (Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor), Ginsberg, when asked by students when she thinks there will be “enough” women on the Court, said recently, “when there are nine.”

“What is so gratifying to me is that whatever the criteria that has been suggested, there are just superb women who fit the bill. There are a range of women with excellent legal credentials, with diversity in experience and background and perception,” Greenberger said. “I hope that president will nominate somebody that will continue to diversify the bench by gender, ethnicity, and experience.

On Sunday, Supreme Court analyst Tom Goldstein, one of the experts at SCOTUSBlog, said that Attorney General Loretta Lynch is a “very serious possibility” for the nomination. According to Goldstein, her history as a career prosecutor, her recent vetting by Congress for the position of AG, and the fact that she is an African American woman would make it difficult for Republicans to block her nomination without hurting their own reputations with the general public.

“I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process.  Either eventuality would motivate both black and women voters,” he wrote.

Obama and his team may realize that nominating Lynch could force the Republicans’ hand on the issue, Wheeler added.

“Let’s say there’s this eminently qualified African America woman, and it’s like pulling teeth to get her confirmed, that may be convincing during an election,” Wheeler said, noting that it may be especially effective in purple states with Senate seats up for election in November, like Ohio. “They want to get the seat filled with a competent candidate, and if along the way they’re able to roil the prospects of the Republicans [that’s what they’ll do].”

But Obama could choose from a slew of other options as well. Though there is much talk about frontrunner Sri Srinivasan, a male D.C. District Court judge Obama nominated and who was approved 97-0 in the Senate, there are additional female candidates as well.

One is Jane Kelly, a classmate of Obama’s from Harvard Law School who was recently confirmed to the Eighth Circuit Court and has publicly received support from fellow Iowan and Republican Senator Charles Grassley, who heads the Senate Judiciary Committee. It would be hard for Grassley to vote against her confirmation to the bench, Wheeler said.

Kamila Harris is the high-profile Attorney General of California who Goldstein said would be a top pick for the Court except for the fact that she would likely turn it down in pursuit of her own political ambitions as a Senator, or perhaps as President.

If Republicans hold true to their word, however, and refuse to hold a vote on any of Obama’s nominees, it could lead to a Republican President getting to nominate someone, if the election goes their way in November. In that case, according to Wheeler, one woman’s name is at the top of the party’s list: Diane Sykes, a 7th Circuit Court of Appeals Judge who has already been named by many Republican Presidential candidates, including frontrunner Donald Trump.

“I suspect they might [nominate a woman] because they got a flack when Sandra Day O’Connor left the court and there were all these female names bandied about and nevertheless Bush appointed Alito,” Wheeler said.

Obama has not set a timeline for when he will announce his nomination to replace Scalia, and the Supreme Court has not yet said how it will proceed without him. But in the meantime, many in Washington, and in courts around the country, will be assessing the future of the court, and its impact on women.


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