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What happens if there’s a tie? Questions and answers on what’s ahead for the Supreme Court

The Supreme Court abhors even numbers. But that’s just what the court will have to deal with, perhaps for many months, after the death of Justice Antonin Scalia. Eight justices will decide what to do, creating the prospect of 4-4 ties.

Here are some questions and answers about the prospects of filling the vacancy left by the death of its conservative icon and longest-serving justice and its effect on the court:

Q: What happens when President Barack Obama makes a nomination?

Any nominee would first face the Senate Judiciary Committee, which would hold confirmation hearings and then vote on whether to send the selection to the full Senate. An Obama nominee would have a hard time even getting a favorable vote to get out of the committee, where Republicans hold an 11-9 edge. Some of the fiercest foes of the president serve on the panel, including GOP presidential candidate Ted Cruz of Texas, Jeff Sessions of Alabama, David Vitter of Louisiana and Mike Lee of Utah. The committee chairman, Sen. Chuck Grassley, R-Iowa, said within hours of Scalia’s death on Feb. 13 that Obama’s successor should select the next justice.

Q: What if the nominee did emerge from the committee?

The decision then rests with the full Senate, where Republicans are in the majority 54-46 and Majority Leader Mitch McConnell, R-Ky., wasted no time making clear that “this vacancy should not be filled until we have a new president.”

Further complicating the prospects for approval is Cruz, who has vowed to filibuster any Obama nominee. That means it would take 60 votes to break a GOP filibuster.

Obama’s allies would need 14 Republicans to break ranks and move ahead on the nomination.

The 2012 and 2014 elections left just a handful of moderate Republicans who might vote for an Obama pick. Of those still in the Senate, only Susan Collins, R-Maine, and Lindsey Graham, R-S.C., voted for Obama’s two other Supreme Court choices, Elena Kagan and Sonia Sotomayor.

Q. What happens to cases in which Scalia cast a vote or drafted an opinion, but no decision has been publicly announced?

A. It may sound harsh, but Scalia’s votes and draft opinions in pending cases no longer matter. Veteran Supreme Court lawyer Roy Englert says that “the vote of a deceased justice does not count.” Nothing is final at the court until it is released publicly and, while it is rare, justices have flipped their votes and the outcomes in some cases.

Q. What happens if there is a tie?

A. The justices have two options. They can vote to hear the case a second time when a new colleague joins them or they can hand down a one-sentence opinion that upholds the result reached in the lower court without setting a nationwide rule. When confirmation of a new justice is expected to happen quickly, re-argument is more likely. In this political environment, the vacancy could last into 2017.

Q. Why doesn’t the court like tie votes?

A. A major function of the Supreme Court is to resolve disputes among lower courts and establish legal precedents for the entire country. Tie votes frustrate those goals and they essentially waste the court’s time.

Q. How does Scalia’s death affect specific cases?

A. It deprives conservatives of a key vote and probably will derail some anticipated conservative victories in major Supreme Court cases, including one in which labor unions appeared headed for a big defeat.

Next month’s Supreme Court clash over contraceptives, religious liberty and President Barack Obama’s health care law also now seems more likely to favor the Obama administration.

Q. What other pending cases could be affected?

A. A challenge to the way governments have drawn electoral districts for 50 years now appears to have little chance of finding a court majority.

The court heard arguments in December in a case from Texas on the meaning of the principle of “one person, one vote,” which the court has said requires that political districts be roughly equal in population.

But it has left open the question of whether states must count all residents, including noncitizens and children, or only eligible voters in drawing district lines.

Q. What will happen in the upcoming case over the Obama health care overhaul?

A. The Supreme Court will be looking at the health care law for the fourth time since its 2010 enactment. This time, the focus is on the arrangement the Obama administration worked out to spare faith-based hospitals, colleges and charities from paying for contraceptives for women covered under their health plans, while still ensuring that those women can obtain birth control at no extra cost as the law requires.

The faith-based groups argue that the accommodation still makes them complicit in providing contraception to which they have religious objections.

A tie vote here would sow rather than alleviate confusion because the appellate courts that have looked at the issue have not all come out the same way.

That prospect suggests that Justice Anthony Kennedy will join the court’s four liberal justices to uphold the arrangement, Supreme Court lawyer Thomas Goldstein said.

Q. Are there cases in which a tie would be a loss for the Obama administration?

A. The administration’s plan to shield up to 5 million people from deportation was struck down by lower courts and a Supreme Court tie would leave that ruling in place.

On abortion, the administration is backing a challenge to Texas’ strict new regulations for abortion clinics.

A federal appeals court upheld the regulations.

Q: Have there been other instances when a Supreme Court justice was nominated and confirmed in an election year?

A: More than a dozen Supreme Court justices have been confirmed during the final year of a president’s term in office, but nearly all of those took place more than a century ago when the process was far less politically polarized.

Republican leaders in the Senate have argued that filling the vacancy left after Scalia’s death should wait until after the next president is elected.

Obama insists he plans to fulfill his duties under the Constitution to nominate a new justice before his term ends.

Most recently, Kennedy was confirmed by a 97-0 vote on Feb. 3, 1988, an election year. But Kennedy had been nominated by President Ronald Reagan in November 1987. And he was actually Reagan’s third choice and far less reliably conservative than the first two picks. The Senate rejected the nomination of Robert Bork and Douglas Ginsburg withdrew over reports that he used marijuana while a Harvard law professor.

Before that, it was 1940 when President Franklin D. Roosevelt nominated Frank Murphy in an election year, and he was confirmed in just 12 days on Jan. 16, 1940.

Q: When was the last time the Senate refused to confirm a Supreme Court nomination made during a president’s final year in office?

A: President Lyndon Johnson nominated two men for Supreme Court seats in 1968, the last year of his presidency. He sought to elevate Justice Abe Fortas to replace Earl Warren as chief justice, and he nominated Homer Thornberry _ a federal appellate judge from Texas — to fill the expected vacant seat.

But the Senate blocked a vote on Fortas over strong opposition to the move, and Fortas later withdrew his nomination. Without a vacancy, Thornberry’s nomination also never got a Senate vote.

Warren eventually retired in 1969, and President Richard Nixon named Warren Burger to replace him.

Supreme Court lineup fit for an election year

The Supreme Court’s lineup of new cases is fit for an election year.

Affirmative action, abortion and another look at the Obama health care law all are before the court, and they could well be joined by immigration, giving the justices a run of cases that reads like a campaign platform.

Also coming; disputes involving public-sector labor unions, the death penalty and the way electoral districts are drawn.

Decisions in these high-profile cases almost certainly will split the court along ideological lines, mirroring the country’s stark partisan split. What’s more, the most contentious issues won’t be resolved until late June, barely four months before the 2016 presidential election.

What started as a somewhat sleepy term – especially following major decisions last June on health care and same-sex marriage – has become much more interesting, says University of Pennsylvania law dean Theodore Ruger.

“This is a court that remains very assertive in its role in declaring what the law is,” Ruger said.

The accumulation of wrenching social issues and pointed policy disputes at the Supreme Court at this moment is mostly a matter of chance. A legal fight over the regulation of abortion clinics in Texas has been underway for two and a half years. President Barack Obama’s plan to shield from deportation millions of immigrants who are living in the country illegally was rolled out a year ago and almost immediately challenged in court. Faith-based groups that say they are forced to be complicit in providing objectionable birth control to women covered under their health plans have been challenging the Obama administration for more than three years.

It is still is possible the immigration dispute will not be heard until next fall, if at all.

Now that the cases are at the marble courthouse atop Capitol Hill, the justices’ decisions could feed campaign rhetoric that already has been heated on abortion and immigration, to name just two issues.

In June 2012, Chief Justice John Roberts provided the decisive vote that saved Obama’s health care overhaul in the midst of the president’s campaign for re-election.

A short time later, Republican candidate Mitt Romney proclaimed that as president he would do what the high court failed to do that June – get rid of the health care law. Obama won re-election, and the law survived.

Ruger said the chief justice wrote a nuanced opinion that appeared to show some sensitivity to the looming election.

“I think Roberts recognized this was going to be an issue in front of the voters,” Ruger said. The electorate ultimately would decide the health care law’s fate, he said.

Court decisions close to an election, especially when they produce big changes in the law, also can increase attention paid to those issues.

This is part of what Texas A&M University political scientist Joseph Ura called the court’s agenda-setting effect. Ura pointed to Brown v. Board of Education’s outlawing of racial segregation in public schools and Lawrence v. Texas’ ban on state anti-sodomy laws as examples of past decisions that altered “the existing arrangement of material or symbolic benefits in our political system.” Researchers found that those decisions “led to a large, sustained increase in the media’s attention” to those issues, Ura said.

Last term’s big rulings on health care and same-sex marriage already have prompted criticism of the court, and of Roberts and Justice Anthony Kennedy in particular, from several Republican presidential candidates. Sen. Ted Cruz of Texas, for example, has said that putting Roberts on the court was a mistake, even though Cruz endorsed his nomination in 2005.

The court’s 2010 decision in Citizens United that led to a flood of what critics call “dark money” in political campaigns remains controversial, and Democratic candidates have pledged to try to undo it.

The Roe v. Wade decision in 1973 that established a woman’s right to an abortion produced a backlash that eventually showed up in election returns, said Sara Benesh, a political scientist at the University of Wisconsin-Milwaukee. “A lot of scholars say (President Ronald) Reagan got elected because of Roe v. Wade. Pro-life forces really got him moving in his campaign,” Benesh said.

But there is little evidence that the court itself will become an issue in the campaign, except perhaps on the margins, she said.

The court and the justices are little known to the public. “It seems to me a long, drawn-out relationship between any decision the court might make and any decision an individual might make in the voting booth,” Benesh said.

Every four years, interest groups across the political spectrum try to make that connection for voters. Elections matter, they say, because the winner may get to choose justices who will serve for the next quarter century or longer.

Indeed, with four justices in their late 70s or early 80s, and the court so closely and fiercely divided, any appointment could dramatically change the court’s direction.

Divided Supreme Court upholds campaign limits for judicial candidates

A divided Supreme Court ruled this week that states can ban judicial candidates from personally asking for campaign contributions. The justices’ 5-4 ruling means that restrictions on soliciting campaign cash can remain in place in 30 states that elect state and local judges. In all, 39 states hold elections for judges and some allow personal appeals for donations.

Chief Justice John Roberts, in a rare break with fellow conservatives, said in his majority opinion that laws barring judicial candidates from personally asking for campaign cash do not run afoul of First Amendment free speech rights. He said the state has a compelling interest “in preserving public confidence in the integrity of the judiciary.”

“Judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote. “A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.”

The court’s four liberal justices joined Roberts in the majority.

In a sharp dissent, Justice Antonin Scalia called the Florida rule a “wildly disproportionate restriction upon speech” that should be struck down under the First Amendment.

Roberts, who has written other major First Amendment decisions protecting speech rights, might at first glance be a surprising fifth vote to uphold the limits on judicial fundraising. He also previously sided with conservatives in the court’s 2010 Citizens United decision that freed corporations and labor unions from some limits on campaign spending.

But this case could be seen to bring out his role as the leader of the judicial branch, even if he and other appointed federal judges are not affected by the case. Roberts at several points drew a distinction between candidates for judgeships and other offices. The ruling took note of concerns that lawyers, in particular, might have a hard time refusing to contribute when a judge personally asks for campaign money.

Scalia noted in his dissent that the high court in recent years has used the First Amendment to protect depictions of animal torture, sale of violent video games to children and people who lied about having won military medals.

“It’s no great mystery what is going on here,” Scalia wrote. “The judges of this court … evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is – but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers.”

In a separate dissent, Justice Anthony Kennedy said he wanted to “underscore the irony in the court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue.”

The case of Lanell Williams-Yulee of Tampa, Florida, arose after she signed a mass mailing asking for money for her campaign for a local judgeship and posted the letter on her website. The appeal didn’t bring in a penny, but Williams-Yulee received a public reprimand for violating a Florida Bar rule that bans candidates for elected judgeships from personally soliciting donations.

Lawyers for Williams-Yulee had argued that the rule has a chilling effect on political speech and does nothing to prevent a candidate’s campaign committee from requesting contributions.

Lower courts have been split on the issue in the Florida case.

The justices had previously struck down limits on what judicial candidates can say during campaigns. In 2002, the court struck down rules that were aimed at fostering impartiality among judges and barred candidates for elected judgeships from speaking out on controversial issues.

But in 2009, the court held in a case from West Virginia that elected judges could be forced to step aside from ruling on cases when large campaign contributions from interested parties create the appearance of bias. Roberts dissented in that case.

The Campaign Legal Center, a campaign finance reform advocacy group, praised the decision, but said it was disappointed that “what the court rightly finds untenable in the judicial context – responsiveness to campaign donors – it would tolerate for legislative and executive candidates.”

The case is Williams-Yulee v. Florida Bar, 13-1499.

On the record …

• “The court today has upheld the ability of states to safeguard the integrity of their courts by putting reasonable limits on fundraising by judges and candidates for judicial office,” said Common Cause president Miles Rapoport. “The plaintiffs in this case apparently saw no problem with permitting judges to make direct appeals for money to lawyers and litigants. It is difficult to imagine a more direct invitation to corruption. We’re gratified that the court’s majority recognized the case as an attack on judicial integrity and was unpersuaded by the plaintiffs’ specious First Amendment arguments.”

• “Tthe Supreme Court recognized the paramount importance of protecting the integrity of our courts,” said Matthew Menendez, counsel at the Brennan Center for Justice at NYU School of Law. “At a time of rising spending in judicial elections, rules that preserve the public’s confidence in the judiciary are more important than ever. As the court found, campaign contributions can create an appearance and risk of favoritism. This decision allows states to protect the fairness of our courts.”

•  Eric Lesh, fair courts project manager at Lambda Legal, said, “We are delighted at the decision from the Supreme Court. As the country prepares for another election year, this rule and others like it are critically important to keeping courts fair and making sure that justice cannot be bought. This flood of money has dramatically altered the politics of judicial races, blurring the line that separates justice from politics. The stakes in this case are high with our due process rights at risk. Judges have a responsibility to render decisions based on the law and a firm commitment to the Constitution’s core principles of equality and fairness.”

A closer look at key cases before the Supreme Court

A look at some of the noteworthy cases the Supreme Court will hear this term, which begins Monday:

-Mistaken traffic stop: A broken brake light led a North Carolina police officer to pull over a car in which cocaine was later found. Turns out, the state requires only one functioning brake light. The court is weighing a case about whether a defendant’s constitutional protection against unreasonable searches was violated because of the officer’s mistaken understanding of the law.

-Prison beards: An Arkansas inmate is challenging a prison policy that prevents him from growing a short beard in accordance with his Muslim religious beliefs. Prison officials say the policy prevents inmates from concealing contraband or quickly changing their appearance in an escape.

-Teeth whitening: The North Carolina Board of Dental Examiners is challenging a Federal Trade Commission order that said the dentist-filled board is trying to kill off competition from day spas and tanning booths that offer teeth-whitening.

-Dishonest juror: Claims that a juror’s comments during trial deliberations over a South Dakota traffic accident raise questions about her impartiality and possibly could result in a new trial.

-Born in Jerusalem: The case of an American born in Jerusalem who wants his passport to list his birthplace as Israel underlies a major dispute between Congress and the president, with Middle Eastern politics as the backdrop. The United States has never recognized any nation’s sovereignty over Jerusalem, believing the city’s status should be resolved in peace negotiations. The administration says a 2002 law passed by Congress allowing Israel to be listed as the birthplace of Jerusalem-born Americans would in essence be seen as a U.S. endorsement of Israeli control of the city.

-Alabama redistricting: Democrats and black lawmakers contend that Republican leaders in Alabama drew a new legislative map that illegally packed black voters into too few voting districts to limit minority political power. Republicans say they complied with the law by keeping the same number of districts in which black voters could elect candidates of their choice.

– Facebook threats: A Pennsylvania man challenges his conviction for making threats on Facebook. He says his online rants about killing his estranged wife, shooting up a school and slitting an FBI agent’s throat were simply rap lyrics, and that he didn’t mean to threaten anyone.

– Pregnancy discrimination: A United Parcel Service employee says the company failed to accommodate her pregnancy when it refused to give her light-duty work. But UPS contends its policies are “pregnancy-neutral,” allowing light-duty assignments only in cases where employees are injured on the job or have certain medical conditions.

-Housing discrimination: For the third time, the court has agreed to hear a challenge from Texas to an important tool the government is increasingly using to fight discrimination in housing. Two earlier cases settled before the justices could weigh in on the legality of determining discrimination from the results of a policy that disproportionately affects minorities, rather than by showing any intent to discriminate.

-Religious discrimination: Retailer Abercrombie and Fitch is defending its denial of a job to a woman wearing a Muslim headscarf by arguing that she did not say during her interview that she wears the hijab for religious reasons.

Cases the justices could decide to hear before the term ends in late June:

-Gay marriage: Both sides want the justices to settle the question of whether same-sex couples have the same right to marry as heterosexuals under the Constitution. A court ruling in favor of same-sex marriage would grant marriage rights to same-sex couples in all 50 states, up from 19 states and the District of Columbia. A decision in favor of state marriage bans would allow states to continue setting the rules on whether to allow same-sex couples to wed.

-Abortion: Several states have passed laws in recent years aimed at limiting abortion by imposing hospital admitting privilege requirements on doctors who perform abortions, forcing abortion clinic facilities to meet tougher standards and preventing doctors from prescribing pills for medical abortions later in a pregnancy and at a lower dose. The court could take one or more cases that are winding through the courts.

-Voting disputes: Identification requirements and limits on early voting are among state voting laws that could make their way to the Supreme Court this term. The court already has jumped preliminarily into a case over early voting in Ohio and seems likely to want a full-blown review. But a decision on hearing that case could come late enough in the term to push back the argument and decision to the following term that begins a year from now.

-Contraception: The next fight over the new health care law’s requirement that contraception be offered to women among a range of preventive services at no extra cost concerns the responsibilities of religious not-for-profit universities, hospitals and other institutions. The Obama administration already allows those organizations to shift responsibility for coverage to their insurers, but the groups say that so-called accommodation still is a burden on their religious consciences. In June, the justices said family-owned corporations with religious objections do not have to pay for contraceptives for women covered under their health plans.

-Health care subsidies: Legal challenges to the health care law continue in several states that would drastically reduce the number of Americans eligible for subsidies to make health insurance affordable. One appeal of a court ruling denying a challenge to the subsidies already is pending at the Supreme Court, although the pace of the other cases suggests the justices are more likely to wait, if they even are willing to undertake another high-stakes fight over the health care law.

-Affirmative action: The court could get another crack at the University of Texas admissions policy that takes race into account among many factors in filling some seats in entering freshmen classes. Lower courts upheld the Texas policy following a Supreme Court decision in 2013 that ordered a new review. The case currently is being appealed to the full 5th U.S. Circuit Court of Appeals in New Orleans.

Supreme Court’s first cases for October involve affirmative action, human rights, drug-sniffing dogs

The Supreme Court term now getting under way holds the prospect for major rulings about affirmative action, gay marriage and voting rights.

A look at cases the court already has agreed to hear and other top cases in the pipeline:

RACIAL PREFERENCES – In Fisher v. University of Texas, to be argued Oct. 10, the court will weigh Texas’ limited use of race to help fill out its incoming classes. The outcome could result in a major cutback in the use of racial preferences at the nation’s colleges.

ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES – The justices will consider whether American courts may be used by foreign victims to sue over human rights violations abroad. The case of Kiobel v. Royal Dutch Petroleum, to be argued on Monday, concerns claims that the oil giant Shell was complicit in atrocities committed by the Nigerian government against its citizens in the oil-rich Niger delta.

DRUG-SNIFFING DOGS – Two disputes involving drug-sniffing dogs will be heard by the court on Halloween. In one, the question is whether a dog brought to the front door of a home to sniff for marijuana amounts to a search. In the other, the court will consider a dog’s reliability and qualifications as a drug-sniffing animal in a case involving a traffic stop and a warrantless search that found the ingredients for making methamphetamines in a pickup truck.

FIGHTING TERRORISM – The government is trying to shut down a constitutional challenge to a law that lets the United States eavesdrop on overseas communications. Lawyers, journalists and human rights advocates filed a lawsuit that objected to the latest version of the Foreign Intelligence Surveillance Act. The issue at the high court, to be argued Oct. 29, is whether the law’s challengers are entitled to make their case in federal court.

The following issues probably will be heard this term:

GAY MARRIAGE – The justices are expected to take up gay marriage in at least one of the many appeals pending at the high court. Several lower federal courts have struck down as unconstitutional a provision of the 1996 Defense of Marriage Act that denies federal benefits, including favorable tax treatment and health benefits, among many others, to legally married same-sex couples. The court almost always has the last word when federal laws are struck down. A separate appeal involves California’s ban on gay marriage, ruled unconstitutional by federal courts.

VOTING RIGHTS ACT – Several appeals also ask the court to invalidate a cornerstone of civil rights era legislation, a provision of the Voting Rights Act that requires all or parts of 16 states, most in the South and all with a history of past discrimination, to get approval from the Justice Department or the federal court in Washington before instituting any changes affecting elections and voting. Some justices expressed skepticism about the need for this measure in a 2009 decision that sidestepped a definitive ruling.

Senators sponsor bill to ban bias against LGBT jurors

A trio of U.S. senators has introduced federal legislation to ban bias based on sexual orientation and gender identity in jury selection.

U.S. Sens. Jeanne Shaheen, D-New Hampshire, Susan Collins, R-New Hampshire and Sheldon Whitehouse, D-Rhode Island, are the sponsors.

The National LGBT Bar Assocation worked with Shaheen’s office on drafting the legislation, called the Jury ACCESS – Access for Capable Citizens and Equality in Service Selection – Act.

“Extending federal jury non-discrimination policy to include sexual orientation and gender identity is truly a step forward for the LGBT movement and a notable achievement for the entire LGBT community. We applaud the senators’ efforts for bringing equality to the forefront of the judicial process.” D’Arcy Kemnitz, the association’s executive director said in a statement.

The federal non-discrimination policy was first enacted in Batson v. Kentucky, when the U.S. Supreme Court ruled that peremptory challenges could not be used to remove a juror based solely on their race. The provisions were extended to a juror’s sex in Georgia v. McCollum.

Only California law prohibits discrimination in jury selection based on sexual orientation. In the trigger case of People v. Garcia, the prosecution used its peremptory strikes to remove two lesbian jurors. The defense objected, stating that the prosecution dismissed the jurors simply because of their sexual orientation. The judge initially denied the defense’s motion, but on appeal, the court found that the “exclusion of lesbians and gay men on the basis of group bias violates the California Constitution.” The Court of Appeal also ruled that gay men and lesbians constitute a cognizable group and should therefore be included in non-discrimination policies. 

The Jury ACCESS Act would amend the federal statute to include sexual orientation and gender identity. Striking jurors on the basis of their sexual orientation or gender identity then would be prohibited under federal law for the first time.