Eight is [not] Enough, 1116 SCBJ, SC Lawyer, November 2016, #18

AuthorMiller W. Shealy Jr., J.

Eight is [not] Enough1

Vol. 28 Issue 3 Pg. 18

South Carolina BAR Journal

November, 2016

A Review of the 2015-2016 U.S. Supreme Court Term

Miller W. Shealy Jr., J.

The big news this term was undoubtedly the death of Associate Justice Antonin Scalia on February 13, 2016. Justice Scalia’s untimely death overshadows the cases this term. President Obama promptly nominated Judge Merrick Garland of the D.C. Circuit Court of Appeals to replace Justice Scalia. However, the Senate has refused to even consider Judge Garland until after the presidential election.

Republicans and Democrats have been at loggerheads over whether Judge Garland should be confirmed before Election Day. As Republicans control the Senate, it looks like no hearings will be held prior to the election. The Court has been at eight justices since February, and they are evenly divided on many issues: Eight is NOT enough!

Justice Scalia was often one of the five votes forming a conservative majority on the Supreme Court. The five conservative justices (Scalia, Roberts, Alito, Thomas and sometimes Kennedy) often dominated the major social, political and constitutional issues before the Court: abortion, the death penalty, affirmative action, guns, religious liberty, same-sex marriage, the list goes on. Many speculate that Scalia’s departure from the Court presages a new liberal majority that has not held sway on the Court for decades. This time it does seem to be true that the next president may shape the Court for decades to come. In the last several presidential elections we have all heard the drum beat—lawyers are especially sensitive to it, I think—that the “future of the Supreme Court hangs in the balance” or slogans to that effect. It looks like this time it may finally turn out to be true. Clearly, the Court is evenly divided on many major issues. The next president will likely choose at least one and maybe as many as four justices. This is definitely an important election for the future of the Court!

I believe, with many, that the death of Justice Scalia had a significant effect on the decisions this term. It had a profound effect on what would have been the two most important cases of this term, both of which were from the Lone Star State: United States v. Texas2 and Fisher v. University of Texas3.

United States v. Texas was set to be a major immigration case and a Texas style showdown over the scope of presidential power, especially the constitutionality of certain executive orders. The Fifth Circuit Court of Appeals ruled against the Obama administration, holding that it could not shield nearly five million unauthorized immigrants from deportation and allow them to remain in the U.S. The Fifth Circuit upheld a lower court’s injunction against President Obama’s executive orders protecting the immigrants. The 4-4 ruling means that the district court injunction stands, and constitutes a major blow to the Administration. Justice Scalia would surely have sided with those opposing the Administration’s use of executive power to halt deportation. Many thought that the Court was going to deal a blow to executive power by ruling that executive...

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