February at the U.S. Supreme Court

Courthouse Building

Courthouse Building

The death of Justice Antonin Scalia overshadowed everything else at the U.S. Supreme Court last month. The passing of Justice Scalia leaves the Court without its most entertaining voice and with only eight justices for the foreseeable future.

While Congress argues over Scalia’s successor, the prospect of a 4-4 tie hangs over the Court’s most controversial cases, including issues such as abortion, affirmative action, and the ACA’s contraception mandate. Because while Justice Scalia’s loss was significant, the work of the Court must continue.

Clarence Thomas Speaks

While Justice Clarence Thomas may not be able to fill the shoes of his Conservative colleague, he did ask his first question during oral argument in a decade. In fact, Justice Thomas asked nearly ten questions in a discussion with the assistant solicitor general representing the federal government in a Second Amendment case.

Justice Thomas questioned whether a misdemeanor conviction for domestic violence should prevent two Maine men from possessing firearms. “This is a misdemeanor violation. It suspends a constitutional right,” Thomas stated. “Can you give me another area where a misdemeanor violation suspends a constitutional right?”

Thomas famously avoids participating in oral arguments, preferring to allow the lawyers to argue their cases. With regard to the significance of the question in Justice Scalia’s absence, Adam Liptak of The New York Times wrote:

Justice Scalia’s death was a sort of passing of the baton, leaving Justice Thomas as the only member of the court fully committed to the mode of constitutional interpretation known as originalism, which seeks to apply the understanding of those who drafted and ratified the Constitution.

It will be interesting if Justice Thomas becomes more vocal in future cases or more motivated to speak given the significance of the Constitutional question at issue.

Oral Arguments in February

The Court did not issue any opinions in February. However, the justices did hear oral arguments in several key cases. In Utah v. Strieff, the Court addressed whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the initial investigatory stop was later found to be unlawful. The Court also heard oral arguments in another death penalty case. The issues in Williams v. Pennsylvania centered on judicial bias, notably whether the Eighth and Fourteenth Amendments are violated where a state judge declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment as the former prosecutor.

Business interests will be closely watching the Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. The key question in the intellectual property case is when higher damages should be awarded in patent infringement cases.

On Tap for March           

Several potential landmark cases are on the docket for March. Most notably, Justice Scalia’s absence will likely influence the Court’s decision in its first significant abortion case in nearly ten years. The case, Whole Woman’s Health v. Hellerstedt, involves whether abortion restrictions imposes by the State of Texas are legitimate health regulations or simply a means to shutter a large majority of the state’s abortion clinics.

The Court will also consider its third challenge to the Affordable Care Act. The issue this time around is whether the statute’s contraceptive-coverage mandate and its “accommodation,” which requires religiously affiliated nonprofit corporations that object to birth control coverage to notify their insurance company, third-party benefits administrator, or federal government about their objection, violate the Religious Freedom Restoration Act. The case is also predicted to divide the Court among liberals and conservatives and could result in a 4-4 tie.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.