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U.S. Supreme Court Changes Dramatically Overnight

Posted By Brian Hickman, Director of Government Affairs, Tuesday, February 16, 2016

The unexpected and untimely passing of Associate Justice Antonin Scalia will create a ripple effect on our nation’s government in several ways.

First, the make-up of the Court will take on a new look. With Scalia, the U.S. Supreme Court leaned conservative, with a general voting bloc of 5 conservative justices to 4 liberal justices. Without Scalia, and arguably without the prominent voice of the conservative bloc (Scalia was known for writing colorful opinions on landmark cases), the conservatives are now even at best with the liberal bloc. I say even at best because conservative Justice Anthony Kennedy often takes a more liberal stance on cases. You could state that the liberal bloc would have the upper hand in several upcoming cases to be determined by the Supreme Court because of this tendency.

Secondly, the new look Court does and will have several major policy initiatives before it. Cases pertaining to voting rights, affirmative action, and labor unions were already heard. The Court is scheduled to hear cases regarding abortion, contraception coverage, President Barack Obama’s health care plan and immigration policies as well this session (which ends this June).

For the oil and gas industry, litigation on a number of issues continues to work their way through various courts which may ultimately end up in the U.S. Supreme Court. Issues such as challenges to the expansion of “waters of the United States” via rule for the Clean Water Act, challenges to emissions standards under the Clean Air Act, and additional litigation from environmental interests challenging species protection plans under the Endangered Species Act are all currently being litigated in lower courts.

Finally, this temporary vacancy in the Supreme Court could put a higher standard on lower court cases. Procedurally, if a case being heard in the US Supreme Court were to end in a 4-4 decision, then the decision made in the lower court would hold legal precedent for that jurisdiction. For example, if a decision of the Sixth Circuit Court of Appeals was appealed to the U.S. Supreme Court and the Justices ended up with a 4-4 decision, then that decision would be the legal precedent in the 4 states within the Sixth Circuit, including Ohio.   

The focus of this blog has only been on what will happen during the remainder of the current session of the Supreme Court. This doesn’t consider President Obama’s ability to appoint another Justice to the Supreme Court - which he has declared his intention to do. If he attempts to do so, the Republican controlled U.S. Senate (who must approve such an appointment) has already stated they would block it. Their reasoning is that a new President will be elected and that person (along with the American people) should have a say in the next justice. If this appointment lingers, it is expected to set a new record for the modern era, which was a 363 day vacancy due to a resignation in May, 1969. This unfortunately tragedy will add even more weight and flavor to the ongoing Presidential debates and election this year.   

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