Will Justice Scalia’s Death Affect the Outcome in Evenwel? I’m Skeptical

I’ve seen many people suggest this, including the NYT’s Adam Liptak:

The clearest impact is likely to be in Friedrichs v. California Teachers Association, No. 14-915, on the power of public unions. When the case was argued in January, it seemed clear that the court was headed toward a closely divided decision in which the conservative majority would rule that workers who chose not to join public unions could not be made to pay for the union’s collective bargaining work.

The likely outcome now is a 4-to-4 split that would leave in place a decision from the federal appeals court in California upholding the mandatory payments. That would be a major victory for the liberal justices and public unions.

A similar dynamic may be in play in Evenwel v. Abbott, No. 14-940, an important voting rights case. It concerns the meaning of “one person, one vote,” asking who must be counted in creating voting districts: all residents or just eligible voters?

The difference matters because people who are not eligible to vote — children, immigrants here legally who are not citizens, unauthorized immigrants, people disenfranchised for committing felonies, prisoners — are not spread evenly across the country. Except for prisoners, they tend to be concentrated in urban areas, amplifying the voting power of Democrats.

A ruling requiring or allowing the counting of only eligible voters now seems less likely, and a 4-to-4 split would leave in place an appeals court decision upholding Texas’ practice of counting everybody.

I expect plaintiffs to lose this case, and I don’t expect it to be close. On Scalia specifically, t I noted Justice Scalia’s uncharacteristic silence at the oral argument in Evenwel:

Justice Scalia is not shy about expressing his opinion. He had plenty to say in the oral argumentyesterday in the Harris redistricting case. He spoke at today’s Fisher affirmative action argument as well. But at yesterday’s Evenwel oral argument (the one person, one vote case), he was silent.

Now silence from a Justice doesn’t necessarily mean anything. Consider Justice Thomas, who never talks, but who has been the person most active on the Court in getting the Court to reconsider this one person, one vote issue (Thomas alone dissented from a cert denial in a 2001 case raising the same issue).

But given that it is Justice Scalia, it does suggest he is not heavily invested in this case, and therefore not a likely vote to upset the apple cart.  If he thought that plaintiffs had a good theory, I would have expected him to go after Texas or the U.S. at arguments.  Scalia might believe (1) there’s not good originalist argument here; (2) plaintiffs’ arguments go against principles of federalism; (3) Burns and other cases are precedent that should be followed here; or (4) all or none of the above.

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