U.S. Supreme Court

Chemerinsky: What will Scalia's absence mean for current cases?

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Erwin Chemerinsky

Erwin Chemerinsky.

On Monday, Feb. 22, the Supreme Court began two weeks of oral arguments, and two cases especially will provide an initial glimpse into the court without Justice Antonin Scalia. Both involve issues—due process in death penalty cases and abortion rights—in which Scalia has been outspoken and a predictable vote for almost 30 years. His absence leaves a real chance that each of these cases could be split 4-4.

Williams v. Pennsylvania

On Feb. 29, the court will hear oral arguments in Williams v. Pennsylvania, which focuses on what is required to have an impartial court, specifically in the context of a death penalty case. Terrance Williams was prosecuted for the 1984 murder of a church deacon in Philadelphia County. Ronald Castille was the district attorney there at the time, and Williams was convicted and sentenced to death.

In 1993, after Williams’ conviction and death sentence had been affirmed, Castille successfully ran for a seat on the Pennsylvania Supreme Court. In his campaign, Castille stressed his experience as district attorney, including emphasizing the number of people who were sentenced to death during his tenure.

Subsequently, a Pennsylvania trial court granted Williams’ motion for post-conviction relief, finding that the district attorney’s office had knowingly presented false testimony and violated Brady v. Maryland by not disclosing information that could have been used to impeach a key prosecution witness.

The Commonwealth of Pennsylvania appealed and Williams moved to disqualify Chief Justice Castille from participating. By this point, Williams had discovered a handwritten note from Castille when he was district attorney, explicitly authorizing the assistant district attorney to seek the death penalty against Williams. Castille denied the motion for his recusal. The Pennsylvania Supreme Court, with Castille in the majority, reversed the trial court and ruled against Williams.

The issue before the Supreme Court is whether Castille’s failure to recuse himself violated Williams’ due process rights. The Supreme Court long has said that a “fair [proceeding] in a fair tribunal is a basic requirement of due process.” In re Murchison (1955). Most recently, in 2009, the Court held in Caperton v. A.T. Massey Coal Co., Inc. that due process was violated when a state supreme court justice participated in a case when one of the parties spent a great deal of money to get him elected to the bench. The Court said: “The [recusal] inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

If the court finds that Castille should have recused himself, there is then the question of remedy. Does the improper participation of one member of a multimember court violate due process? The Supreme Court previously indicated that this was a question that it had not yet resolved. In 1986, the court stated in Aetna Life Insurance Company v. Lavoie: “Our prior decisions have not considered the question whether a decision of a multimember tribunal must be vacated because of the participation of one member who had an interest in the outcome of the case.” But the lower courts have overwhelmingly found that a decision cannot stand where there is a tainted tribunal, that is, where due process required a judge’s recusal, even though the judge did not cast the deciding vote.

The case is potentially very important in clarifying the standards under due process for when a judge is impermissibly biased and how this should be handled when the judge is on a multi-member court.

Whole Women’s Health Center v. Hellerstedt

On Wednesday, March 2, the court will hear oral arguments in one of the most high profile cases of the term, Whole Women’s Health Center v. Hellerstedt, which involves a Texas law regulating abortions. In 2013, the Texas legislature passed H.B. 2, which imposed two significant new restrictions on abortion providers. First, the law requires that a physician performing an abortion must have admitting privileges at a hospital within 30 miles of the location where the abortion is performed. Second, all facilities where abortions are performed must comply with the stringent standards for ambulatory surgical centers, even if there are only medically induced abortions and no surgical abortions performed there.

The federal district court held a hearing and found that these provisions would not benefit the health of women, that they would close many of the facilities in Texas where abortions are performed, and they would prevent the opening of additional facilities. It is estimated that about three-quarters of the facilities where abortions are performed would be closed by these regulations. The federal district court enjoined the regulations concluding that they “create a brutally effective system of abortion regulation that reduces access to abortion clinics, thereby creating a statewide burden for substantial numbers of Texas women.” The New Orleans-based 5th U.S. Circuit Court of Appeals reversed.

In 1992, in Planned Parenthood v. Casey, the Supreme Court held that state laws regulating pre-viability abortions are unconstitutional if they place an “undue burden” on the right to abortion. The court said that a law imposes an undue burden “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” The issue in Whole Women’s Health Center v. Hellerstedt is whether the Texas regulations place an impermissible undue burden on a woman’s right to an abortion. The court also is being asked to clarify whether the state must prove that the regulations actually protect women’s health or whether courts should defer to the judgment of the state legislature about this.

The court last decided an abortion case in 2007, in Gonzalez v. Carhart, when it upheld the federal Partial Birth Abortion Ban Act in a 5-4 decision. The court’s ruling in Whole Women’s Health Center could affect how challenges are handled to dozens of recently enacted state laws restricting abortion rights.

Justice Scalia’s Absence

In both of these cases, Justice Scalia would have been a likely vote for the government. He dissented in Caperton, rejecting the claim that there was a due process violation, and he was a consistent vote to affirm death sentence. He dissented in Casey and repeatedly urged the court to overrule Roe v. Wade.

Like in so many cases this term, Scalia’s absence raises a real possibility of a 4-4 split on the court. If that happens, in these and in other cases, the court will need to decide whether to affirm without opinion by an evenly divided court—in which case Williams’ death sentence is upheld and the Texas abortion regulations go into effect—or to put the case over for re-argument. If it is the latter, the key question will be whether there will be a ninth justice by then.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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