Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, in which case the lower district court’s decision would be upheld, and it essentially is as if the Supreme Court never took up the case at all.[1] Alternatively, the Court may order that the case be re-argued after the new Justice is chosen.[2] This second practice is the precedent historically.[3]

There are three particularly controversial cases currently before the Supreme Court dealing with abortion, immigration, and affirmative action—Whole Woman’s Health v. Cole, United States v. Texas, and Fisher v. University of Texas at Austin, respectively. Like many cases, these decisions will come down to Justice Kennedy’s swing vote. Justice Kennedy may, for the sake of fairness, choose to align with the losing side in order to invoke a tie so that the case could be reheard with nine justices. Regardless, important and contentious issues are at stake. Finally, this article will address the impact of Justice Scalia’s absence on these important cases and evaluate the cases’ likely outcome.

Whole Woman’s Health v. Cole

The Supreme Court heard oral arguments in this Texas case on March 2.[4] The issues for the Court to decide are whether: under the undue burden standard of Planned Parenthood v. Casey, the state’s laws, which purportedly restrict abortions in order to promote women’s health, actually serve that interest; and whether the state can enforce these laws even though they cause a significant number of abortion clinics to close, and simultaneously fail to advance the state’s interest in promoting women’s health.[5] There were two provisions of Texas’s House Bill No. 2 at issue.[6] The first required physicians at abortion facilities to have admitting privileges at a hospital within thirty miles of the abortion facility.[7] The second required abortion facilities to comply with standards set for ambulatory surgical centers.[8] The plaintiffs claimed that the effect of this law was an undue burden and essentially closed most of the abortion facilities in Texas.[9] They alleged that the state’s interest of promoting women’s health actually negatively effects women’s health.[10] However, the state maintains that these laws provide quality care for women seeking abortions.[11]

The Fifth Circuit determined that the Texas law did not create an undue burden and could be applied throughout Texas.[12] However, it also upheld the lower court’s injunction against the two provisions as applied to the Whole Woman’s Health facility in McAllen, Texas.[13] Since this facility was the only abortion facility available within 235 miles to women in the Rio Grande valley, it was an undue burden.[14] Therefore, most of the facilities in Texas would be subject to these provisions, leaving, at most, eight abortion facilities in the state.[15]

The Supreme Court stayed the Fifth Circuit’s decision until it could hear the case. This allowed the abortion facilities affected by the ruling to stay open until a decision is made.[16]Justices Alito, Thomas, and Roberts voted to deny the application for temporary stay.[17] However, Justice Kennedy joined the more liberal-leaning Justices and granted the stay.[18]  While Justice Kennedy normally joins conservatives on abortion cases, he refused to overturn Roe v. Wade in the Planned Parenthood v. Casey case.[19] These factors suggest that Justice Kennedy may join Justices Sotomayor, Kagan, Ginsburg, and Breyer, giving the liberal-leaning Justices the majority. However, Justice Kennedy may decide to stay with the conservative leaning Justices in order to create a tie so that they case could be reheard later, with nine justices.

United States v. Texas

This controversial case could deliver a big blow to the Obama administration’s executive action immigration plan, the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Twenty-six states have joined this suit.[20] They challenge DAPA under the Take Care Clause of the Constitution and the Administration Procedure Act (“APA”).[21] DAPA allows undocumented immigrants that have children who are United States citizens or lawful permanent residents to become “lawfully present.”[22] This means that they are lawfully present in the United States for a specified period of time.[23] However, this would also allow them to apply for certain government and state benefits like social security benefits, health care, work authorization and a social security number.[24] The states allege that they have standing because it would be costly for the states to provide these benefits to the estimated 4.3 million people eligible for this program.[25]

The states maintain that DAPA violated the APA procedurally and substantively.[26] Procedurally, under the APA, a substantive rule must undergo a comment and notice process.[27] This requires the executive branch to announce its program and allow the public to comment and then respond to those comments.[28] Substantively, the states argue that the executive branch did not have authorization from Congress to create the DAPA rule at all.[29] Finally, the states allege that DAPA is in direct violation of Congress’s will and therefore the President, as required by the Take Care clause of the Constitution, is not taking care that the laws are faithfully executed.[30] In contrast, the government’s main argument is that the states lack standing.[31]

In analyzing the states’ standing, the Fifth Circuit Court of Appeals looked to the cost that Texas would incur from issuing drivers licenses to DAPA individuals.[32] Using Texas’s injury as the prime example, the Fifth Circuit determined that the states do have standing because of the enormous costs that the states would incur.[33] The states proved a substantial threat of irreparable injury in the form of millions of dollars of losses and a protection of public interest in the form of the protection of the separation of powers.[34] Therefore, the court granted a nationwide preliminary injunction, freezing the DAPA action.[35]

Once again, Justice Kennedy will probably be the deciding vote in this case. He has joined the liberal majority in past immigration cases like, Arizona v. United States.[36] If he remains consistent in this case, the Fifth Circuit’s decision would be overturned. In addition, he may not want to invoke a tie in this case because the immigration preliminary injunction currently applies nationwide. There is also the issue of whether this injunction would still apply if the Supreme Court’s decision resulted in a tie and would have to be reargued. This issue needs to be decided sooner rather than later because 4.3 million people’s legal statuses are currently in limbo until that time.

Fisher v. University of Texas at Austin

This affirmative action case, also out of the Fifth Circuit, involves a university’s “holistic” review of student applications.[37] It involves a young woman who argues that the University’s procedure of considering race as a factor in their holistic approach violates the Fourteenth Amendment.[38] The Supreme Court already reviewed this case, remanded it, and ordered that the lower courts examine the school’s procedures with “more exacting scrutiny.”[39] The case is in the Supreme Court’s hands again, this time to determine whether the race factor considered in the holistic approach of the school is unconstitutional.[40] However, Justice Kagan has recused herself from this case because of her contribution to an amicus brief when the case was pending before the Fifth Circuit, so there is a possibility that the conservative-leaning justices would win with a 4-3 vote, overturning the Fifth Circuit’s decision.[41]

The school’s admissions program had two components, the top ten percent plan and the holistic plan.[42] The top ten percent program accepted every Texas high school student who graduated in the top ten percent of their class.[43] For the rest of the class’s spots, the school looked at applicants holistically; that is, they looked at all aspects of the student’s application and considered leadership qualities, grades, family composition, socioeconomic composition, essays, work experience and other qualities.[44] The Plaintiff alleged that, because the top ten percent plan effectively achieved a high percentage of minorities in the school’s classes, there was no need to consider race in the holistic program.[45] The Fifth Circuit determined that the school had an interest in holistic diversity that adds to the richness of the educational experience.[46] It pointed out that a white person in a majority black school would add diversity just as a black person in a majority white school would.[47] Therefore, applying “exacting” strict scrutiny, the court found again that the University’s holistic program was constitutional.[48]

Justice Kennedy wrote the Fisher I opinion calling for stricter scrutiny.[49] The previous case was a 7-1 majority with Justice Ginsburg as the only holdout.[50] However, it is likely that the other liberal-leaning justices would vote in support of affirmative action since this case is more about the merits of the case and not about the type of scrutiny. In addition, it seems likely that Justice Kennedy would join with Justices Thomas, Alito, and Roberts to gain the majority and overturn the Fifth Circuit’s case. At oral argument, some Justices questioned the idea that affirmative action is needed at all in this modern age.[51] Justice Kennedy’s comments suggested that he believed the case needed to be remanded again for more discovery and fact finding.[52] However, since this is the second time this case has been to the Supreme Court, he may decide to just make the decision with the information that he has. Also, the attorney for the University did not clearly agree that, if given the opportunity, he would gather more information, specifically on the amount of minorities that the University has admitted through this program.[53] Therefore, it is highly likely that the Supreme Court’s conservative majority will win this case 4-3.


In conclusion, the death of Justice Scalia has a major impact on many important cases before the Court today. Affirmative action, abortion, and immigration are highly contested issues about which citizens have passionate opinions. If the Court goes with tradition, in the event of tie, it will defer the case for re-argument once a new Justice has been appointed. However, in a lot of cases, Justice Kennedy will be the swing vote that will decide if the case will be re-argued or decided 5-3. It is likely that Justice Kennedy will vote with the conservative majority in Fisher and with the liberal justices in Whole Women’s Health. However, since there are many issues to be decided in United States v. Texas, it is hard to predict how Justice Kennedy will vote. Hopefully, the Court will recognize the significance of the cases in front of them and work together towards the most equitable result.

[1] Tie Votes Will Lead to Re-argument, Not Affirmance, SCOTUS Blog (February 14, 2016), http://www.scotusblog.com/2016/02/tie-votes-will-lead-to-reargument-not-affirmance/.

[2] Id.

[3] Id.

[4] Whole Women’s Health v. Hellerstedt, SCOTUS Blog, http://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/.

[5] Id.

[6] Whole Women’s Health v. Cole, 790 F.3d 563, 576 (5th Cir. 2015)

[7] Id.

[8] Id.

[9] Id. at 585.

[10] Id. at 579.

[11] Id.

[12] Id. See 566, 583.

[13] Id. at 596.

[14] Id. at 594.

[15] Id. at 578.

[16] Ian Millhiser, Supreme Court Allows Texas Abortion Clinics to Stay Open, Think Progress (June 29, 2015) http://thinkprogress.org/justice/2015/06/29/3675423/breaking-supreme-court-allows-texas-abortion-clinics-remain-open/

[17] Id.

[18] Id.

[19] Id.

[20] Texas v. United States, 809 F.3d 134, 146 (5th Cir. 2015).

[21] Id. at 149.

[22] Id. at 147-48.

[23] Id.

[24] Id. at 148-49.

[25] Id.

[26] Id. at 146.

[27] Id. at 170.

[28] Id. at 170-171.

[29] Id. at 186.

[30] Id. at 186. See also 149.

[31] Id. at 150.

[32] Id. at 155.

[33] Id. at 155-56.

[34] Id.

[35] Id. at 187-188.

[36] Laura Francis, Scalia’s Absence May Not Affect Immigration Case, Daily Labor Report (February 18, 2016) http://www.bna.com/scalias-absence-may-n57982067466/.

[37] Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 637 (5th Cir. 2014).

[38] Id.

[39] Id.

[40] Id.

[41] Peter Jacobs, Looming Supreme Court Battle Could Be a Major Blow to Affirmative Action, Business Insider (June 29, 2015) http://www.businessinsider.com/supreme-court-fisher-v-university-of-texas-decision-could-be-a-major-blow-to-affirmative-action-2015-6.

[42] Fisher, 758 F.3d at 637.

[43] Id.

[44] Id. at 637-38.

[45] Id. at 644-45.

[46] Id. at 653-54.

[47] Id. at 653.

[48] Id. at 659-660.

[49] Fisher v. Univ. of Tex., 133 S. Ct. 2411, (2013).

[50] Id.

[51] Transcript of Oral Argument, at 74 Fisher v. University of Texas, No. 14-981 (U.S. argued Dec. 9, 2015).

[52] Oral Argument at 19.

[53] Id.

Up ↑

Skip to content