published Jun 28th 2016, 2:21 pm, by Greg Stohr

(Bloomberg) —

A U.S. Supreme Court in transition offered glimpses of what a liberal majority might mean as the justices closed their term by strengthening abortion rights and bolstering college affirmative action.

Transformed by Justice Antonin Scalia’s unexpected Feb. 13 death, the nine-month session doused conservative hopes for major victories on labor unions, voting districts and class-action lawsuits.

The term left some of Scalia’s fellow Republican appointees unmistakably frustrated as they felt their grip on the court’s direction slipping away. Justice Samuel Alito warned Tuesday of an “ominous sign” when the court rejected an appeal from a Washington state pharmacy whose owners object on religious grounds to regulations requiring them to dispense emergency contraceptives.

“If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have great cause for concern,” Alito wrote. Chief Justice John Roberts and Justice Clarence Thomas joined the opinion.

Scalia’s death, coupled with the prospect of more vacancies in the next four years, means the next president may have a historic chance to reshape the court. With Senate Republicans refusing to consider President Barack Obama’s nomination of Judge Merrick Garland, the vacancy is almost certain to persist through the November election. In addition, Justices Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer all will be 78 or older on Election Day.

Clinton and Trump

Presumptive Democratic nominee Hillary Clinton has indicated she would appoint justices to join the court’s liberal wing in supporting abortion rights, campaign-finance regulations and gun restrictions. Republican Donald Trump has offered a list of 11 possible nominees, all conservatives likely to generally follow in Scalia’s footsteps.

Scalia’s death at age 79 shaped the term in large ways and small. Argument sessions became more placid affairs in the absence of his combative questioning and frequent wisecracks. Colleagues from across the court’s ideological spectrum spoke publicly about the void they felt.

One thing that didn’t change was Kennedy’s status as the court’s most frequent pivot point. The 79-year-old cast the deciding vote to strike down Texas regulations that would have closed three-quarters of the state’s abortion clinics by putting new requirements on facilities and doctors.

Kennedy joined a Breyer opinion that said the state failed to show the rules were necessary to protect women’s health.

Kennedy’s Court

The ruling was something of a shift for Kennedy, who in 2007 wrote the court’s opinion upholding a federal ban on a procedure opponents called “partial-birth” abortion. In that case, he wrote that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

Kennedy wrote for the court in upholding the University of Texas’ affirmative action policy. It was the first time in Kennedy’s 28 years on the court that he voted to uphold a racial preference.

“It is still Justice Kennedy’s court, for the moment at least,” said Steven R. Shapiro, national legal director of the American Civil Liberties Union.

The clarity of the abortion and affirmative action decisions stood out in a term permeated by efforts to forge narrow, consensus rulings so as to avoid 4-4 splits.

Compromises in other cases seemed to avert deadlocks. The justices punted in a case involving religious groups’ objections to providing insurance coverage for birth control under Obamacare, issuing an unusual order that told lower courts to consider whether the sides might be able to work out their differences.

Split Court

The justices split evenly in four cases, including a bid by union foes to free public-sector workers in more than 20 states from requirements that they help pay for the cost of collective bargaining. Scalia in all likelihood would have backed the effort in what could have been a sweeping First Amendment ruling.

The court also deadlocked on Obama’s plan to shield as many as 4 million unauthorized immigrants from deportation, leaving intact a lower court decision blocking the program. In that case, Scalia’s presence wouldn’t have changed the outcome, though it would have meant a majority opinion, possibly putting new restrictions on presidential authority.

Unfulfilled Promises

Other cases that had once looked promising for conservatives instead produced liberal victories or middle-ground outcomes. The court unanimously let state and local governments continue their longstanding method of drawing equal-sized election districts. The ruling rejected calls for a transformational change that might have reduced Hispanic voting clout.

“Conservatives can look at this term as something of opportunity lost, especially with regard to the union and immigration cases, where Scalia’s absence made a difference, but also with regard to affirmative action and abortion, where his absence did not,” said Brian Fitzpatrick, a former Scalia law clerk who teaches at Vanderbilt University Law School in Nashville, Tennessee. “But, as the latter cases show, the truth is that the court has been a disappointment to conservatives for decades. That trend looks like it will continue.”

The court gave businesses mixed results in a group of cases that might have curbed class-action and consumers’ lawsuits. The impact may not become clear for some time as lower courts sort out how to apply the rulings.

“It is a little too soon to declare us in a new liberal phase at the Supreme Court, particularly in light of the consensus reached in many decisions this term,” said Allison Orr Larsen, a former Supreme Court clerk who teaches at William & Mary Law School in Williamsburg, Virginia. “But I do think it seems that the justices are aware change is in the air.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net To contact the editors responsible for this story: Craig Gordon at cgordon39@bloomberg.net Laurie Asseo, Kevin Whitelaw
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