Not much time remains to speculate about how the U.S. Supreme Court will handle healthcare-related cases without the late Justice Antonin Scalia. A number of them are fast approaching on the court's calendar, including one scheduled for arguments Tuesday.
Legal experts say they expect the court will go ahead and hear those cases and others despite the conservative justice's unexpected death last week.
The case set to be argued Feb. 23 involves the penalties companies face for patent infringement and could have a significant impact on the medical-device industry. And in two weeks, the court is scheduled to hear a major case over whether Texas has gone too far in regulating abortions.
Nick Bagley, a law professor at the University of Michigan, said those arguments are likely to go on as planned unless the schedule is modified to accommodate events associated with Scalia's death. Bagley also noted that the majority of cases are decided unanimously, and in that scenario Scalia's passing won't change anything.
The patent cases scheduled to be heard Feb. 23, for example, are likely to be decided by a unanimous or near-unanimous vote, said Harold Edgar, a professor at Columbia Law School.
Those consolidated cases, Halo Electronics Inc. v. Pulse Electronics Inc. and Stryker Corp. v. Zimmer, raise the question of when a company—such as a medical-device maker—may receive up to triple damages for patent infringement.
A company found to have willfully infringed on a patent can be ordered to pay the patent holder triple damages. The question is whether the U.S. Court of Appeals for the Federal Circuit used an appropriate test for willful infringement.
The case could have a big impact on patent law and influence how companies ensure they don't get pegged for willful infringement on another company's patent, said Janelle Waack and Terry Clark, partners at Bass, Berry & Sims.
Edgar said he believes the court will modify one or more of the standards for determining whether the violation was willful. But, he added, “I don't think this is an issue where Justice Scalia's presence will make a difference one way or another.”
But it will be more complicated whenever Scalia's absence yields a 4-4 split on the court.
That could happen in the Texas abortion case, Whole Woman's Health v. Cole, which is scheduled to be heard March 2 and would be the first major hot-button question to come before the court after Scalia's death.
The justices are asked to decide whether a Texas law unconstitutionally limits access to abortion by requiring that doctors at abortion clinics have admitting privileges at local hospitals and that the clinics meet the same standards as ambulatory surgical centers. A decision in the case could affect how states across the country may regulate abortion.
But it's quite possible there won't be a decision. Many legal experts predict that the court's four liberal-leaning justices will side with the abortion clinics, while the court's three remaining conservative-leaning justices will side with Texas. If Justice Anthony Kennedy, often the court's swing vote, sides with the conservatives, the court would find itself in a 4-4 split.
That means the lower court's ruling would stand. That court, the 5th U.S. Circuit Court of Appeals, upheld the Texas law, saying it didn't impose an undue burden on a woman's right to get an abortion. The decision would apply not only in Texas but also in Louisiana and Mississippi, which are also in the 5th Circuit.
“You're talking about a big chunk of the country,” said Robin Fretwell Wilson, a law professor at the University of Illinois.
Fretwell Wilson said she believes it's unlikely the court would be content to simply let the circuit decision stand in such a case. If there's a split vote, she said, the justices may want to re-argue the case when a ninth justice is confirmed.
The same may be true for a set of big cases this term centering on not-for-profit religious organizations' objections to an Obama administration policy designed to help them meet the Affordable Care Act's contraception mandate.
Organizations that want to opt out of paying for contraception coverage for their employees must submit a form to their third-party administrator or provide information to HHS so the government can arrange the coverage. The religious organizations object to having to play any part in helping employees get contraception.
A 4-4 split in those cases, scheduled for argument March 23, would mean different law in different parts of the country because seven circuits have sided with the government and one has sided with the religious not-for-profits.
The justices may feel the issue is too big to leave up to individual circuit courts, Fretwell Wilson said. “I would see a lot of urgency in wanting to have one resolution for the country on that question.”
Regardless of whether Scalia's death is likely to alter the outcome of a case, Bagley said, it's unlikely the justices would want to put off hearing cases until a ninth justice is in place. “Before a case is argued, you don't know how it's going to come out, so unless the court wants to pitch its tent and say it's closed for business, it's going to have to keep hearing cases,” he said.
President Barack Obama has pledged to nominate a successor, but Republican leaders in the Senate have said they won't hold a vote on any nominee Obama puts forward.
“They may feel like they can't hold a case for 10, 11, 12 or 13 months while we get a new president, nominate a new appointee and affirm that new appointee,” Bagley said.