How Justice Scalia’s Death Is Likely To Impact The Court’s Current Term

In the short term, Justice Scalia's death will have a significant impact on cases the Supreme Court has already heard, and cases it is scheduled to hear in the next two months.

Supreme Court Building

SCOTUSBlog’s Tom Goldstein discusses what the death of Justice Antonin Scalia is likely to mean for the cases that the Court has already heard, and those that it is scheduled to hear before the end of the current term:

Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.  Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas.  In my estimation, the Court was likely to strike those provisions down.  If so, the Court would still rule – deciding the case with eight Justices.

Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case.  But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority.

Alternatively, as Goldstein notes, the Court could end up punting on several of these closely divided cases, ruling on some procedural issue that results in the case getting sent back to the lower courts for further proceedings with the idea that the case would likely return to the Supreme Court at a time when they have a full compliment of nine Justices. Another possibility is that the Court could end up shifting its ruling in a particular manner in such a way that a 4-4 tie becomes a 5-3 majority in one direction or another. Another potential alternative would be for the Court to defer ruling in some of these cases, or to order them to be rebriefed and argued again at some point during the Court’s next term. This would not be an unprecedented move by the Court, although it is not something that frequently happens. Roe v. Wade, for example, was first argued before the Court during the October 1971 Term and then reargued during the October 1972 Term. One problem with this strategy is that, given the initial comments from Senate Republicans, it is entirely unclear when Justice Scalia’s seat might be filled. In theory, the seat might be vacant until at least early Spring 2017 and that would be a significant period of time during which to hold a case open for reargument. Given that, there are likely to be several cases in which we end up with a 4-4 decision that upholds the decision of the Court below but which does not have any precedential effect outside the confines of that case. Even in the short term, in other words, the absence of Justice Scalia on the Court will likely have a significant impact on the manner in which some of the most important cases before the Court this term are likely ones in which the Court is closely divided.

One case in particular where Scalia’s death is likely to have a real impact is the case dealing with the challenge to President Obama’s executive action on immigration. In that case, the court below upheld a pre-trial injunction barring the Administration from granting the relief that the President’s actions provided. While the Court did expand the scope of review when it accepted the case for review, it could ultimately end up ruling on the injunction alone, or on the related issue of whether the states have standing to challenge the President’s action to begin with. If, as expected, those were issues in which the court is closely divided, the result is that the injunction would stand and the case would return to the District Court for further proceedings. Among other things, this means that it would be unlikely that there would be a final ruling on this issue before Barack Obama leaves office less than a year from now.

Justice Scalia’s death is likely to have a more profound impact in the series of cases dealing with the latest round of challenges to the birth control coverage mandate in the Affordable Care Act. In each of those cases, the entity challenging the mandate lost in the lower court, meaning that the mandate would stand as applied to them if the Court ended up with a 4-4 decision. This is an outcome that is unlikely to please conservatives, but which will be largely unavoidable unless the Court decides to defer action on these cases in the manner discussed above.

Finally, as Goldstein notes, the fact that Justice Kagan is not participating in the argument or decision of the pending affirmative action case due to her previous involvement with the case as Solicitor General, means that we are likely to get a ruling on the merits in that case notwithstanding the fact that the Court will now be down two Justices. Even with Scalia unable to rule in that case, conservatives still have a functional majority in that case due to Kagan’s recusal. The only question there is whether Scalia’s absence will have an impact on how far the conservative majority is willing to go in its ruling given the fact that he had a long reputation of doing his best to influence the direction of an opinion even when he was wasn’t the Justice assigned to write it on behalf of the majority.

Of course, there will be any number of cases in which Justice Scalia’s absence will not have an impact on the outcome. While the Supreme Court has had a reputation for being closely divided on ideological lines for some time now, the reality is that most of the opinions the Court issues in a given term are not 5-4 decisions. In those cases, the Court will be able to proceed forward although it’s likely that several cases that have already been heard will be impacted if only because Justice Scalia was assigned to write the opinion for the Court, or because he took it upon himself to write what would have turned out to be a dissent joined by other Justices. In those cases, release of the opinions will need to be delayed as work is shifted around among the surviving Justices and, in any case, much of that work will likely wait for at least a week as the Court prepares for what is likely to be a week of mourning for a man who had been the longest serving Justice on the current Court.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. C. Clavin says:

    Send them all home for a year while Republicans prove their incompetence.

  2. Argon says:

    So when is a House committee going to investigate Obama’s role in the Justice’s death, is what half the GOP electorate tinfoil-hatted conspiracy theorists will want to know.

  3. @C. Clavin:

    Even if the Senate acted in the ordinary course with respect to a replacement appointment, it wouldn’t have much of an impact on the current term. Indeed, it’s unlikely that there would be enough time to get a nominee appointed, considered, and confirmed, in time to take part in the remainder of the current term to any significant degree.

  4. C. Clavin says:

    @Doug Mataconis:

    Even if the Senate acted in the ordinary course

    There is nothing ordinary about this Senate, or Congress for that matter.
    I think “abdicate” is too weak a word for the behavior of Republicans…even before Justice Scalia kicked.

  5. C. Clavin says:

    @Doug Mataconis:
    I do take your point…but the conversation should be what are the likely scenarios and how quickly can this happen…not that it’s not going to happen for a year or more.

  6. Tony W says:

    As the Washington Post noted this morning, the appeals courts gain a lot of power if the Supreme Court is divided evenly. Agree that the immigration case just got a lot more interesting – wonder if they even would have heard many of these issues if Scalia were not around.