What Scalia’s death means for the current SCOTUS term (updated)

IMG_0182These things became abundantly clear within hours of the death of U.S. Supreme Justice Antonin Scalia.

President Obama intends to meet his constitutional obligation of filling the vacancy on the court as soon as possible, by naming his choice and sending that candidate to the U.S. Senate for approval.

Republicans in the Senate intend to do everything in their power to block any such appointment, arguing that that should be the prerogative of the next president.

And in the midst of what’s already shaping up to be an historic general election cycle, Americans are about to get a lesson on the critical importance of the presidential judicial appointments power and the impact the Senate’s obstruction of that power has had in recent years.

The President theoretically can make a recess appointment to the high court (former Justice William J. Brennan, Jr., got his start on the court that way), but as Lyle Denniston at SCOTUSblog notes, the Court last term restricted that recess appointment power to the point where the Senate controls what constitutes a “recess.”

And given the already-announced recalcitrance by the leaders of that body to an Obama Supreme Court nominee — especially now — the qualifying recess is unlikely to happen.

In the short term then, what does an eight-justice court mean for cases before the nation’s highest court?

The justices will continue with the term, deciding cases already argued, hearing those set for argument and reviewing new requests for review (likely for argument next term), along with requests for emergency relief — including North Carolina’s pending petition for a stay of last week’s federal order requiring a redrawing of the congressional voting map by Feb. 19.

In cases in which Scalia has already voted but an opinion has not yet been announced, his vote is void and the decision then turns on how the other justices have voted. 

Where there’s a 4-4 split, the justices could let the decision of the lower court from which the appeal arose stand, as Tom Goldstein at SCOTUSblog notes here, “affirmed by an equally divided Court.” Such a decision has no precedential effect, though.

Or they could schedule the case for reargument in the term that begins next October with the hope that a full court could decide the issue at hand.

Plenty of controversial cases remain pending at the high court for decision this term — some already argued — in which a 4-4 split decision is possible. They include abortion rights in Whole Womens Health v. Ellerstedt, affirmative action in Fisher v. University of Texas, redistricting one person one vote in Evenwel v. Abbott, union fees in Friedrichs v. California Teachers Associationdeferred action for immigrant parents (DAPA) in United States v. Texas, and religious exemptions to the Obamacare contraceptive mandate in Zubik v. Burwell.

(For the specific impact predicted in these and other cases, see the New York Times graphic here.)

North Carolina has its own share of controversial cases that will work their way to the Supreme Court — most notably the redistricting cases pending in state and federal court and the voting rights cases before Judge Thomas Schroeder — but none of those are on the high court’s docket for decision this term.

The biggest impact the Scalia vacancy will have on those cases will be on emergency applications for relief from court orders — as in the current federal congressional district case, and possibly in the federal legislative district case, should a similar map-redrafting order — as well as in the voting law case, should Schroeder or the Fourth Circuit on appeal require changes.


(Note: This post has been updated to add as an option for the court this term the rescheduling of split decision cases for reargument next term in the hope that a full court can rule determinatively — as opposed to letting the decision of the court below stand.)

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