What Justice Scalia’s death means for pending Supreme Court decisions

Liz Goodwin
·Senior National Affairs Reporter

Justice Antonin Scalia, the Supreme Court’s conservative firebrand, died Saturday, leaving the fate of a controversial and high-stakes term very much up in the air.

The Reagan appointee had heard and potentially already cast votes in several high-profile cases that could decide issues from whether universities can continue to use affirmative action to if unions can collect fees from nonmembers to survive.

Scalia’s votes in those cases will be invalidated, sending the justices back to the drawing board to renegotiate those decisions. His death will likely also lead to 4-4 splits on some key issues, with the remaining four liberals and four conservatives facing off against each other.

When the court splits down the middle on a case, it does not create a binding legal precedent for the country. Whatever the lower court decided is affirmed, and that ruling only applies to their circuit — leaving legal conflicts among circuits unresolved. Or the court can put the case over for re-argument, essentially telling both parties to try again when the court is back to a full bench, according to Erwin Chemerinsky, dean of the University of California at Irvine Law School. The court is divided 5-4 along ideological lines only about a quarter of the time; most decisions are unanimous. But those divided decisions are often the most culturally and politically controversial.

Slideshow: Justice Antonin Scalia — A look back

The potential for 4-4 decisions means uncertainty for several upcoming cases this term that affect President Obama’s legacy. Obama’s executive action extending protection to millions of undocumented immigrants, which Scalia almost certainly opposed, will be heard later this term without the conservative stalwart.

A case challenging the contraceptive mandate in Obamacare for religiously affiliated nonprofits will also come before the court next month. Scalia would most likely have been the fifth vote siding with religiously affiliated groups who don’t want to provide contraception, according to Professor Suzanna Sherry of Vanderbilt Law School. If that case is now decided in a 4-4 split, religious colleges would have to cover contraceptives in their health plans since lower courts upheld the mandate. (The court could decide to reargue that case instead of issuing a split decision.)

A decision on whether Texas’ abortion center regulations create an illegal burden for women seeking to access abortions is less likely to be affected by Scalia’s death, since Justice Anthony Kennedy is the swing vote in that case. If the court splits 4-4, Texas’ law stands because the lower court upheld it.

The Supreme Court’s surprising 5-4 decision earlier this month to stay the Environmental Protection Agency’s ability to implement new carbon emissions rules will stand despite Scalia’s death. The stay is in effect until the case is decided in the D.C. Circuit, so the Supreme Court will not look at the case again for at least another year.

This uncertainty surrounding big decisions could last beyond this term depending on whether and for how long the Senate fights Obama’s nomination to replace Scalia. The Republican Senate is unlikely to let the president push through his own pick so close to an election, predicts Tom Goldstein of SCOTUSBlog. It’s possible the president could attempt to bypass the Senate and replace Scalia through a recess appointment, but that is a rarely used tactic that would be certain to draw outrage and criticism from Republicans.