A number of Supreme Court cases heard by Justice Antonin Scalia but whose opinions have not yet been released are being thrown into question by his
death Saturday.
Speculation on how his death will affect those cases varies. Some believe 5-4 splits where Scalia was the deciding justice will be treated as 4-4 ties, meaning that the decision will revert to the final appellate court that heard it.
But precedent shows the court likely would have the case reargued once Scalia's replacement is on the bench, writes Tom Goldstein on
SCOTUSblog.
"The most on-point precedent involves Justice Robert Jackson, who died suddenly of a heart attack at the very beginning of the court’s 1954 term (on Oct. 9, 1954)," Goldstein writes. "Jackson’s replacement, John Marshall Harlan II, was confirmed later that term (on March 17, 1955). So for cases argued in the 1954 term before March 17, there is a direct parallel to the present circumstances. The court had only eight justices, due to the death of a member of the court."
Carrie Severino, chief counsel for the conservative Judicial Crisis Network, agreed, telling the
New York Post, "If there was a case where there was a 5-4 decision, and he was that fifth vote — but they hadn't issued their opinions yet — that will have to be a do-over."
But cases not yet heard could proceed with only eight justices. Sometimes, that happens anyway when a justice is forced to recuse. Justice Elena Kagan did just that about a year after her 2010 appointment by President Barack Obama. The case involved a challenge to Arizona's immigration law that Kagan had been involved in fighting as Obama's solicitor general.
Though such 4-4 ties affirm the lower court's decision, they also make it as though the case was never heard by the high court, and the constitutionality of the case hasn't been determined.
Close cases expected to be heard by the court in March include one involving whether an employer should have to provide contraception coverage, limits on mandatory union contributions, and a case involving multiple restrictions on abortion in Texas.
Had Scalia still been on the bench, all likely would have seen a conservative ruling, but now will result in a tie, the Post reported.
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