Justice Scalia Left Undecided High-Stakes Cases That Could Change The Nation

What will happen to them will be a test for the Supreme Court.
Uncertainty looms over hot-button cases Justice Antonin Scalia participated in but never got to decide.
Uncertainty looms over hot-button cases Justice Antonin Scalia participated in but never got to decide.
Paul Morigi via Getty Images

It is not an overstatement that Justice Antonin Scalia's sudden death Saturday jolted the American political system -- and raised the stakes of the 2016 presidential election like never before.

Amid the uncertainty, including the future of the Supreme Court itself, is the status of the 50-plus cases the court has heard or has yet to hear. Scalia no doubt had a hand in all of them -- whether he voted to add them to the court's docket, considered them at oral arguments, or was even in the process of writing an opinion for the majority.

That leaves in legal limbo the fate of cases that could reshape the nation for decades -- including the constitutional future of abortion, affirmative action, the livelihood of public sector unions and President Barack Obama's executive actions on immigration.

The general rule for these cases, as explained by SCOTUSblog's Tom Goldstein, is that every vote Scalia cast toward deciding a case is a nullity if the decision is not yet made public.

That means that a lot of the work Scalia and his law clerks put into the still pending blockbusters of the court's current term -- which tend to be decided toward the end of June -- is now technically void.

Which in turn means that any case where the court was likely to split 5-to-4 along ideological lines -- with conservatives on one side and liberals on the other -- now runs the risk of resulting in a 4-to-4 vote. (The exception is cases where Scalia was in a supermajority, say 6-to-3 or 7-to-2 cases, which can still be decided without him on the bench.)

If that's the case, the Supreme Court would issue a decision that would look something like this:


Whenever the "judgment is affirmed by an equally divided Court," that leaves the lower court ruling as the controlling final decision. The Supreme Court won't make any new law for the nation, but at least the parties will have some finality. The issue could always return to the court in the future.

The starkest example where this result could be a game-changer is the pending challenge in Friedrichs v. California Teachers Association, a case dealing with the right of public unions to charge "agency fees" to everyone in a bargaining unit, even employees who are not members of the union.

Unions took a beating in that case at oral arguments in January, including from Scalia. But as The Huffington Post's Dave Jamieson noted on Saturday, no Scalia now means the case is bound for a tie -- which would leave in place the prior appeals ruling favoring the unions. And unions would get to breathe a sigh of relief, at least for now.

But other cases aren't so clear-cut. The result in the closely watched affirmative action case, where Scalia infamously said that black students could be better served by attending "slower-track schools," could still deal a blow to race-conscious policies at public universities. That's because the court went into that case with eight justices -- Elena Kagan recused herself due to her prior work in the dispute when she served as solicitor general.

As for the outstanding abortion and immigration cases, which will be heard in March and April, respectively, the absence of Scalia should provide some measure of comfort to advocates of reproductive rights and an administrative reprieve for millions of undocumented immigrants. There, Scalia was likely to be in the minority -- Justice Anthony Kennedy is widely expected to carry the day and the majority, given his past role in upholding Roe v. Wade and the federal government's prerogatives in immigration policy.

There are other major cases that remain up in the air -- including a separate religious challenge to contraception coverage under the Affordable Care Act and the future of the Constitution's "one person, one vote" principle. All of them could truly reshape the nation. With Scalia's chair now empty on the Supreme Court bench, the country should brace for some uncertain times ahead.

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