Justice Antonin Scalia’s death, reported earlier today, will have significant ripples in the political process, including the campaign season and a possible confirmation process under either President Barack Obama or the 2016 president-elect. But it will also have a direct effect on Scalia’s job, which is deciding cases as part of SCOTUS.
There are two prevailing theories being floated by legal scholars about Scalia’s votes. One is that all votes from Scalia that have not yet been passed down cannot count as deciding votes. The second is that all 4-4 decisions with the new court’s math revert to the lower court’s decision or can be held for a re-hearing.
Among the key cases that could be impacted by these complexities are Evenwell v Abbott, which argues whether states can use total population or registered voters as the base population for considering redistricting (the one-person, one-vote case). The lower court decision supports the existing rule, in which districts are drawn using total population as a base.
Friedrichs v. California Teachers Association in a 4-4 tie would revert to the lower court’s decision to back existing union practice of requiring fees from nonmembers. A SCOTUS reversal would be a blow to unions.
Whole Women's Health v. Hellerstadt is a challenge to existing Texas state law that has closed several abortion clinics by imposing strict restrictions and requirements on them. A 4-4 tie would revert to the lower court’s decision to uphold the law, so that outcome is not likely different than a 5-4 Scalia ruling, given his adamant anti-abortion record. However, this outcome might be a damper on momentum from other states to enact similar laws.
Affirmative Action case Fisher v. University of Texas at Austin will be decided with seven justices, as Kagan has recused herself. It will not trigger the 4-4 tie rule, but Scalia’s death does change the math. A 4-4 tie was a possibility in the original math (and the most likely pathway for a victory for AA supporters), and that would have reinforced the lower court’s acceptance of race-based preferences in college admissions. The decision now will set precedent regardless of which way the deciding vote leans.
Zubik v. Burwell is a consolidated case that challenges the accommodation to the ACA’s contraceptive mandate for religious nonprofits. The 3rd Circuit ruled that the accommodation places no substantial burden on the appellees and did not alter the mandate. A 4-4 ruling in SCOTUS would reinforce that.
Finally, the major immigration case, United States v. Texas, is a battle over an Obama administration effort to grant “lawful presence” to large groups of undocumented immigrants. Lower courts voted to issue a stay on the programs, so a 4-4 return would reinforce the stay.
