Scalia's death could upend America

As the nation is stunned by the death of Justice Antonin Scalia, the immediate question is what it will mean for the Supreme Court this year and in the future.


The court has an unusually large number of cases before it this term on controversial issues: abortion, affirmative action, the contraceptive mandate in the Affordable Care Act, the First Amendment rights of non-union members, immigration and voting districting.






Erwin Chemerinsky


The long-established procedure is that for a justice to participate in a ruling, he or she must be on the bench at the time the decision is handed down. Justice Scalia's vote, therefore, will not be counted in any case this year that has not already been issued. Obviously, in any case where there is a majority without him, the decision still will be forthcoming.


But there may be a number of 4-4 ties without his vote. For example, the Supreme Court heard oral argument in January in Friedrichs v. California Teachers Association as to whether to overrule a prior decision and hold that non-union members have a First Amendment right to not pay the share of union dues that goes to support collective bargaining.


From the argument it seemed clearthat the court, in a 5-4 decision split along ideological lines, would issue an important ruling against the unions. Now, it almost certainly will be 4-4.


The court will have two choices in these cases. One possibility is simply to announce that the court split 4-4, which means the lower court is affirmed without opinion by an evenly divided Supreme Court.


This would mean that the lower court decision in favor of the unions would stand, and in the abortion and immigration cases this would leave in place lower court rulings in favor of the conservative result. Or the court could decide to put these evenly divided cases over for reargument next year.


But will the court have a ninth justice next year? The crucial question is whether President Obama can nominate anyone that the Republican Senate will confirm. President Obama will likely want to appoint someone who will shift the balance on the court; he does not want to appoint a conservative just to get someone through the Senate. But it is doubtful that anyone acceptable to Obama could get the support of the majority of the Senate.


My prediction is that President Obama will pick someone quickly of impeccable credentials. The Senate will have to decide whether to confirm or leave the seat on the Supreme Court vacant for more than a year. Senate Republicans likely will choose the latter course, even though it may make them vulnerable to criticism in an election year.


If the vacancy remains until after the presidential election, even if the new President picks someone immediately, it is unlikely that the confirmation process can be done much before the end of the next term. This would mean the court would function with eight justices for the rest of this term and all of next.