Additional Thoughts on the Passing of Justice Scalia

In addition to what I’ve posted at Balkanization, I want to add a couple of further technical things.

  1. Some discussion is already underway about the relevance of Justice Abe Fortas’s inability to get confirmed as Chief Justice Earl Warren’s successor in 1968 (another presidential election year). I recently published a short paper on “The Legacy of Chief Justice Fortas” that talked about this precedent.  There is a significant difference between that situation, which involved a voluntary retirement, and this one, which does not.
  2. What does the Court do with all the argued cases this Term that are divided 4-4?  Issue a per curium that says “affirmed by an equally divided Court” or dismiss the writ as improvidently granted?  I think that they have the same legal effect, but I’m not totally certain.
  3. The stay issued on the climate change regulations, of course, remains in place.  I assume that the same is true for any 5-4 decided case with Justice Scalia in the majority, even if the mandate has not issued.  I’m not sure about the latter though.
  4. Presumably, we will know the outcome of any controversial case almost immediately.  If the Court does not DIG or affirm by a 4-4 vote, then that must mean a majority exists without Justice Scalia (kind of a clear tell).  Of course, the Court could decide not to issue the 4-4 decisions until the end of the Term, which would preserve the confidentiality of the other results.

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