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.
- 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.
- 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.
- 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.
- 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.