The immediate impact of the death of Justice Scalia [correction appended]

Dan Crawford emailed me shortly after the news broke about Justice Scalia’s death, asking whether I have any random thoughts about it.  Here’s what I wrote back:

I posted a comment to Bill’s post on the announcement, saying that I think everyone should take a deep breath before saying much of anything.  It’s absolutely huge, but I think those of us on the polar opposite of the ideological spectrum should cool it for a day, as a small courtesy.

But it will have a huge immediate effect: There are several cases on the court’s docket this term–cases that would have profound impact, on unions, on affirmative action, on environmental law regulation and the Paris climate-change accord, on the extent to which the executive branch can regulate anything, on the permissible reach of executive orders, including of course on immigration issues–that would have been decided 5-4, some of them altering really broad areas of law and politics.

By “on the docket,” I mean cases already argued this term, cases scheduled for argument by the end of April, and cases that the court is currently considering whether or not to hear but that very likely the court would have agreed to hear in order to upend some major area of law. Expect a slew of dismissals of cases in the first and second of those categories, and a very few cert. grants the rest of this term (cases granted going forward will be heard next term, not this term).

I think I’ll repost this email as a post.



CORRECTION: Scotusblog’s Tom Goldstein has a thorough account of what will happen in the closely divided cases: If 4-4, the court will issue an order saying that the lower court’s decision is “affirmed by an equally divided Court.”  It’s tantamount to a dismissal, but technically it is not a dismissal. Goldstein says “we should expect to see a number of such cases.”

Also, I knew there was one case of existential (for the Democratic Party) importance, but I couldn’t think of what that case is.  It’s Evenwel v. Abbott, on the meaning of the “one person, one vote” guarantee.  (Thanks, Tom Goldstein!)  And Goldstein notes something I forgot about the big affirmative action case, Fisher v. University of Texas, Austin: Elena Kagan has recused herself in the case, because when the case was heard at the court on its first go-around there (this is its second one) Kagan was involved in it as U.S. Solicitor General, representing the federal government as an amicus.  So Fisher will be decided 4-3.*

Added 2/13 at 8:51 p.m.


*Ooops. Reader C0Rev wrote in the Comments thread: “I think this: ‘So Fisher will be decided 5-3’ was meant to mean ‘So Fisher will be decided by 7 Justices.’”

Yup; that sentence really did originally say “So Fisher will be decided 5-3.”  Well, no one has ever accused me of being a mathematician.

Seriously, thanks, CoRev.

Added 2/14 at 10:00 a.m.