RIP Antonin Scalia. Now what?

Antonin Scalia, arguably the bane of many a left leaning jurist, was also one of the most influential legal scholars in our country's history.

He had a very strong voice on the Court, and his death will cause immediate society-changing effects. And what happens until we have another Justice? Although I hope that the process to appoint a successor goes smoothly, both the recent actions and tenor of the Senate makes me doubtful. What happens during the months (or perhaps year or more...societal structure would last at least that long...) where we have a 4-4 left versus right leaning divided court.

The system does not stop. It just does what the law is so good at doing...it applies a default mechanism to avoid a catastrophe in governance. Historical events like this cause such a nerdgasm for law/politics junkies such as myself. Ryan and I have just about overloaded on political fervor and excitement today. I mean, election year. On a debate day. We are living history. Okay. Back on topic.

So, what happens to cases currently pending before the Court?

If a decision has not been published, Justice Scalia's vote in that decision becomes void.

What does that mean as applied?
Some decisions will not be effected at all; I.e if a vote was 6-3 the decision outcome would be the same whether that decision becomes 5-3 or 6-2.

For others, they will be: "Affirmed by an equally divided Court"


By default, whoever won at the last level in the appellate process wins.

Not the most procedurally fair method, but it is better than the alternative. But the Court will not be even forever, and it remains to be seen how much deference that Court will give to "default outcomes.". I suspect that the major topics currently pending before the Court will be accepted for review again promptly upon appointment of a new Justice - but we have to live with the default outcomes in the meantime.

Justice delayed is justice denied. Topics effected by the default outcome (affirmed by an equally divided court) include: ACA contraceptive mandate, the legality of mandatory union dues, and whether legislative districts can be apportioned by total (rather than voter only) population under the Equal Protection Clause of the U.S. Const.) and the procedural challenge to the Obama administration’s immigration policy.

Permanent effects often come from temporary situations. Let's hope as Republican Senator Lindsay Graham said earlier tonight, that if the President selects a qualified candidate, he would vote to confirm. All politicians who refuse to give due and careful consideration to any qualified nominee are in derogation of duty, and affirmatively damaging our country.