On Saturday, news broke that Supreme Court Justice Antonin Scalia had died at a resort in Texas. As The Washington Post put it, Scalia was “the intellectual cornerstone of the court’s modern conservative wing, whose elegant and acidic opinions inspired a movement of legal thinkers and ignited liberal critics.”
His absence from the SCOTUS legislative bench will no doubt impact the many divisive cases on the court’s docket for the coming months. Among these is a review of Obama’s executive actions on immigration, which allowed some categories of undocumented immigrants to legally stay and work in the country. The high court’s decision on United States v. Texas, in which a lower court barred the implementation of that action, is extremely important—and not just for the millions of undocumented immigrants whose lives remain in limbo pending the decision, via The New York Times:
“The court’s decision could redefine the balance of power between Congress and the president,” said Stephen Yale-Loehr, a law professor at Cornell.
Given that the nomination process for a Supreme Court justice typically takes two-to-three months, this case, which is scheduled for April, likely won’t be presented to a full bench. But the outcome may not be different from what it would have been had Scalia still been around, notes Siobhán O’Grady of Foreign Policy. The ruling might cleanly be divided along ideological lines, resulting in a 4-4 tie among the remaining justices, which would preserve the lower-court decision in United States v. Texas. So Scalia’s likely vote in favor of the lower ruling would have led to the same outcome.
Here’s O’Grady quoting Hiroshi Motomura, a law professor at the University of California at Los Angeles:
Motomura said he believes Scalia would not have voted to reverse the earlier decision, and that in general, “Scalia’s absence matters if and when he would have been a vote to reverse.”
“This means that reversal (thus, allowing DAPA to go into effect) would require five other votes, and his absence won’t change that fact,” he wrote to FP in an e-mail Sunday.
That said, there’s a non-negligible chance that Justices Anthony Kennedy or John Roberts, who don’t always toe the conservative line, won’t favor the states that have contested the legality of Obama’s executive action—especially if their votes in the case of Arizona v. United States are any indication. In that case, Kennedy and Roberts voted with liberal justices to strike down several key features of the Arizona’s anti-immigrant law, S.B. 1070. Kennedy’s majority opinion underscored the federal government’s “broad discretion” in dealing with matters of removal of immigrants in the U.S. illegally.
As The Atlantic’s Andrew Cohen put it:
If the decision in Arizona v. United States wasn't a rout in favor of the Obama Administration—if it wasn't a political and legal disaster for Arizona Gov. Jan Brewer and her fellow travelers—it sure was close.
But there are two more things to consider in event that it’s a 4-4 tie. The first is that that other lower court decisions could complicate matters, as ThinkProgress points out:
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
The second is that a 4-4 tie doesn’t set precedent, which means the case will be re-tried once a new SCOTUS justice is appointed.
All of this comes back to to why the political tussle over the future of Scalia’s seat on the bench is already in full swing. Senate Majority Leader Mitch McConnell has urged his chamber not to confirm anyone President Obama appoints in his last few months in office. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said over the weekend. To this, Senator Elizabeth Warren replied in a statement on Facebook: “In fact, they did — when President Obama won the 2012 election by five million votes.”