Supreme Court Justice Antonin Scalia’s
death over the weekend instantaneously raised a plethora of
questions about his eventual replacement, igniting a political
firestorm during an already heated and chaotic election year.
Democrats have been urging President Barack Obama to waste no
time in nominating a successor, to which Obama has responded
that he plans to do just that. On the flip side, Republicans are
imploring the president to give that right to the next commander
in chief.
Partisan bickering and maneuvering aside, one of the finer
details surrounding the conundrum is what, exactly, happens on
the Supreme Court when there are just eight justices and a
ruling ends in a 4-4 stalemate?
Supreme Court Justice Antonin Scalia speaks at Tufts
University in Medford, Mass. (AP Photo/Josh Reynolds, File)
When there are nine justices, it’s relatively simple to
determine which side trumps, as a 5-4 conclusion to a case makes
the majority view clear.
But with eight active justices, the situation changes quite a
bit, though Adam Winkler, a law professor at the University of
California Los Angeles, told
the Guardian that there’s nothing all that rare about only
having eight justices on the bench.
Winkler
noted that, even when there’s a full court comprised of nine
active justices, there are certain cases in which one of them
decides to recuse him or herself, leaving just eight to decide
on a particular case.
“Over American history the size of the court has varied from
six members to 10 members to seven members to nine members,” he
said. “There’s nothing magic about nine.”
President Barack Obama speaks at a town hall styled event at
McKinley Senior High School in Baton Rouge, La., Thursday,
Jan. 14, 2016. (AP Photo/Gerald Herbert)
Winkler also predicted that “there’s almost no chance”
that President Barack Obama
will be able to replace Scalia with a left-of-center
justice, saying that he believes that the Supreme Court will
only have eight justices over the next year.
So, with only eight justices,
a majority decision would be 5-3 rather than 5-4, and if
and when there’s a 4-4 split, the lower court’s decision is
upheld. But there’s an important caveat to that latter
point: that decision isn’t automatically considered legal
precedent.
Essentially, the issue isn’t settled at that point — at
least not in the way it traditionally is when the Supreme
Court makes a definitive, majority decision on a case. That
in mind, there’s already much speculation about the cases in
which Scalia’s absence will make a major difference.
“Votes that … Justice [Scalia] cast in cases that have
not been publicly decided are void,” Tom Goldstein explained
on the SCOTUS blog. ”Of course, if Justice Scalia’s vote
was not necessary to the outcome – for example, if he was in
the dissent or if the majority included more than five
Justices – then the case will still be decided, only by an
eight-member court.”
This essentially means that any
preliminary votes for which Scalia told the other
justices his intent are now invalid and have no legal
standing.
Of course, the justices
could also vote to hear the case a second time when a
new nominee replaces Scalia in the future as well.
In this March 8, 2012 file phoo, Supreme Court Justice
Antonin Scalia speaks at Wesleyan University in
Middletown, Conn (AP)
Goldstein
specifically referenced the Friedrichs v. California
Teachers Association case involving mandatory union fees,
explaining that the Supreme Court — before Scalia’s death —
was poised to limit mandatory contributions, but that the
court is likely now divided 4-4.
If this is the case, California teacher Rebecca
Friedrichs’ argument that forced dues violate her free
speech will likely not stand, as it was struck down by the
lower court; a tie among the Supreme Court justices would
mean that the lower court ruling would stand.
There are other big cases this term as well for which
Scalia’s absence will potentially make a difference,
including an affirmative action case involving the
University of Texas, a battle over Texas abortion
restrictions, the continued debate over the contraceptive
mandate and Obama’s immigration plans,
CNN reported.