It has been four months since the untimely death of Justice Antonin Scalia. Over that four months, we have gotten some proof about how important a full Supreme Court is to a functioning court. Today, we got more reminders.
In March, we learned that, in two cases heard before Justice Scalia’s death, the remaining eight justices were deadlocked 4-4, meaning that the decision of the lower court stood. One of these two cases involved a First Amendment challenge to mandatory union dues for public employees. The petitioners (the parties that lost in the lower court) in both cases have asked for rehearing, and the Supreme Court has not yet decided whether to grant rehearing. Today, we learned that two more cases had ended in a 4-4 tie. One of the two was a December case involving the jurisdiction of tribal court. The other (and the first deadlocked case argued after Justice Scalia’s death) was United States v. Texas — the immigration policy case. (Additionally, today saw a decision in the Affirmative Action case which I will discuss later this weekend.)
From a perspective of judicial politics at its most fundamental, the 4-4 tie was almost inevitable. The four conservative justices were best served with a 4-4 tie avoiding the need to write an opinion that would have expanded the circumstances in which states could sue the federal government over policy differences or which cut into executive power. The only chance for an opinion in this case would have been if the four liberals would have been willing to join an opinion greatly restricting the ability of states to sue the federal government. A holding that Texas did not meet the current standard (while legally correct) was not one that any of the conservative justices was interested in joining.
Even assuming that the Supreme Court does not have any other 4-4 ties in the three cases that will probably be issued on Monday, four cases out of seventy is still a significant impact. More significant, however, is the lack of new cases for the fall. Before Justice Scalia died, there were five carry-over cases from January. Since Justice Scalia died, the Supreme Court has added thirteen cases. While the last order list before the summer recess tends to have a significant number of new cases added to the argument docket for the next term, the Supreme Court is significantly behind its normal case load for the new term. With thirty argument slots available for the fall, the Supreme Court would need to grant argument on twelve cases this upcoming week to fill the argument calendar. In the previous twelve years, it has averaged granting slightly under nine cases for argument in the last week before its summer recess. There clearly has been an impact from the prolonged vacancy, and waiting until November or next Spring will make it work.
Aside from the problem of eight justices, there is the practical effect of the 4-4 tie on immigration. The 4-4 tie means that the current preliminary injunction stays in effect until the trial on the merits. Particularly if the Supreme Court does not resolve the pending motions for rehearing before the summer recess, it is likely that the Obama Administration will file for rehearing just in case the motions are being held for a justice-to-be-confirmed-later. Even if the Obama Administration does file for rehearing, there will be a new round of appeals on the final judgment on the merits of the policy. Since it is likely that some variation of the current policy will be the policy under the H. Clinton Administration, this issue will probably return to the Supreme Court in two years or so. However, waiting four years for a sensible immigration policy is insane, but then so is waiting twelve months to fill a vacancy on the United States Supreme Court.
