Two Dissents Will Be Scalia's Final Contribution

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By Kimberly Robinson

Feb. 16 — Justice Antonin Scalia's last opinions will almost certainly be two Jan. 25 dissents.

The opinions came in FERC v. Elec. Power Supply Ass'n, 84 U.S.L.W. 4084, 2016 BL 18590 (U.S. Jan. 25, 2016) and Montgomery v. Louisiana, 84 U.S.L.W. 4063, 2016 BL 18591 (U.S. Jan. 25, 2016) .

A 2012 U.S. Court of Appeals for the Ninth Circuit opinion was issued by a recently deceased judge, buth that's unlikely to happen here, constitutional law professor Josh Blackman told Bloomberg BNA.

Any cases that were assigned to Scalia will need to be reassigned, Blackman, a professor at South Texas College of Law, Houston, said on his blog

Votes Void

There are 24 Supreme Court cases that have been argued but are still awaiting an opinion, according to research conducted by Bloomberg BNA.

Presumably the justices have been working on some of these opinions during their four-week break, which began at the end of January.

But any Scalia opinions—whether majority opinions, concurrences or dissents—will now be scrapped.

That's because for “cases that have been argued, and voted on in conference, but not yet decided publicly, Justice Scalia’s votes are voided,” Blackman said on his blog.

American University law professor Stephen Vladeck explained in a Feb. 14 blog post that up until the moment a decision is handed down, the justices' votes are still tentative.

Some Recognition

But on July 13, 2012, the Ninth Circuit issued an opinion by Judge Robert Beezer, who had passed away that March, in Ginsberg v. Nw., Inc., 695 F.3d 873 (9th Cir. 2012).

The decision—which was eventually overturned by the Supreme Court—noted that Beezer “authored and approved the amended opinion before his death.”

Blackman said he doesn't think that will happen here. But Vladeck explained that Scalia could still get recognition from his colleagues.

There's “at least one equivocal precedent for noting a late colleague's views: Justice Frankfurter's dissent in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946) , which closes with the notation that “The late Chief Justice participated in the hearing and disposition of this case and had joined in this dissent.”

Justice Felix Frankfurter's dissent referred to Chief Justice Harlan F. Stone, who served until his death on April 22, 1946, according to The Supreme Court Historical Society.

The next chance for the court to announce any new opinions is when the justices return to the bench Feb. 22.

To contact the reporter on this story: Kimberly Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at