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Feb. 17 — The long-term consequences of Justice Antonin Scalia's death are still playing out in the political arena. But there are immediate effects for cases already pending before the U.S. Supreme Court.
Scalia's absence creates the possibility that the justices will split 4-4 in decisions, which leaves in place the lower court's ruling.
The Supreme Court justices, however, care about the court as an institution, and will try to avoid the appearance that it isn't functioning properly, former Scalia clerk Richard Bernstein of Willkie Farr & Gallagher LLP, Washington, told Bloomberg BNA.
Bernstein clerked on an eight-justice court during the 1987 term, when there was a seven-and-a-half month vacancy.
Drawing on that experience, Bernstein said the court could order reargument in cases already granted cert.
For cases still awaiting a cert. grant, the court is likely to grant fewer petitions, and only less controversial ones, Bernstein said.
The possibility of an even split arises even when there is not vacancy. That's because justices recuse themselves from time to time, Bernstein said.
An equally divided court was a real possibility in Fisher v. Univ. of Texas at Austin, No. 14-981 , prior to Scalia's unexpected death, because Justice Elena Kagan was recused from that affirmative action case.
In recusal situations, there is nothing to do except issue the 4-4 decision, Bernstein said. But when there is a vacancy, the justices have some options.
That's because a new justice could break the tie once they are confirmed, Bernstein said.
Where that is a possibility, the court will often order reargument for when a new justice has been confirmed, he said.
Bernstein said reargument—as opposed to simply delaying argument—is likely in cases that haven't been heard yet this term. The justices will want to make sure they are actually equally divided, he said.
A prime example is the upcoming abortion case set to be argued March 2, Whole Woman's Health v. Hellerstedt, No. 15-274 .
That's a case where Justice Anthony M. Kennedy could join the more liberal justices, resulting in a 5–3 opinion, editor-in-chief of the Cato Supreme Court Review's Ilya Shapiro told Bloomberg BNA.
So the need for reargument may not even come up in that case, Shapiro said.
In contrast, reargument is a real possibility for the court's most recent Affordable Care Act case, Zubik v. Burwell, No. 14-1418 , Shapiro said.
That's a case that was likely to split 5-4 with Scalia in the majority, he said.
But a 4-4 decision in Zubik would be problematic because the circuits are split over whether the Obama administration's workaround for religious nonprofits from the ACA's contraceptive mandate impermissibly burdens the nonprofits' religious exercise.
Therefore, reargument in that case—set to be heard for the first time by the justices on March 23—is extremely likely, Shapiro said.
But Bernstein said the justices can try to avoid reargument and an equally divided court by deciding cases narrowly. The justices will try to decide the case on whatever ground can garner a majority, he said.
Where 4-4 decisions are unavoidable though, the court will go ahead and issue them, Bernstein said.
If there is a circuit split on the issue, it will probably come back to the court, he said. If not, it probably isn't all that important, he added.
Going forward, the court is likely to try to head off controversial cases at the cert. stage, Bernstein said.
Based on his experience with an eight-member court, Bernstein predicted the court will grant cert. in fewer cases, and in less controversial ones, until it is back to full power.
But Bernstein was careful to distinguish the situations surrounding the eight-member court he clerked for and the current one.
During Bernstein's Supreme Court clerkship, the seat left open by Justice Lewis Powell Jr. on June 26, 1987, remained vacant until Kennedy took office on Feb. 18, 1988.
Although that was the time of the contentious confirmation process involving Robert Bork, the “world hadn't gone nuts,” Bernstein said.
Bernstein said there is a possibility for a long vacancy this time around because of the controversy over whether a new justice should be nominated and confirmed now, or whether it should wait until after the upcoming presidential election.
If the nomination and confirmation is put off until the next president takes office, that would mean Scalia's seat would be filled March 2017, at the earliest, Bernstein said.
That long of a vacancy could make the options for avoiding equally divided decisions more difficult, he said.
The uncertainty surrounding the timing of the next justice is why we likely won't hear about any potential rearguments until the very end of the term, Shapiro said.
The court won't act immediately—they'll want to see how the confirmation process is going, Shapiro said.
But Shapiro emphasized that most cases the court decides are not 5–4 decisions. So the prospect of a 4-4 decision exists with only a handful of cases, he said.
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