So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.
The short answer is it depends and in all instances isn’t entirely clear.
If a case isn’t 4-4 it will be decided as usual with only eight Justices.
If a case is going to be decided 4-4 the Court has two choices: wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.
SCOTUSblog publisher Tom Goldstein predicts that the Court will rehear 4-4 cases.
It is of course impossible to know which cases would have been 5-4 had Justice Scalia lived. But a good rule of thumb is that particularly important, controversial cases are often 5-4. Six cases this term meet just about any definition of important and controversial.
Let’s take a look at the five such cases affecting state and local government. Unsurprisingly, Justice Kennedy’s vote probably will be key in all of them.
Public Sector Unions
In Friedrichs v. California Teachers Association the Court will decide whether to overrule Abood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs.
Justices Scalia and Kennedy joined two previous Justice Alito opinions criticizing Abood. Unless Justice Kennedy has a change of heart or one of the other conservative Justices has second thoughts about overturning precedent regardless of how much he dislikes it, this case is likely to be reheard.
Immigration
In United States v. Texas the Court will decide whether the President’s deferred action immigration program violates federal law or is unconstitutional.
The stakes are the highest if the Court is 4-4 in this case. The federal government and the Supreme Court worked hard to make sure this case got on the docket this term because a new President could scrap the program. If this case is reargued, unless the new Justice joined the Court next fall, it seems unlikely the Court could render an opinion before January 2017.
One-person-one-vote
The issue in Evenwel v. Abbott is whether voting population must be the metric in ensuring that state and local legislative districts comply with the “one-person one-vote.”
Evenwell is considered the most important voting rights case in decades. Using voting population as the metric tends to favor more rural, Republican areas. This case seems ripe for rehearing unless Justice Kennedy sides with the liberals.
Abortion
The issue in Whole Women’s Health v. Cole is whether Texas’s admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions.
The conventional wisdom on abortion is that only Justice Kennedy’s votes is at play. If he is willing to strike down Texas’s laws this case will not be reheard. The fact that Justice Kennedy voted to prevent these laws from going into place before the Court decided to review the case indicates he may be skeptical of the laws, making a 4-4 vote less likely.
Affirmative action
In Fisher v. University of Texas at Austin the Court has agreed to decide whether UT-Austin’s race-conscious admissions policy is unconstitutional.
More conservatives Justices are probably as likely to win this case with or without Justice Scalia. Justice Kagan is recused and Justice Kennedy is no fan of affirmative action. But the Court heard this case once before rendering a narrow 7-1 opinion against UT-Austin. You never know with cases involving race.