What will happen in the court game tied 4-4 ?

The previous thread about Scalia’s death was about the result of his passing and various related liberal v. conservative points of view. This thread is instead intended to focus upon the future court impact assuming the occurrence of a 4-4 tie in the Supreme Court. Although the previous thread has gone off in a tangent, the hoped posting relevancy in this thread is "what will happen in the future with pending cases assuming the Court continues on a course that will result in the near term implications of allowing the lower courts to determine the fate of this country’s legal battle concerning the cases already accepted by the SC?" Since the Senate majority leader has come out strong against an Obama appointee becoming a Justice, what is the probable outcome of allowing Scalia’s replacement being determined by the next administration? Some say the detriments of having a split Court will last 18 months. It will likely only be about one year if the majority party of the next Senate is the same as the president.

It goes without saying that Scalia will in the future have a significant impact on the legal discussions of our time. However, my concern herein is to help better understand what actually will happen in the future without him. My excerpts below are mainly a summary of the article in The Guardian. The discussion is just based on a probable supposition of what if the Supreme Court decision is split. Other recent articles are from truth-out.org, NBR video, FoxNews video, Politico, and USA Today. There are mentioned eight possible cases where a split decision is definitely possible; and Texas residents are directly involved in four of them. Where the result of the case is mentioned below, it is assumed that this lower court ruling is the determining factor with a tie in the SC decision. You can see the lower court determinations heavily favor a liberal view. This is because, of the 13 appeals courts, there is a majority of judges appointed by the Democrats in 9 of them.

The below cases do not include the EPA related case concerning climate change because the lower Federal court still has to decide. However, the tie without Scalia’s recent vote would not cause the executive order for Power Plants to be stayed. It is expected that the EPA order will be modified and the Supreme Court’s stay would then not apply.

1. Unions (Friedrichs v California Teachers Assoc.) : workers protected by public sector unions must pay dues for nonpolitical activities – i.e. collective bargaining – even if they decline to join the union. Likely liberal win when California law remains valid.

2. Voting rights (Evenwel v Abbott): Texas will be forced to count population instead of legal voters for the purpose of determining voting districts. Likely liberal win (but could go either way in the SC vote.)

3. Abortion (Whole Woman’s Health v Cole) : The Texas law is upheld in full and would in effect overrule Roe v Wade, giving states a roadmap to ban abortion by making it impossible for abortion clinics to operate. Likely liberal win if Kennedy votes(?) to not accept the Texas law.

4. Class actions (Tyson Foods v Bouaphakeo): The court will almost certainly deadlock, and the workers win out in favor of making it less difficult for employees to file class action lawsuits involving overtime pay. Likely liberal win.

5. Religious freedom & contraception (Zubik v Burwell) : Religious objectors will have to accommodate providing contraception to women as part of employer-provided health insurance in Obamacare. Probably at least a partial liberal win but the outcome could become messy if a compromise SC ruling happens.

6. Affirmative action (Fisher v UT@ Austin) : Because there is a justice recusal already, Scalia might have voted to make the tie 4-4. Likely outcome is very unclear in forcing UT to reject its affirmative action program.

7. Immigration (US v Texas) : Obama’s executive order to prevent deportation of certain illegal immigrants would be unlawful. Likely conservative win but outcome is very uncertain.

8. Death penalty (Foster v Chatman) : A 4-4 tie would allow the conviction to stand where a black man was convicted by an all-white jury after black jurors were systematically excluded by the prosecution. Likely outcome: either returned on a technicality or liberal win.

 

Thanks for compiling this, as I was trying to figure out what all of the recent cases were going to be. I wouldn't even go as far to assume that it's going to be 4-4 for most of those... I think Kennedy will make it 5-3 on some of the more socially progressive ones.

 

I agree with Horns11. Some of these might be split decisions, but I could see Kennedy voting with the liberals on possibly half of these.

 

In 7 of the 8 cases you discuss, Scalia's death will have only a temporary impact because either (1) the decision will come out 5-3 so his vote wouldn't have mattered, or (2) the decision will be 4-4, leaving the lower court ruling in place but not creating precedent. When the issue comes up again, the new justice will resolve the issue.

One of the cases is more interesting:

If this decision goes 4-3, that becomes a binding precedent on all lower courts nationally. The new justice might push the court balance back to 4-4, but that wouldn't be enough to reverse the precedent.

 

My prediction of Stevens' vote:

• with the liberals on #2 (voting rights), #3 (abortion restrictions), #6 (affirmative action), #7 (deportation)
• with the conservatives on #1 (unions), #5 (contraception funding), #8 (death penalty)

I have no read on #4 (class action).

 

I presume you mean Kennedy's vote. I predict he'll vote with the conservatives on class actions. I don't think he's generally sympathetic to "God's Work."

 

D'Oh.

 

This compilation of possible 4-4 votes came from The Guardian article referenced. I think they looked at it from the perspective of "this is the lot before it is culled down" , i.e., the possibilities. Judge Nap.. (Fox News) believed that Roberts would do all he can to keep the court's time meaningful. He mentioned a few things Roberts might do to guarantee that cases would not end up tied. Other sources did not list this many possibles.