The loss of Justice Antonin Scalia will have an immediate impact on the Supreme Court.
Votes that Scalia has cast but which have not yet been made public will be voided if the justice’s vote is a deciding one, according to legal experts.
“If there was a case where there was a 5-4 decision, and he was that fifth vote — but they hadn’t issued their opinions yet, that will have to be a do-over,” explained Carrie Severino, chief counsel for the conservative Judicial Crisis Network.
However, upcoming votes in which the court will now be split 4-4 will still be heard.
“There are tons of cases where, because of recusals, the Court hears it with just eight justices,” Severino said.
Ties, then as now, simply mean the case reverts back to the lower court’s decision, as if the Supreme Court had never heard the case.
“Because it is very unlikely that a replacement will be appointed this term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court,” Tom Goldstein explained on scotusblog.com.
Some of those likely ties are due to be heard by the Scalia-less Supreme Court as early as March.
They include cases involving employer obligation to provide contraception coverage, a case involving the limiting of mandatory union contributions, and another, out of Texas, involving multiple restrictions on abortion.
All of these cases are now likely to receive a tie vote rather than a conservative ruling.