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The sudden death of Supreme Court Justice Antonin Scalia means the Supreme Court is now evenly divided between conservatives and liberals. And that means there could be more 4-4 decisions coming, particularly on consequential cases.
In the case of a tie, the lower court's decision is upheld and no precedent is set. The Court traditionally does not issue an opinion.
The Court would have the option to rehear the cases in the following term, and SCOTUSBlog publisher Tom Goldstein argues that's the most likely eventual outcome. But the Court has a huge amount of discretion on what to do next, and if Congress doesn't confirm a replacement quickly, that could affect the likelihood of the cases being reargued.
Here are some of the most consequential cases still pending before the Court. It's not clear that all of them were likely to result in 5-4 splits, but here's what could happen if they end up as a 4-4 tie:
- Whole Woman's Health v. Cole: A challenge to the Texas law that has closed about half of the state's abortion clinics since 2013, and the first major abortion case in nearly a decade. The Fifth Circuit Court of Appeals ruled largely in favor of the law, meaning a tie would leave it in place without setting a new precedent on abortion.
- US v. Texas: The challenge to President Obama's 2014 executive action on immigration, which would protect about 4 million people — including unauthorized immigrants who'd come to the US as children and are now older than 30, as well as some parents of US citizens or permanent residents — from deportation. The Fifth Circuit Court of Appeals ruled against the Obama administration in November; a tie would uphold that decision.
- Evenwel v. Abbott: A case considering whether all residents or only eligible voters should be counted when drawing state legislative districts. Counting those who are not eligible to vote — convicted felons, immigrants who are not citizens, and children, among others — generally helps Democrats; not counting those people would give a bigger voice to white and rural voters. The lower court, the US District Court for the Western District of Texas, held that everyone should be counted; a tie would uphold that.
- Friedrichs v. California Teachers Association: A case challenging whether public employees who are not members of a union can be required to pay an "agency fee" or "fair share fee" to cover the cost of collective bargaining for the contract that also applies to them. The Ninth Circuit Court of Appeals ruled against the California non-union teachers who argued they should not have to pay, but they did so for the case to be appealed to the Supreme Court, which would have to overturn a precedent to find in the non-union teachers' favor.
- Zubik v. Burwell: A challenge to the Obama administration's accommodation for religious nonprofits that object to being required to offer health insurance covering birth control. (The nonprofits themselves are not required to pay for the coverage, but they must submit a form so that the insurers will do so.) The Third Circuit Court of Appeals found the accommodation is not a burden on religious freedom.
- Fisher v. Texas: A challenge to Texas's use of affirmative action in admissions that the Court has already decided once before, in 2013, and sent back to a lower court. Justice Elena Kagan has recused herself because she dealt with the case as solicitor general, meaning only seven justices will be voting on the final opinion and a tie is not possible. Justice Anthony Kennedy is the swing vote, with the decision likely to be 4-3.
