Antonin Scalia is not the first sitting Supreme Court justice to die before retiring, so it’s not as if the broader circumstances facing Washington are unprecedented. Indeed, it was only a decade ago that then-Chief Justice William Rehnquist died during George W. Bush’s second term.
But what is unusual is the prospect of an eight-member court hearing cases for several months – a scenario that now seems likely in light of Republican threats to block any nominee from President Obama, regardless of his or her qualifications or merit.
The result is a messy situation that carries quite a few questions.
Can the Supreme Court continue to work with eight justices instead of nine?
Yes. There is no requirement that the high court must have all nine seats filled in order to hear cases or issue rulings.
Given the ideological makeup of the court, it seems likely we’ll see some 4-4 rulings in the coming months. What happens when there’s a tie?
When there’s a 4-4 split, the Supreme Court’s decision leaves the lower court’s ruling intact. The ties also set no precedent, and in many instances, the justices won’t even issue a written decision.
What about the cases that have already been heard this term, before Antonin Scalia’s passing?
This might be the most interesting of all. It’s possible that the justices have already heard cases and made decisions about their outcome, but the fact remains that no decision is the official decision of the Supreme Court until it’s officially announced. In other words, a 5-4 ruling may have been on the way, but that ruling is now moot – and it will never be released.
We won’t see another 5-4 ruling until the Senate confirms Scalia’s successor.
What about 4-3 rulings?
Oddly enough, there may be one of those. MSNBC’s Irin Carmon noted the affirmative action case, Fisher v. Texas, which is still pending: “Justice Elena Kagan recused herself from the case, having worked on it as solicitor general. That means that if Justice Anthony Kennedy votes to strike down Texas’s affirmative action policy, as many expect him to, the result will likely be a 4-3 majority, [University of Michigan Professor Samuel Bagenstos] said.
What if Senate Republicans refuse to confirm a nominee, and in the fall there’s an election crisis along the lines of Bush v. Gore that results in a Supreme Court case? And the justices themselves are stuck in a 4-4 split?
Let’s jump off that bridge once we get to it.