What Antonin Scalia’s Death Means for the Supreme Court and the Country

But what about cases with an even split, which is now a real possibility? Four-four decisions are a strange beast in the Supreme Court; they are rare, but they have happened. And when they do, they result in the lower court’s decision remaining the law, but there being no opinion from the Supreme Court and no nationwide effect.

For this term, what this means is that Roe v. Wade is safe. In the abortion case currently before the Court, the Texas federal appeals court found Texas’ abortion restrictions constitutional. If Justice Kennedy, the swing vote, believes the restrictions are unconstitutional, the outcome would be the same now as before: a five-justice majority striking the law down (assuming the four liberals join him, which is a good assumption).

But if he decides the law is constitutional (and the four liberals think it’s unconstitutional), that would result in a 4-4 decision. The appeals court decision would remain, which would mean the Texas restrictions could go into effect. This would be disastrous for the women of Texas. However, many people feared this case would be a vehicle for the Court to overturn Roe v. Wade. A 4-4 decision cannot do that. Roe is safe.

Affirmative action, though, remains on the chopping block. The case before the Supreme Court now involves the University of Texas’ affirmative-action plan. The federal appeals court upheld the plan, finding it constitutional. Without Justice Scalia, there are now seven justices considering that case because Justice Kagan recused herself, having worked on the case before becoming a justice.

What this means is that the calculus from before is the same: Justice Kennedy will be the swing vote. However, this time it will be which side of a 4-3 decision he’ll be on.

Every issue that has a likely liberal/conservative divide and is now pending before the Supreme Court has to be assessed in the same way. With the likelihood of an extended vacancy high, we will probably see a slew of 4-4 decisions coming our way.