Justice Scalia's Death is Affecting How Precedent Is - and Is Not - Being Set

In a fascinating article posted by CNN on April 4, 2016, Ariane de Vogue discusses the potentially troubling fact that since Justice Antonin Scalia’s death on February 13, 2016, there have already been two 4-4 opinions issued in Supreme Court cases, one of which was handed down in a higher profile case that was initially predicted to overturn a 40 year-old precedent – a prediction that, in light of Scalia’s passing, did not ultimately come true.

The occurrence of such a split, and especially the fact that such a split has now happened twice, indicates that these splits may become more commonplace in the future and that the possibility for national precedent to be set may be less likely.

De Vogue also noted that other predictions made by court watchers insofar as the areas of same-sex marriage and healthcare may now affected by Scalia’s death as well, particularly because the remaining eight justices may continue to be only eight justices for the remainder of this term and into the next.

Still outstanding during the current term, however, are high-profile cases concerning issues like abortion and immigration, and when you have four liberal justices facing off against four conservative justices, it is easy to see how a 4-4 split could certainly become more of a regular occurrence.

In de Vogue’s article, she quoted White House Counsel Neil Eggleston as saying that the Supreme Court actually looks to see if the lower Courts are split on an issue before taking a case on. This is because a 4-4 split automatically affirms the lower Court and cannot possibly set a national precedent, so a group that is divided such as this one is may not be able to solve a circuit split.

Justice Stephen Breyer and Samuel Alito have both stated that a 4-4 split isn’t as big of a concern as it may be made out to be, mainly because the Court has functioned with such vacancies and splits of justices in the past. However, de Vogue notes that CNN Legal Analyst Stephen I. Vladeck says that while that may be true, it has been rarer for a) the Court to be so evenly divided on such high-profile issues, and b) for a vacant seat to deprive either side of the majority vote.

And it’s not just the majority vote that has been affected by Scalia’s death; oral arguments have been feeling the sting of his loss as well, mainly because Scalia was known for throwing questions at attorneys that could alter the course of where the arguments were going on either side of the issue. In other words, you really had to be on top of your game as a litigator if you knew you were about to face off against Justice Scalia that day.

Though, it is also speculated that Scalia’s death may have been the inspiration for Justice Clarence Thomas’ recent asking of a question for the first time in a decade, as it is believed that Thomas may have felt that this was something Scalia would have done. So counselors going up against Justice Thomas may find it best to keep their A-game as sharp as if they were defending their case to Justice Scalia.

No matter how you may have felt about Justice Scalia, it is undeniable that his death has sent shockwaves through the legal community - potentially going so far as to effect whether or not national legal precedents will be set going forward. That is huge. To say that Scalia’s death had a significant impact on the practice of law is a severe understatement.