Hours after the death of Supreme Court Justice Antonin Scalia was reported on Saturday, Feb. 13, Professor Charles Tiefer published a column in Forbes.com, “How the U.S. Supreme Court Will Function Without Justice Scalia”
The biggest question following Scalia’s death, Tiefer said, was how the court would decide several ideologically divided cases with just eight justices.
Wrote Tiefer: “On many cases, the most common ideological divide on the Supreme Court will likely be 4-4. A case that concludes with a 4-4 vote would affirm the decision of the lower court, but without an opinion. A 4-4 decision is not considered precedent to govern future Supreme Court cases. The individual case gets decided, but – in the areas that are closely divided ideologically – the corpus of the law will basically be on autopilot, with no one at the wheel.”
Tiefer addressed two other questions: Can the president nominate a new justice and can the GOP-majority Senate not act on the nomination?
“The answer to both questions is ‘Yes,’” Tiefer wrote. “The President can say the vacancy should be filled; the Republicans will likely say that the choice should await the Presidential election. Such a nomination would be seen, in an election year, likely as a statement by his party about what kind of person it wants, and perhaps be viewed by the other party as a marker of what kind of person it does not want.”
The vacancy could go unfilled for more than a year, Tiefer said.
“The wild card is if the next President is Democratic and the Senate stays Republican – not at all an implausible outcome. With the increasing polarization as time goes by, there is no telling just how slowly a controversial nomination would get through the Republican Senate. The days when new Presidents had a honeymoon are long gone. Add to that this possibility: if a controversial nomination were withdrawn or defeated, then a second nomination would have to be made and considered. In that case, we might be talking about a vacancy until mid-2017.”
Before joining the University of Baltimore School of Law faculty in 1995, Tiefer served as solicitor and deputy general counsel of the U.S. House of Representatives for 11 years.
Click here to access the archive of Tiefer’s Forbes.com columns.