What happens if no one replaces Justice Scalia before the next presidential election? In most cases, it won’t make a procedural difference as the remaining Justices continue to hear arguments and vote on cases. If a majority of the remaining Justices vote one way or another, it is business as usual.
However, since there are now an even number of Justices, it is conceivable that several cases, especially those that tend to divide people along political lines, may end in a tie. If that happens, the Supreme Court does not issue an opinion, and either the ruling of the lower court remains the law, or the Court holds the case to be decided at a later date.
What does that mean for labor and employment law this term? Well, among other things, there is a major labor union case currently before the Court. At issue is whether certain public employees who do not participate in a union can be compelled to pay the union fees for the bargaining services it provides.
Ruling in favor of the non-participating employees could keep money out of already struggling union coffers and further weaken public and non-public unions. But, the lower court ruled in favor of the unions. Oral arguments occurred in January while Justice Scalia was still alive, and several court watchers believed the Court was going to overturn the ruling in a 5-4 decision. Now, that ruling may very well be 4-4 turning a loss for unions into a big win.
The case is Friedrichs v. California Teachers Association.
Other cases that would likely end in a 4-4 vote include cases related to abortion, voting rights, immigration, and Obamacare.