The legal and political worlds are trying to game out what Justice Antonin Scalia’s death will mean for the presidential race and the future of the America’s jurisprudence. Clearly if Scalia, who was a consistent vote on the conservative side of the bench, is replaced by a liberal Justice, then the entire ideological balance of the Supreme Court is flipped on its head. If a Republican President appoints Scalia’s ideological doppelganger, then the conservative majority could continue for decades.
In the meantime, the nation is facing the prospect of a tied Supreme Court until the next appointee is confirmed—which could be a year away if Senate Majority Leader McConnell persists in blocking any Supreme Court nominee from President Obama. In the short term, the lack of a ninth Justice could mean that many cases the Supreme Court already had on its docket will end in ties. When the Supreme Court ties four-to-four, the lower court’s decision is affirmed.
One of the cases that likely to end in a tie is Friedrichs v. California Teachers Association. This case asked “whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.” A ruling against the union—which was quite likely before Justice Scalia’s death—could have crippled public sector unions. But the union won its case below. And so if Friedrichs ties, this would mean that this union (and by extension all public sector unions) would win again.
Another case that could be headed to a tie is Evenwel v. Abbott. This case is an attempt by conservatives in Texas to dismantle the core democratic principle of “one-person, one-vote.” The conservative justices seemed eerily open to this possibility at oral argument in Evenwel. Who knows whether there would have been the will to reverse the precedent of Reynolds v. Sims (1964), and thereby change the way every state redistricts in an election year. But without Scalia, Evenwel could be a deadlock. The lower court upheld the “one-person, one-vote” principle. A tie at the Supreme Court would keep this piece of jurisprudence intact.
But the man who may really be ruing Scalia’s death is former Virginia Gov. Robert McDonnell. Two years ago, McDonnell was convicted of all 11 corruption-related counts brought against him. He was sentenced to two years in jail. The U.S. Court of Appeals for the Fourth Circuit unanimously affirmed his conviction. But just last month the Supreme Court granted cert. in McDonnell’s case.
At issue in McDonnell’s case is the scope of “honest services” corruption. His case may give the Supreme Court the opportunity to significantly limit what counts as political corruption. But without Justice Scalia, McDonnell’s fate is likely in the hands of Justice Ruth Bader Ginsburg, who authored the last big honest services case, called Skilling, in 2010. The case looked at the conviction of former Enron CEO Jeffrey Skilling, and narrowed what counted as honest services fraud. Later, Skilling reached an agreement with the government to reduce his jail sentence from 24 years to 14.
So McDonnell may yet get out of jail free if the Court goes further down the Skilling path. But if Justice Ginsburg feels differently about honest services for an elected official instead of a CEO, then McDonnell’s case could also be on the road to a Supreme Court tie. A Supreme Court tie in McDonnell v. U.S. would mean that the Fourth Circuit’s ruling stands. And McDonnell would soon be the latest star of “Orange is the New Black.”
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.