Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School. Follow him on Twitter @Richard_Primus.

The passing of Justice Antonin Scalia could mark a turning point in the history of American law. Few Justices changed the constitutional-law conversation as much as Scalia did, and the possibility of President Barack Obama’s appointing a replacement could give the court a majority of Democratic appointees for the first time in more than 40 years, promising a big legal shift in the years to come. But even before the full impact of Scalia’s departure can be assessed, his absence is almost certain to change the outcomes of several major cases pending this year before the court, on issues ranging from election law to church and state.

Already, Senate Majority Leader Mitch McConnell has said the Senate should not confirm Scalia’s replacement until after the presidential election in November. Whether he can really stall that long remains to be seen, but even assuming that Obama succeeds in choosing Scalia’s successor, that person will not take the bench for a while. That means that, for the next several months, readers of Supreme Court opinions are likely to find themselves encountering the phrase “affirmed by an equally divided court.” When the court has a full complement of nine justices and everyone votes, there are no ties. But when a justice is recused or otherwise not voting, the court needs a rule to decide what happens to a case in the event of a deadlock. The rule is that a tie vote affirms the decision below, but without setting a precedent for the future. That means that who won in the lower courts matters a great deal. This year, left-leaning decisions in the lower courts are almost sure to survive review in a Supreme Court without Scalia.


One leading example: Friedrichs v. California Teachers Association, a major case in the law of public-sector labor unions. For decades, prevailing judicial doctrine has authorized public-sector unions to operate on an “agency shop” basis, whereby a union represents, and collects dues from, all employees in a certain occupational category within a workplace. Recently, the court has chipped away at these arrangements, generally in the name of the free speech rights of employees; the theory is that individual employees should not have to subsidize advocacy with which they disagree—even if that advocacy redounds to their advantage in negotiations with the employer. Many observers expected Friedrichs to be a watershed case in which the court would overrule a landmark 1977 decision favoring the unions and rule on First Amendment grounds that employees need not contribute funds toward union activities unless they affirmatively choose to do so. That would drastically reduce the political power of unions, because it would cut sharply into their financial resources. But without Scalia, it’s extremely unlikely that the court could muster five votes to overrule the existing doctrine. The union won this case in the court below, and that means that it will emerge victorious, or at least surviving, in a Supreme Court with only eight members.

Much the same is true in two big cases raising issues of election law. Evenwel v. Abbott raises a question about the one-person, one-vote rule in electoral districting: Does the Constitution require states to equalize the number of persons in each voting district or the number of voters? In the past, states have pretty much uniformly equalized the number of persons. A shift to equalizing the number of voters could have significant effects on the composition of legislatures, both at the state level and in Congress; geographic areas with high numbers of people who cannot vote, such as children, noncitizens and disfranchised former felons, as well as districts with relatively low voter turnout, would lose voting power. Were Scalia participating, the challengers in Evenwel—who want to compel states to shift to equalizing the number of voters—would have a plausible chance of success. But the court below held that states are within their rights to continue using total population as the metric. It is hard to see where the challengers could get five votes for reversal without Scalia, and a 4-4 tie would permit the states to continue as before.

Similarly, Harris v. Arizona Independent Redistricting Commission features a challenge to the map of Arizona’s electoral districts. The conventional wisdom (which was probably accurate) foresaw five votes against the commission that drew the map, including Scalia’s. But again, because the commission prevailed in the lower court, it is almost sure to emerge victorious now, because it can probably count on no worse than a tie at the Supreme Court.

Then there are the major church-state cases to be argued later this spring. Most prominent is the cluster of cases—Zubik v. Burwell is the headliner—in which religious organizations are challenging the Affordable Care Act’s contraceptive coverage mandate. The legal questions here are intricate, and the challengers were not guaranteed victory even with Scalia on the bench. But their likelihood of success seems remote without him there. In addition, the important case of Trinity Lutheran Church v. Pauley raises the question of whether the government can exclude churches from programs that distribute benefits to other private parties. Once again, the party that was counting on Scalia’s vote lost in the court below, and without him the churches are almost sure to be unable to muster five votes for reversal.

To be sure, there are big cases where Scalia’s absence could make no difference. One is Whole Woman’s Health v. Hellerstedt, a case about whether Texas may enforce a highly restrictive abortion law. Another is the blockbuster immigration case United States v. Texas, where the question is the validity of President Obama’s program of Deferred Action for Parents of Americans and Lawful Permanent Residents. The side that was counting on Scalia—which turns out to be the State of Texas in both cases—prevailed in the lower courts, and those wins will hold up if they can muster four of the eight remaining justices. That means that at least as a voting matter, Scalia’s departure is unlikely to matter: Texas needed five votes with him there, and needs only four without him.

There’s an important caveat to all of this. The court will not have eight justices forever, and when Scalia’s successor takes the bench, the issues could be revisited. A 4-4 tie settles the particular case at bar, but it does not set binding precedent going forward. So even if Scalia’s passing virtually guarantees that, say, the contraceptive mandate will remain legally valid in 2016, it says nothing about whether a case brought in 2017 or 2020 might deal the death blow that was avoided previously. But what will actually happen in 2017 and 2020 may be substantially a function of who replaces Scalia. If it is someone to the sitting president’s liking, a series of fortuitous short-term wins could easily become much more permanent victories.