The recent and unexpected death of Justice Antonin Scalia at a West Texas ranch may affect the decisions in several employment-related cases pending before the U.S. Supreme Court this term. The nine-member body—now reduced to eight—faces a variety of controversial issues predicted to divide the Court along ideological lines. Prior to Scalia’s passing, the Court generally could be described as containing four conservatives and four liberals, with Justice Anthony Kennedy providing the swing vote. Without Scalia, the influence of the conservative wing is weakened. A 4-4 decision will result if Kennedy joins the remaining conservatives in any vote opposite the perceived liberal justices.
When the Court is split 4-4, the lower court’s decision stands, and no national precedent is set. Moreover, any circuit split the Court might have wished to resolve will remain unchanged. Rather than render a 4-4 decision, the Court could order the case to be reheard next term—when Continue reading