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Noah Feldman

Scalia's Death Probably Flips Big Cases

The extinction of unions and affirmative-action programs seems less likely now.
The arguments will go on.

The arguments will go on.

Photographer: Drew Angerer/Getty Images

How will the death of Justice Antonin Scalia affect the major cases before the U.S. Supreme Court this term, all of which are expected to be decided by the end of June? The answer doesn’t depend entirely on how Scalia would’ve voted. It also depends on a necessary rule of procedure: When the Supreme Court is divided equally, it upholds the decision below.

Applying this dual analysis to five major cases in the pipeline yields some surprising results. The issues involved are: fees in lieu of union dues for nonunion workers, the University of Texas’s affirmative-action admissions program, Texas’s restrictive abortion law, President Barack Obama’s executive action on immigration, and a group of nuns’ demand to be exempted from filing a certificate so they won’t have to pay for employees’ contraceptive insurance under the Affordable Care Act. By my reckoning, most of these cases now have a strong chance to come out differently than they would’ve had Scalia lived through the end of the term.