DENVER — With the death of Supreme Court Justice Antonin Scalia, what happens to cases currently on the court’s docket? And could it affect any Colorado cases that are pending?
The U.S. Supreme Court will continue to function as normal, but the process for evenly split opinions can be complicated and the potential of it happening is almost certain.
Scalia’s death leaves an even number of Justice’s on the bench. The court is now divided between liberals and conservatives, 4-4. In the case of a deadlock on opinions, cases would be affected.
“Law likes certainty, so when SCOTUS says this is what the Constitution requires, it has a degree of certainty. Now we have the possibility in a number of areas of just having a good deal of uncertainty,” Metro State University of Denver political science professor Norman Provizer said.
Uncertainty could come up in cases involving Colorado. One, scheduled to be discussed by the justices on Friday, is the Colorado State Board of Education & Douglas County School District v Taxpayers for Public Education. The case involves public aid for religious schools.
Another is a case brought by Nebraska and Oklahoma against Colorado. The neighboring states are asking the court to strike down Colorado’s marijuana laws.
If the Supreme Court chooses to hear either case orally, what would happen if opinions are split? In the case involving public aid to religious schools, a tie would revert to the lower court’s decision.
“So in other words you just let the decision stand that’s been made by the lower court,” Provizer said.
In the pot case, because the Supreme Court is the first court to hear the case, there is no lower court decision and the implications of a deadlock could mean more uncertainty on who’s right under the law.
“The interesting thing is we can’t say, well what did other courts say,” Provizer said.
In either case, Provizer said the longer Scalia’s vacancy goes on, the less beneficial it is to society.
“It’s just really the key areas that are subject to enormous political controversy that there could be some prolonged confusion, uncertainty,” Provizer said.
Since settling on a nine-justice panel, the longest the court has gone without a complete roster is 391 days, in 1969-1970. The average length of vacancy is just more than two months.