In practical terms, however, Scalia’s absence was felt in ways different than most people assume: his vote wouldn’t have changed all that many outcomes. For example, of the major cases, only Friedrichs v. California Teachers Association would have come out the other way with Scalia’s participation. In Friedrichs, five justices seemed poised to strike down mandatory “agency fees” for public‐sector nonunion members, but that would‐be reversal of the lower court became a 4–4 affirmance without opinion. Another such 4–4 came in United States v. Texas, the case taking up President Obama’s executive actions on immigration. But there, the affirmance meant that the lower‐court injunction stands, which is surely the position Justice Scalia would’ve taken. Yes, a five‐justice majority would have produced an opinion, but at best that opinion would be useful as a precedent for some future case; the practical result would be what it is now.
The other “big” cases similarly wouldn’t have changed. In Fisher v. UT‐Austin II, Justice Anthony Kennedy surprisingly voted to uphold a use of racial preferences in college admissions for the first time. But Justice Scalia’s vote would’ve just made this into another 4–4 case—Justice Elena Kagan was recused—so the lower‐court ruling for the university would still have stood.
In Whole Women’s Health v. Hellerstedt, Kennedy again went left—striking down an abortion regulation for the first time since Planned Parenthood v. Casey—but that just means that Scalia’s inclusion would’ve been on the dissenting side of a 5–4 split. Even Zubik v. Burwell, which involved the application of Obamacare’s contraceptive mandate to nonprofit religious groups, turned out to be a unanimous punt. While Scalia would likely have made this a cleaner 5–4 ruling against the government—Hobby Lobby redux—an 8–0 instruction to the lower courts to facilitate a workable compromise is in fact a win for the challengers given the case dynamics.
And then there were the true unanimous rulings, deferring to states on implementing the “one person, one vote” principle in Evenwel v. Abbott and reversing a public‐corruption conviction due to failure to prove a quid pro quo in McDonnell v. United States. Justice Scalia may have contributed some interesting writings here—as he would have in many the other cases—but the fact remains that his vote wouldn’t changed the final result.
Moreover, even if President Obama’s nominee to fill the vacancy left by Scalia’s departure had been confirmed in due course, Merrick Garland wouldn’t have joined the Court in time to considerany of this term’s cases.
Now, it’s absolutely true that Scalia’s absence has affected the Court’s decisionmaking regarding future cases to review. It takes four votes to grant “cert,” and thus far the justices have been much more reluctant in counting to four, as well as declining cases with high probabilities of 4–4 splits (because why bother?). But some of this profile‐lowering is a natural regression to the mean: after five straight years of “terms of the century”—covering Obamacare, voting rights, abortion, affirmative action, campaign finance, and seemingly every other hot‐button legal issues under the sun—this fall’s crazy political scene will be accompanied by the typically more mundane legal one.
In short, Antonin Scalia’s death has had and will continue to have repercussions on our law and politics—but its least significance was on the cases he left behind.
