Two months ago, after an hour and a half of presentations by four different lawyers, plus a huge masses of demonstrators outside the courthouse — more people than I’ve ever seen — most commentators expected an anticlimactic affirmance of the lower‐court injunction by an equally divided court. Chief Justice John Roberts clearly wanted to avoid that, even though he personally didn’t seem swayable on either the 26 states’ standing to challenge the Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) or the merits of the administrative‐ and statutory‐law issues. He had successfully managed to avoid a tie in the Obamacare‐contraceptive‐mandate case, Zubik v. Burwell — which the unanimous court remanded to the lower courts so they could essentially facilitate a settlement — but there was no compromise possible here: Either the injunction stayed in place or would be vacated.
Still, Roberts probably prefers that this result was achieved without opinions that would no doubt have contained strong language on both sides. In that sense, the high‐court vacancy was certainly felt in a way that depoliticizes the court itself even as it ratchets up the importance of judicial nominations as an issue in the presidential election. Still, this is yet another case where the practical result of having an eight‐justice court is the same as it would have been with Justice Antonin Scalia’s participation, with the injunction still in place. (And Obama was disingenuous in using this 4–4 split as an argument for why the Senate needs to act on his nomination; he knows well that Merrick Garland could not have been confirmed to hear any cases this term.)