One of the first ways that Justice Scalia’s absence will be felt in Court decisions is on emergency motions and stay request which make its way to the Supreme Court on an expedited basis, what Prof. Will Baude calls the Supreme court’s “shadow docket.” Already the practices here are opaque. The Court often rules without giving reasons, or it gives cryptic reasons, and sometimes it is not even clear which standard of review the Court applies. I’ve delved into this a bit because the Court seems to have adopted a special rule for emergency election law cases, which I’ve dubbed the Purcell principle, which counsels against judicial changes to election rules in the period just before the election.
In fact, the Court has a pending emergency motion in an election law case before it right now. It is a North Carolina congressional redistricting case. A special three-judge district court held that two of the congressional districts were unconstitutional “racial gerrymanders” (more on the substance of such a claim here). The district court ordered lines to be redrawn within two weeks by the NC Legislature. But absentee balloting is already underway. The state, raising the Purcell principle, argues for the Supreme Court to stay the order, in effect allowing the 2016 elections to go forward under the old lines.
Suppose (we don’t know this) that the Court would have been 5-4 in favor of granting a stay, with Justice Scalia in the majority and the Court dividing on conservative-liberal lines. Now imagine that with Scalia’s loss, the Court is 4-4. Then the Court would deny the stay. The Court likely would issue an order denying the stay without giving the vote—that is its usual practice. But a denial could also mean the vote was 3-5, or even 0-8. We just won’t know what Scalia’s loss means.
And think of the unprecedented order the Court issued a few weeks ago in the power plant case, where the Court stopped the environmental rule from going into effect even before the DC Circuit has had a chance to rule on the question. That vote was 5-4. If the vote came this week, that power plant rule would still be in effect. I think it would be bad form for the SG to ask for rehearing on that stay order, but on the merits, the Court would be dividing 4-4. (Update: On the power plant post, Chris Geidner helpfully points out that a rehearing petition would need a majority vote, which would not be there.)
So much more goes on behind the scenes at the Court that we never see, because the Court is the least transparent branch of government, by far.
Justice Scalia’s loss then already may be having great effects that we cannot measure.