Which cases will be affected by the passing of Justice Scalia?

With the passing of Justice Scalia during an election year, the future of the October 2015 term has been thrown into turmoil.  As Tom Goldstein at SCOTUSblog and others summarize, there are a number of potential impacts. Luckily for us, the LexPredict FantasySCOTUS Crowd and Marshall+ Algorithm allow us to evaluate the counterfactual using predictions prior to the death of Scalia. Before we dive into the list of cases that be affected by the passing of Justice Scalia, though, let’s first look at the potential conditions for our counterfactual.

  • Condition A: For cases in which Scalia had already voted but that have not yet been publicly released, Scalia’s vote is voided.  Nine- or eight- (with expected recusal) vote decisions now become eight- or seven-vote decisions, significantly increasing the chances of split (4-4) decisions.
  • For cases that have not yet been argued,
    • Condition B: President Obama could attempt to recess appoint a Justice. As detailed by Lyle at SCOTUSblog, this is very unlikely. If the President were to appoint as under Noel Canning, any rendered decisions would almost certainly be deemed non-precedential later.
    • Condition C: President Obama could attempt to nominate a Justice. On average, the nomination process takes about 25 days (NYT), with no nominations taking more than 125 days to calendar and arrive on the floor of the Senate. Early rhetoric and Senate math don’t make this look likely right now.
    • Condition D: President Obama could leave the nomination to the succeeding President, allowing the Court to complete this term and begin next without a full bench.

Condition C: Cases for which a new Justice might vote

It’s highly likely that most of this term’s outstanding cases will be decided without a full bench. If President Obama were to nominate a candidate immediately (not likely) and the Senate were to confirm on its average timeline of 25 days, then a new Justice might be able to sit for argument on the following cases:

Notably, in all five cases argued after March 23rd, both the FantasySCOTUS Crowd and Marshall+ Algorithm predict unanimous decisions.  Scalia’s absence or a new Justice’s presence would not impact these case outcomes.

Conditions A, B, and C: Cases for which fewer than nine Justices will likely vote

However, accepting Conditions A, B, and D, there are a number of cases whose outcomes are likely to change:


In the cases below, the FantasySCOTUS Crowd’s current estimate shows a 5-4 decision with Scalia in the majority.  For these cases, the lower court’s ruling would stand non-precedentially; whether the Court would attempt to address this via additional procedural actions in the ACA contraceptive mandate (… v. Burwell) is a matter of debate.

  • Bernard v. MNFantasySCOTUS, 5-4 Reverse (Scalia in majority at 63%); Marshall+, 9-0 Affirm
  • Friedrichs v. CA Teachers Assoc.FantasySCOTUS, 5-4 Reverse (Scalia in majority at 90%); Marshall+, 6-3 Reverse
  • Spokeo v. RobinsFantasySCOTUS, 5-4 Reverse (Scalia in majority at 92%); Marshall+, 9-0 Reverse
  • Franchise Tax Board of CA v. HyattFantasySCOTUS, 5-4 Reverse (Scalia in majority at 72%); Marshall+, 8-1 Affirm
  • Wittman v. PersonhuballahFantasySCOTUS, 5-4 Reverse (Scalia in majority at 78%); Marshall+, 9-0 Affirm
  • Contraceptive mandate cases: FantasySCOTUS, 5-4 Reverse (Scalia in majority at 67%); Marshall+, 9-0 Affirm
    • Little Sisters of the Poor Home for the Aged v. Burwell
    • Roman Catholic Abp of WA v. Burwell
    • East Texas Baptist University v. Burwell
    • Geneva Coll. v. Burwell
    • Priests for Life v. Burwell
    • Southern Nazarene Univ. v. Burwell
    • (Zubik v. Burwell not listed, as 7-2 Reverse predicted)


In the cases below, the Marshall+ Algorithm’s current estimates show a 5-4 decision with Scalia in the majority. For Bank Markazi v. Peterson, the Court’s predicted reverse would switch to a non-precedential affirm. For Taylor v. US and Ocasio v. US, the Court’s predicted precedential affirm would switch to a non-precedential affirm.

  • Bank Markazi v. PetersonFantasySCOTUS, 5-4 Affirm (Scalia in minority at 68%); Marshall+, 5-4 Reverse (Scalia in majority at 52%)
  • Taylor v. U.S.FantasySCOTUS, 7-2 Reverse (Scalia in majority at 54%); Marshall+, 5-4 Affirm (Scalia in majority at 57%)
  • Ocasio v. U.S.FantasySCOTUS, 8-1 Affirm (Scalia in minority at 53%); Marshall+, 5-4 Affirm (Scalia in majority at 54%)

Summary of cases affected by the absence of Justice Scalia

There are 14 cases whose decisions are likely to be impacted based on the FantasySCOTUS Crowd and Marshall+ Algorithm.  These changes will result in either reverse to affirm or vice versa switches, or by changing the opinions from precedential to non-precedential.  In addition, if the nomination process takes the average path, then there are five cases whose current date of argument could allow the new Justice to participate. None of these case outcomes, however, appear to be affected by Scalia’s vacancy or a new Justice’s appointment.

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