The NCSL Blog


By Lisa Soronen

So the million dollar question—other than who will fill Justice Antonin Scalia’s seat—is what will happen to undecided U.S. Supreme Court cases heard or to be heard this term.

The sSupreme Court buildinghort answer is "It depends and in all instances isn’t entirely clear."

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4, the court has two choices: Wait for the ninth justice to join the court and rehear the case or issue a nonprecedential 4-4 decision that affirms the lower court decision.

SCOTUSblog publisher Tom Goldstein predicts that the court will rehear 4-4 cases. It is, of course, impossible to know which cases would have been 5-4 had Scalia lived. But a good rule of thumb is that particularly important, controversial cases are often 5-4. Six cases this term meet just about any definition of important and controversial.

Let’s take a look at the five such cases affecting state and local government. Unsurprisingly, Justice Anthony Kennedy’s vote probably will be key in all of them.

Public Sector Unions

In Friedrichs v. California Teachers Association, the court will decide whether to overrule Abood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs.

Scalia and Kennedy joined two previous opinions by Justice Samuel  Alito criticizing Abood. Unless Kennedy has a change of heart or one of the other conservative justices has second thoughts about overturning precedent regardless of how much he dislikes it, this case is likely to be reheard.


In United States v. Texas, the court will decide whether the president’s deferred action immigration program violates federal law or is unconstitutional.

The stakes are the highest if the court is 4-4 in this case. The federal government and the Supreme Court worked hard to make sure this case got on the docket this term because a new president could scrap the program. If this case is reargued, unless the new justice joined the court next fall, it seems unlikely the court could render an opinion before January 2017. 

One Person,  One Vote

The issue in Evenwel v. Abbott is whether voting population must be the metric in ensuring that state and local legislative districts comply with the “one person, one vote.”
Evenwell is considered the most important voting rights case in decades. Using voting population as the metric tends to favor more rural, Republican areas. This case seems ripe for rehearing unless Kennedy sides with the liberals.


The issue in Whole Women’s Health v. Cole is whether Texas’ admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions.

The conventional wisdom on abortion is that only Kennedy’s vote is at play. If he is willing to strike down Texas’s laws this case will not be reheard. The fact that Kennedy voted to prevent these laws from going into place before the court decided to review the case indicates he may be skeptical of the laws, making a 4-4 vote less likely.

Affirmative action

In Fisher v. University of Texas at Austin,  the court has agreed to decide whether UT-Austin’s race-conscious admissions policy is unconstitutional.

More conservatives justices are probably as likely to win this case with or without Scalia. Justice Elena Kagan is recused and Kennedy is no fan of affirmative action. But the court heard this case once before, rendering a narrow 7-1 opinion against UT-Austin. You never know with cases involving race.

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.