The death of Justice Antonin Scalia could result in some cases being re-argued before the high court should the temporary eight-member bench become deadlocked.
“Some [cases] may be 4-4 and they may be sent down for re-argument when a replacement is found,” former White House counsel and Ambassador C. Boyden Gray told the Washington Examiner.
There are no published rules regarding how the Supreme Court decides to re-argue a case, but Chief Justice Roberts has shown a willingness on select occasions to order re-argument to reshape the focus of a case by asking the parties to address a new issue.
In 1987, the court allowed re-argument to allow a new justice to break a deadlock in an eight-member court when Justice Anthony Kennedy filled the seat left vacant by the retirement of Lewis Powell and the defeat of Judge Robert Bork’s nomination. The same occurred in 2006 when Justice Samuel Alito replaced Sandra O’Connor.
Scalia’s death could mean cases involving organized labor, affirmative action, regulations on abortion clinics and exemptions for religions nonprofts from Obamacare’s contraception could all be re-argued.
Gray called Scalia’s death a big loss for him personally and for the country.
“The country has lost one of its greatest heroes and a wonderful human being who had great wisdom, brilliance and humor. He was loved and admired by all his friends on all sides of the philosophical spectrum,” Gray said.
