The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few moments ago, I posted my statement about Justice Ginsburg's death. Here, I would like to discuss how her passing will affect the Supreme Court before her successor is confirmed.
First, there are now only eight Justices. As a result, any emergency applications will find the Court short-handed. The Roberts Five will still be able to stay a liberal lower court ruling. But the Ginsburg Four + Roberts will no longer able to stay a conservative lower court ruling. Roberts would have to persuade another Justice, probably Kavanaugh, to cross over. A four-four tie will leave the lower-court ruling in place.
Second, because a gridlocked Supreme Court cannot issue injunctive relief, the lower courts very well may have the final say on matters. In the election law context, most of the swing states are in circuits that President Trump "flipped." For example Ohio and Michigan are in the Sixth Circuit. Pennsylvania is in the Third Circuit. Wisconsin is in the Seventh Circuit. Iowa and Minnesota are in the Eighth Circuit, which was already flipped. Georgia and Florida are in the Eleventh Circuit. There are a handful of potential swing states in the Ninth Circuit (Arizona, and maybe Nevada). Trump has not flipped the Ninth Circuit, but he has made an impact on panel composition. And with the unique en banc process, the panel decision may stay.
Third, a number of the judges on the Circuit Courts are on the short list. No doubt we will see motions for them to recuse from any election law case. The argument would go that a circuit judge may be biased to vote for Trump so he or she will be elevated. Though, the fact that Trump will make the nomination ASAP will probably moot those claims.
Fourth, the state courts are not "flipped." Can you imagine if the U.S. Supreme Court splits 4-4, and allows a state Supreme Court resolve the election? That Court could be a conservative Court (Florida or Wisconsin) or liberal court (Pennsylvania), or a combination of several courts. That would be a classic John Roberts move. Decide nothing.
Fifth, the Supreme Court term begins on the first Monday in October. The Court will be short-handed at least till January, and maybe longer. Key cases, such as the ACA appeal, will now be reduced to five votes. Roberts will need at least one of the conservatives to break ranks to form a majority.