What happens to the big Supreme Court cases after Scalia's death?

What Happens When the Supreme Court's Vote Is a Tie?

Even before the sudden death of Justice Antonin Scalia, this was going to be an enormously consequential Supreme Court term.

The court has heard or has agreed to hear cases involving the constitutionality of considering race in college admissions; how far states can go in restricting abortion; the viability of public sector unions; whether President Obama could defer deportations of unauthorized immigrants; and the tension between claims of religious freedom and women's access to contraception.

The high court recently stepped in to halt implementation of President Obama's climate plan.

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What happens to the big Supreme Court cases after Scalia's death?
WASHINGTON - FEBRUARY 21: United States Supreme Court Associate Justice Antonin Scalia (R) arrives at the American Enterprise Institue February 21, 2006 in Washington, DC. Justice Scalia delivered the keynote address about foreign law and the debate about how it is used in American Law during the seminar called 'Outsourcing Of American Law.' (Photo by Chip Somodevilla/Getty Images)
NEW YORK - OCTOBER 10: Supreme Court Justice Antonin Scalia walks October 10, 2005 in the annual Columbus Day Parade in New York City. This is the 61st Columbus Parade which celebrates both the explorer and Italian cultural influence on America. (Photo by Spencer Platt/Getty Images)
PHILADELPHIA - APRIL 29: U.S. Supreme Court Associate Justice Antonin Scalia addresses the Philadelphia Bar Association during a luncheon April 29, 2004 in Philadelphia, Pennsylvania. Scalia presented the first Antonin Scalia Award to Philadelphia lawyer and former American Bar President Jerome J. Shestack. Scalia is the third U.S. Supreme Court Justice to Address the Philadelphia Bar Association members in less than a year. (Photo by William Thomas Cain/Getty Images)
WASHINGTON, UNITED STATES: US Supreme Court Justice Antonin Scalia (L) attends inaugural ceremonies 20 January 2w005 on Capitol Hill in Washington, DC. US President George W. Bush was sworn in for a second term in a solemn ceremony held under unprecedented security on the steps of the US Capitol. (Photo credit should read TIMOTHY A.CLARY/AFP/Getty Images)
ANN ARBOR, MI - JANUARY 25: U.S. Supreme Court Justice Antonin Scalia speaks at the fifth annual Ava Maria School of Law lecture January 25, 2005 on the University of Michigan campus in Ann Arbor, Michigan. Scalia talked about religion and U.S. Constitution. (Photo by Bill Pugliano/Getty Images)
384802 07: (FILE PHOTO) This undated file photo shows Justice Antonin Scalia of the Supreme Court of the United States in Washington, DC. (Photo by Liaison)
382727 01: U.S. Supreme Court Justice Antonin Scalia talks with opera star Placido Domingo at a gala opening night dinner following a Washington Opera performance Oct 21, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
382727 17: U.S. Supreme Court Justice Antonin Scalia looks at a painting during an opening at the National Gallery of Art September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
371151 07: Louis Freeh, Director of the Federal Bureau of Investigation, left, and Supreme Court Justice Antonin Scalia applaud during the Mass of Installation for Archbishop Edward Egan June 19, 2000 at St. Patrick''s Cathedral in New York. (Photo by Chris Hondros/Newsmakers)
382727 05: U.S. Supreme Court Justice Antonin Scalia attends a National Gallery of Art opening ceremony September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
WASHINGTON - APRIL 29: (L-R) Supreme Court Justice Antonin Scalia, Jason Binn, and Charles Merinoff inside the Correspondent's After Party hosted by Capitol File Magazine on April 29, 2006 in Washington, DC. (Photo by Nancy Ostertag/Getty Images)

Now, all of the cases on the court's docket are thrown into question, particularly as top Republicans like Senate Majority leader Mitch McConnell have declared that the Senate should wait to confirm a replacement until a new president is in office.

If the court of eight justices splits 4-4, the opinion of the federal appeals court stands without making law for the rest of the country, according to Samuel Bagenstos, a law professor at the University of Michigan who clerked for Supreme Court Justice Ruth Bader Ginsburg and has argued before the court several times.

The justices generally vote for a case's outcome at a conference after oral argument, after which the chief justice assigns an opinion — but if Scalia was the deciding fifth vote in a case that has already been heard, that result is negated.

"Unless a justice is sitting at the court at the time of argument and at the time the decision is issued, the justice's vote doesn't count," Bagenstos said.

In Whole Woman's Health v. Hellerstedt, the court's biggest abortion case in decades, the 5th U.S. Circuit Court of Appeals ruled against the abortion clinics in upholding parts of a Texas law requiring doctors performing abortions to have admitting privileges at nearby hospitals. It resulted in the shutdown of dozens of abortion clinics.

The 5th U.S. Circuit Court of Appeals voted to temporarily block President Barack Obama's executive action of deferring the deportation of some undocumented immigrants. The Supreme Court was expected to hear arguments in April. The plan could shield more than 4 million people from deportation.

The group of religious nonprofits before the Court in a case consolidated as Zubik v. Burwell, who object to the Obama administration's plan for providing contraception to women whose employers object, all lost at their respective lower courts, though other organizations not technically before the Court prevailed at the 8th U.S. Circuit Court of Appeals.

Another possibility, said Bagenstos, is for the cases to be re-argued in the next term. But, he said, "In the absence of new justice joining the court, that would be very unlikely."

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