Josh Blackman and Ilya Shapiro have this op-ed with the above title in the WSJ. They recount the history* of Supreme Court vacancies and note that the Court has managed with short-handedness before. A few cases are affirmed 4-4 without setting a precedent and a few are deferred for decision later, but there is no large-scale disruption.
One of the cases which may well be affected in the present term is Utah v. Strieff. This is a Fourth Amendment case that could be decided on narrow grounds by applying existing "attenuation" case law to the facts of the case, or it could be a vehicle for the Court to take a bolder step to take another sizable chunk out of judicially fabricated Fourth Amendment exclusionary rule. Orin Kerr had this preview on SCOTUSblog on February 3rd, before Justice Scalia's death. CJLF's brief urged the bold approach, taking an originalist viewpoint that would have been right up Justice Scalia's alley.
Alas, the argument on Monday lacked Justice Scalia's unique contribution. The six Justices who spoke seemed divided 3-3. Justice Thomas was characteristically silent, and Justice Breyer was uncharacteristically silent. What to make of the latter? We will have to wait and see.
One of the cases which may well be affected in the present term is Utah v. Strieff. This is a Fourth Amendment case that could be decided on narrow grounds by applying existing "attenuation" case law to the facts of the case, or it could be a vehicle for the Court to take a bolder step to take another sizable chunk out of judicially fabricated Fourth Amendment exclusionary rule. Orin Kerr had this preview on SCOTUSblog on February 3rd, before Justice Scalia's death. CJLF's brief urged the bold approach, taking an originalist viewpoint that would have been right up Justice Scalia's alley.
Alas, the argument on Monday lacked Justice Scalia's unique contribution. The six Justices who spoke seemed divided 3-3. Justice Thomas was characteristically silent, and Justice Breyer was uncharacteristically silent. What to make of the latter? We will have to wait and see.
* One historical nit-pick. Justice Harlan died December 29, 1971, three months after he retired. He did not die in September six days after Justice Black's retirement, as the article says.
Recusals have from time to time produced an even number of Justices. Justice Kagan had to recuse herself from cases she worked on in the SG's Office, and Justice Breyer, whose family is well off, has had to recuse himself from cases in which his stock holdings might have created a conflict of interest.
This is not a big deal. As has often been noted, a tie vote does not leave the case undecided. It affirms the judgment below between the parties, without precedential value. Nothing more than that.