Is Abigail Fisher’s case dead?
No, it goes to 4-3 majority, I think.
^^ The case actually goes forward as normal, and in the event of 4 - 4 tie, then the lower court case is upheld and unchanged. However, this does not create a national ruling - the lower court decision only applies to the circuit that made the ruling.
EDIT: In addition, pretty sure if Scalia already voted on cases which HAVE NOT been released / finalized yet, then his vote is erased and could lead to even more ties and even more stalemates in circuit courts.
It needs a 4-3 majority (rather than needing a 5-3 majority with Scalia), so the case proceeds as normal. All other cases, though, will have the possibility of a 4-4 tie.
“Justice Elena Kagan has recused herself because she dealt with the case as solicitor general, meaning only seven justices will be voting on the final opinion and a tie is not possible. Anthony Kennedy is the swing vote, with the decision likely to be 4-3.”
http://www.vox.com/2016/2/13/10987116/scalia-supreme-court-tie
Justice Kagan isn’t participating in the Fisher case. She recused herself because she was involved in an earlier phase of the case, serving as Solicitor General when her office filed an amicus brief. So only 7 Justices will decide that case–4 conservatives and 3 liberals, if you want to break it down that way, though Justice Kennedy is often a wild card and during the oral argument he didn’t seem to be in quite the same place as the other conservative Justices. That probably puts Justice Kennedy in the catbird seat–just where he likes to be–because neither side can get to a majority without him.
A number of other controversial cases will now likely be 4-4, in which case the lower court ruling stands. There will be a lot of pressure on the Chief Justice to avoid a long and embarrassing series of seemingly pointless 4-4 decisions that waste everyone’s time and resources; so the Chief will be looking for compromises or narrow procedural rulings that can command a majority or even a consensus. There will also be lots of opportunities for Justice Kennedy to play footsie with the liberals because with them he can get to a majority, but he can’t with the conservatives as long as there are only 8 votes. And this could go on for a long time. Mitch McConnell is saying the Senate won’t vote on a Supreme Court nominee for the remainder of President Obama’s term. If they hold to that, it means the earliest we can get a replacement Justice would be around March of 2017. That would leave the Supreme Court in a semi-incapacitated state for the better part of two terms, since most of the big cases from this term (October-June) haven’t yet been decided, and a new Justice wouldn’t come on board until around 2/3 of the next term’s cases have been heard, with the new Justice presumably unable to participate in cases that he or she didn’t hear.
Thanks. I forgot that detail.
Then Kennedy’s vote will be decisive and not just a potential tie – i.e. an opportunity to pass the buck to the 5th District Court.
Do you think that added weight on his shoulders will influence his decision?
Kagan’s recusal was my point in post #1. Sorry I didn’t make that clear.
I don’t think Justice Kennedy sees these things as “added weight on his shoulders.” Every indication is that he relishes every opportunity to be the deciding vote, and my guess is he plays both sides against the middle to get as much of his (sometimes idiosyncratic) views as he can into his majority opinions.
Would going on a retreat on a Texas ranch (with a bunch of high level people in the energy industry) be cause to recuse oneself from a decision re: college admission discrimination in Texas?
The only other name I have seen referenced on the trip was Poindexter and he is in manufacturing.
From an interview in January:
"Fed president Richard Fisher also holds an optimistic view on oil and the Texas economy.
“The rest of the state is prospering,” he added. “So this is a very diversified economy led by hospitality, tourism; health care is huge, business and financial services very large, and the predominant real activity is coming from construction statewide.”
High level people in the energy business are like high level people in any other business. They have connections to get their kids into any school they want including as part of the holistic admissions group at UT.
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"Fed president Richard Fisher also holds an optimistic view on oil and the Texas economy.
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Wrong Fisher.
Sigh… this thread is doomed.
Huh? I wasn’t remotely confusing Fishers. My point is that the presumption that everyone on that ranch was in the energy business because it is Texas is kind of a leap. They might have been but I have seen one name mentioned- manufacturing executive.
And to think that energy executives have to worry about an affirmative action in college admissions case to the point of trying to influence a justice is probably the furthest from their mind.
Was making a modest tongue in cheek comparison that the Fisher case is a Tx case, and he was on a ranch in Tx (with some folks that might have had an interest in the recent clean power plan ruling)
Most cases decided are not 5 to 4, so they will go on as assigned with the same judge writing the majority opinion and others writing opinions as they desire.
There were be several cases that have to be reassigned for the final opinion. Of course all the cases Scalia was writing (and he wrote a lot, and often wrote concurring opinions just because he like to have his own say in everything). If the initial vote was 5-4 and the decision will now be 4-4, I’d imagine the ‘majority’ opinion may still be written by the same justice but the ‘minority’ opinion, which will now be a ‘tie’ decision, may be reassigned, or different justices will want to write something else.
Roberts will have a lot of work to do reassigning things.