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What Scalia's Death Spells For The Supreme Court's Docket


As we've been reporting, Supreme Court Justice Antonin Scalia has died, reportedly at a ranch in Texas. He was 79 years old. Tom Goldstein is an attorney who's argued before the court and a well-known blogger, publisher of the SCOTUSblog about the Supreme Court of the United States. And he is with us now. Tom Goldstein, thanks for speaking with us. What are your thoughts on hearing this news today?

TOM GOLDSTEIN: Well, it's obviously a tragedy for his family, his wife and nine kids. There are more than 20 grandchildren. And he was a historic figure. He was a huge, huge influence on every kind of law - the Constitution, statutes, regulations. He really was the kind of father of conservative legal thought in a lot of ways. It puts the Supreme Court into the presidential election in a way that it wasn't before because it's so tangible now that there is a seat open that would move the court to the left if a Democrats were to win and really could radically reshape the law because the Supreme Court's so important and so closely divided. Whether that seat can be filled right now when we have a presidential election this seems incredibly unlikely. The president probably has to nominate somebody so he doesn't give up and so that he can and paint Republicans as obstructionist. But I can't see Republicans allowing a really influential conservative justice to be replaced by a Democratic president when there's an election around the corner that a Republican could win.

MARTIN: What happens to the cases that are before the court now?

GOLDSTEIN: If Justice Scalia voted but the case hasn't been decided, then his vote doesn't count. So if there are cases in which he was the fifth vote - so, for example, there's a really important case in which he was probably the fifth vote where the court was going to restrict public unions and their ability to require contributions from people who didn't want to be members of the unions. That vote is now null and void, and the court would be divided 4 to 4. And the lower court's ruling in favor of the unions would stand. So if there was a conservative decision that was coming but hadn't come out and it was a five-vote majority - say, a Citizens United, the very famous campaign finance ruling were still pending - well, then that case would not be decided and the conservative result wouldn't come. So there are going to be a bunch of cases probably because the court is so closely divided where we're going to hear company that it is a 4 to 4 tie. And the court will have to come back to those issues in a later year.

MARTIN: Are they - will they be asked to disclose what his votes were, or is that something we will ever know?

GOLDSTEIN: Well, we'll know because the court will issue a series of orders saying hey, in this case, the judgment is affirmed by an equally divided court. And then we'll know that he was one of a five-justice majority. And in cases that are ideological - say that union case or, you know, conceivably the court has a big abortion case this term, a case about one person, one vote and how it is that we count votes in this country, we'll know that it was going to be along conservative-liberal lines.

MARTIN: It seems that we'll be talking about his legacy for quite some time. We only have about 30 seconds left. Tom Goldstein, how are you going to remember him?

GOLDSTEIN: He just changed the game entirely in so many different ways, trying to get people to focus on the original meaning of the Constitution. When you talk about laws that Congress passes, just reading the words themselves, not trying to figure out what Congress was trying to accomplish. He shifted, you know, an entire generation of legal thought, definitely one of the, you know, handful of most influential legal minds of the last century.

MARTIN: Tom Goldstein is publisher of the SCOTUSblog. Thank you so much for speaking with us.

GOLDSTEIN: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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