Justice Antonin Scalia’s death will likely cause huge political turmoil said Eric Segall, Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law. “We are in unchartered territory here.”
With the Court scheduled to hear landmark cases this year, Scalia’s death could mean some cases are put on hold. Many cases on the docket—immigration, executive power, abortion, affirmative action, redistricting are unusally important, he said.
“I don’t know if the Court will or should decide all of these cases with less than a full court,” Segall said.
If there are eight justices for any reason, a four to four tie means whatever happened in the lower court is affirmed, he said. The Court could decide to focus on less significant cases. Typically, at least half of the cases the Court hears each year are decided unanimously, or with a clear majority.
“They could decide to take straw votes, which they do anyway, and all the cases that are 7-1 or 6-2 they will decide, but the cases that would have been 5-4 they will hold over,” Segall said.
Segall, who has written about the Supreme Court for more than 20 years including his 2012 book, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, has often been critical of Scalia’s opinions and theories. However, he said, Scalia should be given credit for changing the conversation about constitutional law. He made history by crafting originalism into a reputable theory.
“We have a cottage industry of scholars who are originalists and it’s mostly because of Scalia,” Segall said. “Scalia was a patriot and a hard worker and he devoted his life to the country and he deserves credit for that.”
However, Americans have a tendency to inflate their heroes, Segall said. “I hope when the dust settles we are honest about his record.”
Segall is the author of countless scholarly articles about the constitutional law and the court. He has been widely quoted in media outlets such as CNN and appears regularly on the national XM Radio show StandUp with Pete Dominick.
Read Segall’s bio at http://law.gsu.edu/profile/eric-j-segall.
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