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Jun 24, 3:20 AM EDT

Scalia's death, Senate inaction leave Supreme Court in bind


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WASHINGTON (AP) -- Justice Antonin Scalia's unexpected death in February and the Senate's refusal to confirm a successor has left the Supreme Court in a bind on several closely divided cases.

Even as some justices have said the short-handed court will continue to get its work done, Justice Ruth Bader Ginsburg has noted, "Eight is not a good number."

The court's 4-4 tie Thursday in a case about President Barack Obama's plan to help millions of immigrants living in the U.S. illegally was the latest illustration of what Ginsburg meant. The justices were unable to resolve a case without Scalia's vote and unwilling to keep the case on hold for an indefinite period because they don't know when a ninth justice will join them.

The high court has been operating with eight justices instead of its full complement of nine since Scalia died. Obama has nominated Judge Merrick Garland to take Scalia's place, but Senate Republicans have refused to hold a hearing or a vote.

Garland wouldn't have been available to take part in this term's cases even if the Senate had acted quickly on his nomination. But the other justices might have ordered new arguments in some cases in which they split 4 to 4 if they knew Garland would be on the bench by the time the next term begins in October.

Instead, they announced ties Thursday in the immigration case and another dispute involving the authority of tribal courts. The Supreme Court was evenly divided in two earlier cases decided after Scalia's death, including one in which public-sector labor unions staved off a significant defeat over their ability to collect user fees from people who choose not to join the union.

A Supreme Court tie is akin to the court having never heard the case at all, a waste of time and effort. The decision of the lower court remains in place, but no national precedent is established. The high court typically takes cases on important issues of law and policy, and also resolves conflicting rulings from lower courts.

Scalia's absence also appears to have affected the outcome of the court's ruling Thursday in favor of affirmative action.

Justice Anthony Kennedy and three liberal justices would have lacked the votes to issue a surprising affirmation of the use of race as a factor in college admissions if Scalia, long an opponent of race-conscious admissions policies, had been alive.

Justice Elena Kagan also didn't take part in the affirmative action case because she worked on it while serving in the Justice Department.

At worst, for opponents of affirmative action, the case would have ended in a tie and the same outcome, a victory for the University of Texas, but with no opinion from the Supreme Court.

Scalia took part in the affirmative action arguments in December. It is impossible to know how the justices initially voted after the arguments and how Scalia's death might have altered the outcome. The court held onto the case for more than six months, which sometimes is a hint that something changed between the justices' initial vote and the issuance of the decision.

Kennedy had never before voted to uphold a race-based affirmative action policy. He did so Thursday and wrote an opinion that would not have garnered a court majority with Scalia around.

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