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Scalia’s death highlights difference between SCOTUS and SCOW

Justice Scalia’s death means several big cases (public unions, voting rights, immigration, etc.) could result in a deadlock. While there are no formal rules on point, the press reports that if a 4-4 split occurs, then either the court of appeals decision will be affirmed without comment or SCOTUS will set the case for re-argument next term–hopefully with Scalia’s replacement on board. Click here and here. SCOTUSblog offers a thoughtful look at past instances where cases were argued but not decided before a new justice joined the court. In these situations, SCOTUS’s practice is to order re-argument.

Justice Abrahamson made the same point in her dissent to State v. Matalonis, which was issued last week. Matalonis was a controversial decision that expanded the community caretaker doctrine to make it easier for police to conduct a warrantless search of a person’s home.  Due to Justice Crooks’s death, the case resulted in a 3-3 split. SCOW did not simply affirm the court of appeals, which would have resulted in a defense win. Nor did it order re-argument. Instead, it permitted Justice Rebecca Bradley, who was still a court of appeals judge when SCOW held argument and initially voted on Matalonis, to break the tie in favor of the State.

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