How Scalia's death could upend America

(CNN)

By Erwin Chemerinsky

As the nation is stunned by the death of Justice Antonin Scalia, the immediate question is what it will mean for the Supreme Court this year and in the future.

The court has an unusually large number of cases before it this term on controversial issues: abortion, affirmative action, the contraceptive mandate in the Affordable Care Act, the First Amendment rights of non-union members, immigration and voting districting.

The long-established procedure is that for a justice to participate in a ruling, he or she must be on the bench at the time the decision is handed down. Justice Scalia's vote, therefore, will not be counted in any case this year that has not already been issued. Obviously, in any case where there is a majority without him, the decision still will be forthcoming.

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But there may be a number of 4-4 ties without his vote. For example, the Supreme Court heard oral argument in January in Friedrichs v. California Teachers Association as to whether to overrule a prior decision and hold that non-union members have a First Amendment right to not pay the share of union dues that goes to support collective bargaining.

From the argument it seemed clear that the court, in a 5-4 decision split along ideological lines, would issue an important ruling against the unions. Now, it almost certainly will be 4-4.

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