The final official act of Senior Associate Supreme Court Justice Antonin Scalia, before his untimely death over the weekend, was —last week — joining the 5-4 majority that stayed the Environmental Protection Agency’s Clean Power Plan while challenges to the new regulations on power plants are heard in a lower court.
The Atlantic writes that while it’s unlikely that the SCOTUS will revisit its stay — which keeps the new regulations from being enforced until the SCOTUS, itself, or the D.C. Circuit Appellate Court rules — it does draw into question if the High Court, itself, will rule the same way if it takes the case on appeal, essentially because Scalia’s death turns that 5-4 majority into a 4-4 tie. The legality of the Obama administration’s plan is being challenged by 29 states and several power and energy industry groups.
In the language of the Court, taking up a case is “granting a writ of certiorari,” often shortened to “granting cert.” Unlike in a decision on a case, in which five justices determine how the court rules, only four justices need to vote to grant cert in a case. Most experts thought it was likely that the Court—whatever its makeup—would eventually hear the case before Scalia’s death.
The path to nominating and confirming a justice to replace Scalia on the court has already become a political battle with both parties taking up sides.