The remaining SCOTUS cases
Unless you've decided to swear off news, and most other forms of communication, you know how Antonin Scalia's death over the weekend will impact the Court until a successor is confirmed by the Senate. An eight-member court poses the risk of ties; in that event, the lower court decision is affirmed, although the Court's decision is announced in a brief per curiam ruling, rather than a full opinion, and has no precedential value.
There are a number of critical cases on the Court's docket for this year that remain undecided, and it's likely that if the nomination and confirmation process is postponed until after the election, a new justice wouldn't take his seat much before April of the Court's next term, after oral arguments have been concluded. The media reports will also tell you what those critical cases are: redistricting, affirmative action, union dues, the Obamacare contraception mandate being at the top of the list.
What they don't tell you, though, is what criminal cases are still unresolved, and what might happen with those. That's why you have me. A look, in chronological order of when they were argued or are scheduled for argument.
Ocasio v. US (links are to the SCOTUSblog page): This presents the simple question of whether a conspiracy charge under the Hobbs Act alleging that the conspirators took money "from another" applies when the "other" is one of the conspirators. At oral argument in October, the only judge who appeared willing to embrace Ocasio's argument that it doesn't was Scalia.
Foster v. Chatman: This is the Batson case I've discussed before. At oral argument in November, though, a complicated procedural question arose, throwing in doubt whether the Court would rule on the merits or simply kick it back to Georgia courts. The split on that appeared to run along conservative/liberal lines, so this sounds like a prime case for a split decision and non-ruling.
Lockhart v. US: Another case on Federal law, this time on sentencing under the child pornography statute: is the mandatory minimum ten-year sentence required prior state convictions apply only if the conviction is for a crime involving a child, or whether it also applies to sex crimes against adults. The oral argument in November involved a fascinating discussion about competing doctrines of statutory construction, "series qualifier" versus "last antecedent." Believe me, on. The. Edge. Of. My. Seat. Scalia played a large role in the oral argument - then again, when does he not? - and seemed to be leaning toward allowing Lockhart to win by employing a third doctrine, the rule of lenity. The sentiments of the other judges were more difficult to divine, so it's hard to tell how this one will come out.
Luis v. US: This may have broader application: the question is the propriety of a court order freezing all of Luis' assets after she was charged with Medicare fraud. She argued that seizing assets untainted by the crime prevented her from hiring a lawyer. At oral argument, none of the justices appeared satisfied with the broadness of either Luis' position or the governments. Scalia wasn't really a factor here, so unless there's an even split, this case will be decided without him.
Molina-Martinez v. US: The judge in Molina-Martinez's case overcalculated his guideline sentencing range, but his lawyer didn't object, so the question is what the Court should do about this on plain-error review. In oral argument, the justices seemed to favor Molina-Martinez. Scalia probably wouldn't have affected the outcome here.
None of the remaining cases have been argued.
Utah v. Strieff: If the police stop you and arrest you when they find out you've got a warrant, is the evidence seized during the arrest tossed if it turns out the stop was illegal? This would seem to be a clear call for application of the fruit of the poisonous tree doctrine, but the state argues the exclusionary rule shouldn't be applied in this situation, and the Court's been chipping away at the exclusionary rule for years. Including Scalia; his opinion in Hudson v. Michigan, eliminating the no-knock rule as a constitutional doctrine, was filled with comments about the high cost of the exclusionary rule. Scalia has softened a bit on 4th Amendment issues, but this might be a case where the defendant, and fans of the 4th Amendment, are better off with him not there. A good chance for a split decision. The argument's next week, so we'll see how it goes.
Taylor v. US: Another Hobbs Act case, this time on whether the government can prove the interstate commerce element by relying on evidence that a robbery of a drug dealer is an inherent economic enterprise that satisfied the element. This has flown under the radar; it's argued the same day as Strieff, so we'll get a sense of where things are going then.
Williams v. Pennsylvania: As I discussed here, this case involves the refusal of Ron Castille, the Chief Justice of the Pennsylvania Supreme Court, to recuse himself from the appeal in a death penalty case involving a defendant who was prosecuted by Williams' office when he was the District Attorney of Philadelphia. There's an issue of harmless error - the conviction and sentence was unanimously affirmed by the court, and Castille didn't write the opinion - so this could engender a liberal/conservative split. Scalia was an ardent defender of the death penalty, once writing that even actual innocence wasn't a bar to execution, so that helps Williams.
Welch v. US: This one concerns the retroactivity of the Court's decision last year in Johnson v. US, which voided the residual clause of the Armed Career Criminal Act on vagueness grounds. The government's position is that Johnson is retroactive, so the Court will probably appoint someone to argue the contrary. A ruling in favor of Welch could lead to the release of hundreds of defendants who committed gun crimes, so that might also lead to a liberal/conservative split.