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Will Scalia’s death spell doom for McDonnell’s appeal? Not necessarily Will Scalia’s death spell doom for McDonnell’s appeal? Not necessarily.
(about 2 hours later)
For some Supreme Court watchers, the death of Associate Justice Antonin Scalia equaled bad news for the future of former Virginia governor Robert F. McDonnell, whose final appeal now rests with the high court. With only eight justices on the court, the thinking went, a conservative-liberal bloc deadlock of 4 to 4 would affirm McDonnell’s 2014 conviction and send him to prison while leaving the definition of “public corruption” fairly broad. For some Supreme Court watchers, the death of Justice Antonin Scalia equaled bad news for the future of former Virginia governor Robert F. McDonnell, whose final appeal now rests with the high court. With only eight justices on the court, the thinking went, a conservative-liberal bloc deadlock of 4 to 4 would affirm McDonnell’s 2014 conviction and send him to prison while leaving the definition of “public corruption” fairly broad.
But that’s far from the only possibility, a number of court experts said this week. And most of the other options mean either a delay or even a vindication for McDonnell, who has always argued that his actions after accepting loans, vacations and gifts from a Richmond businessman did not constitute “official acts” subject to criminal prosecution. But that’s far from the only possibility, a number of court experts said this week. And most of the other options mean either a delay or even vindication for McDonnell (D), who has always argued that his actions after accepting loans, vacations and gifts from a Richmond businessman did not constitute “official acts” subject to criminal prosecution.
The court, which accepted the case last month, will hear oral argument this spring with eight justices. Then: The court, which accepted the case last month, will hear oral arguments this spring with eight justices. Then:
• If the justices deadlocked 4 to 4, they could decide to rehear the case when a ninth justice is appointed. ●If the justices deadlock 4 to 4, they could decide to rehear the case when a ninth justice is appointed.
• If the court deadlocked 4 to 4, it could decide to let the 4th Circuit’s 2015 affirmation of McDonnell’s sentence stand. ●If the court deadlocks 4 to 4, it could decide to let the 2015 affirmation of McDonnell’s sentence, issued by the U.S. Court of Appeals for the 4th Circuit, stand.
• The court may not deadlock at all and decide the case for or against McDonnell with just eight justices. ●The court might not deadlock at all and decide the case for or against McDonnell with just eight justices.
• It could void its decision to accept the case in the first place, even after briefing and oral argument. ●It could void its decision to accept the case in the first place, even after briefings and oral arguments.
But if the court moves ahead with the case, which already has a briefing schedule but no oral argument date, “I don’t think it’s a foregone conclusion that it’s 4 to 4,” said William W. Taylor, a Washington lawyer who filed an amicus brief on behalf of law professors supporting McDonnell. The case is being watched carefully by many politicians and lawyers who think the government too broadly interpreted McDonnell’s actions as crimes, and “this case has a lot of potential to be a bit more decisive about this statute,” Taylor said. But if the court moves ahead with the case, which already has a briefing schedule but no date for oral arguments, “I don’t think it’s a foregone conclusion that it’s 4 to 4,” said William W. Taylor, a Washington lawyer who filed an amicus brief on behalf of law professors supporting McDonnell. The case is being watched carefully by many politicians and lawyers who think that the government too broadly interpreted McDonnell’s actions as crimes. “This case has a lot of potential to be a bit more decisive about this statute,” Taylor said.
Others noted that the conventional view of the court as split evenly along liberal-conservative lines, absent Scalia, may not apply in McDonnell’s case. They cited the court’s unanimous 2010 ruling that prosecutors went too far in their convictions of Enron chief executive Jeffrey K. Skilling and publisher Conrad Black. In that case, Justice Ruth Bader Ginsburg wrote the majority opinion attacking the government’s claim that Skilling and Black deprived the public or their companies of “honest services.”Others noted that the conventional view of the court as split evenly along liberal-conservative lines, absent Scalia, may not apply in McDonnell’s case. They cited the court’s unanimous 2010 ruling that prosecutors went too far in their convictions of Enron chief executive Jeffrey K. Skilling and publisher Conrad Black. In that case, Justice Ruth Bader Ginsburg wrote the majority opinion attacking the government’s claim that Skilling and Black deprived the public or their companies of “honest services.”
[Supreme Court decision casts doubt on former Enron CEO’s conviction][Supreme Court decision casts doubt on former Enron CEO’s conviction]
Stephen Wermeil, a constitutional law professor at American University, said, “It’s not a certainty that the driving impetus to hear the case is altered by the absence of Scalia,” noting the 9 to 0 ruling in Skilling’s case. If the eight justices were able to reach a majority decision, the political jostling over Scalia’s replacement could be irrelevant, Wermeil and other said. Stephen Wermiel, a constitutional law professor at American University, said, “It’s not a certainty that the driving impetus to hear the case is altered by the absence of Scalia,” noting the 9-to-0 ruling in Skilling’s case. If the eight justices were able to reach a majority decision, the political jostling over Scalia’s replacement could be irrelevant, Wermiel and others said.
Still, the absence of Scalia almost certainly means one less vote on the court for McDonnell’s view that prosecutors misinterpreted the public corruption statute. “Scalia was not just another justice when it came to McDonnell,” said Randall Eliason, who formerly headed the public corruption unit of the U. S. attorney’s office in Washington. “He had written opinions that were right for McDonnell and argued for a narrower interpretation of ‘official acts.’ It’s hard to see this as anything but bad for McDonnell.” Still, the absence of Scalia almost certainly means one less vote on the court for McDonnell’s view that prosecutors misinterpreted the public-corruption statute. “Scalia was not just another justice when it came to McDonnell,” said Randall Eliason, who formerly headed the public corruption section of the U. S. attorney’s office in Washington. “He had written opinions that were right for McDonnell and argued for a narrower interpretation of ‘official acts.’ It’s hard to see this as anything but bad for McDonnell.”
And if the court realizes it is deadlocked, it may keep its eye on the political scoreboard to see if a tie-breaking vote is on the way. President Obama said last week he would nominate a successor to Scalia; Senate Republicans initially said they would not consider any nominees in an election year, though their rhetoric has cooled. And if the court realizes that it is deadlocked, it may keep its eye on the political scoreboard to see if a tie-breaking vote is on the way. President Obama said last week that he would nominate a successor to Scalia; Senate Republicans initially said they would not consider any nominees in an election year, although their rhetoric has cooled.
Eliason said the court will likely schedule oral argument for April and try to resolve the case without delay. The court could, if tied 4 to 4, simply affirm McDonnell’s conviction and end the case. Eliason said the court will probably schedule oral arguments for April and try to resolve the case without delay. If tied 4 to 4, the court could simply affirm McDonnell’s conviction and end the case.
Or the justices could decide to simply postpone the case and rehear oral argument when a new justice comes aboard. Rehearings are rare, but were held in a case where Justice Sandra Day O’Connor had stepped down and Justice Samuel Alito was joining the court in 2006, and also in landmark cases such as Citizens United and Brown v. Board of Education, in which the justices wanted to hear further argument. Or the justices could decide to postpone the case and rehear oral arguments when a new justice comes aboard. Rehearings are rare, but they were held in a case when Justice Sandra Day O’Connor had stepped down and Justice Samuel A. Alito Jr. was joining the court in 2006, as well as during such landmark cases as Citizens United v. Federal Election Commission and Brown v. Board of Education, in which the justices wanted to hear further arguments.
“Nobody knows entirely,” Weilman said, “why or how they decide to let some 4 to 4 ties go, and some go to rehearing. If they don’t know when they’re going to get the ninth justice, they’re less likely to put this over for reargument.” Eliason also thought that a lengthy delay was unlikely. “Nobody knows entirely,” Wermiel said, “why or how they decide to let some 4-to-4 ties go, and some go to rehearing. If they don’t know when they’re going to get the ninth justice, they’re less likely to put this over for reargument.” Eliason also thought that a lengthy delay was unlikely.
But if it seems that a new justice is imminent, “then I think it would be very likely they’d put it on for reargument,” Weilman said. “I think they’ve got to be a little bit reluctant to send somebody to prison by a 4 to 4 tie. Affirming somebody’s sentence because you couldn’t decide has to carry a certain amount of circumspection.” But if it seems that a new justice is imminent, “then I think it would be very likely they’d put it on for reargument,” Wermiel said. “I think they’ve got to be a little bit reluctant to send somebody to prison by a 4 to 4 tie. Affirming somebody’s sentence because you couldn’t decide has to carry a certain amount of circumspection.”
Allan Ides, a professor at Loyola Law School and former clerk for Justice Byron White, said though there is the option of simply affirming the lower court with a 4 to 4 decision, “this is a pretty big case. If it’s 4 to 4, I would think the court would put it off to the next term, with the hope a justice could be confirmed by then.” Allan Ides, a professor at Loyola Law School and former clerk for Justice Byron R. White, said that although there is the option of simply affirming the lower court’s ruling with a 4-to-4 decision, “this is a pretty big case. If it’s 4 to 4, I would think the court would put it off to the next term, with the hope a justice could be confirmed by then.”