Scalia's death might change everything for the Clean Power Plan. Before there appeared to be a 5-4 majority on the Supreme Court that was likely ready to overrule the appellate court if the appellate ruling favored the Plan. Now there's just four, and on a 4-4 split, the appellate ruling would stand.
Some initial points, and I expect we'll see more about this:
- "Law of the case" was going to kill us prior to now, but now the reverse is true. If the Supreme Court splits 4-4 on the Clean Power Plan, then it doesn't matter if a Republican wins the presidency and appoints some throwback - that case is finished. This is different from constitutional issues like Citizens United, where a future Democratic president appoints a changed majority of the Court that could reconsider the legal issues based on a new case that arises, like a new state law regulating campaign cash.
- The 4-4 split means no change in the current status of the Plan, however. The stay suspending the Plan stays in place until the Supreme Court decides what to do with the inevitable appeal by whoever loses at the appellate court. Here's the actual language: "If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment."
- In the past, when cases would've ended in a tie and then a new appointee arrived, they rescheduled and reargued the case - this could happen for the Clean Power Plan, which could get heard by the Court before a Republican gets appointed, and a decision issued afterwards. The 4-4 split stands only if it's issued before a new appointee gets on the Court.
- If I were the Republicans, I would slow-walk the case. In particular if I lost at the appellate court, I'd petition for en-banc review by all the judges in that appellate court before appealing to the Supreme Court. Stall as much as possible and hope to win the presidency. Not sure what the EPA could do in response - maybe if there were some piddling issue they lost on, they could appeal to the Supreme Court - not sure if that's a good strategy.