After the unexpected death of Justice Scalia, leaving the Supreme Court with 8 justices, at least for now, there are many things left up in the air. The Supreme Court is in the middle of a term, President Obama will nominate a new justice, and the Senate will either hold nomination hearings and take a vote on the nominee, or will simply refuse to hold a vote. Although many GOP Senators have been stating they will not hold a vote, at least one, Senator Charles Grassley, chair of the Senate Judiciary Committee, indicated he hasn’t made up his mind yet about whether to hold hearings on the nominee.
If the Senate confirms Mr. Obama’s nomination before the Supreme Court takes up the DAPA case – United States v. Texas, then it appears that DAPA would have a good chance of being able to move forward, because it would be likely that a majority of justices would conclude that DAPA is in accord with the Constitution and laws.
Realistically, it is not likely at all that the new justice would be on the Court to hear the DAPA case this term, which ends in June.
The justices could decide to postpone hearing the case until the next term, which begins in October 2016, and which might end up being too late for implementation of the program before President Obama leaves office on January 20, 2017.
If the 8 sitting justices decide to hear the case this term, then we could guess that there is a good possibility that Justices Ginsburg, Breyer, Sotomayor, and Kagan would likely rule in favor of the legality of the DAPA program. And, there is probably a good possibility that Justices Thomas and Alito would likely rule against DAPA. That leaves us with Chief Justice Roberts and Justice Kennedy. Either or both of those justices could joint the other justices in favor of DAPA, perhaps on the legal argument that the states lack standing to bring the DAPA lawsuit in the first place. If either Chief Justice Roberts or Justice Kennedy join the other 4, a majority would be in place to potentially allow the DAPA program to move forward.