Commentary since the death of Justice Antonin Scalia has explored many facets of the Court’s procedures and operations to consider what might happen in pending cases. One of the most interesting questions some have asked is what happens to opinions on which Scalia was working when he passed away.

The simple answer is that no opinions will be issued under Scalia’s name, because he is no longer a member of the Court. That answer does not explain what may actually happen to opinions that were already in process, particularly any majority opinions Scalia may have been writing. Whether or when we will know whether Scalia had some unfinished majority opinions, which cases they were, or what impact his death had on voting and writing in other cases may depend on what current Justices do with their papers when they leave the Court.

However, history may provide some interesting possibilities. Consider one of the most important free speech rulings in the Court’s history, Brandenburg v. Ohio. The decision, widely known for defining when incitement of lawless action is no longer considered free speech under the protection of the First Amendment, is in the official reports of Supreme Court decisions as a “per curiam,” an unsigned ruling written for the Court but not credited to an individual Justice. That is not how the decision started out, however. It originally belonged to Justice Abe Fortas but changed course when Fortas resigned from the Court.

Recall the history. Fortas resigned from the Court on May 15, 1969. In 1968, President Lyndon Johnson’s nomination of Fortas to be Chief Justice was blocked in the Senate, as Andrew Hamm chronicled last week. But Fortas remained an Associate Justice until he was tainted by disclosure of a financial deal in which he agreed to receive a secret, annual retainer from a private foundation while sitting on the Court.

When Fortas resigned from the Court, the Justices had about five weeks left in their Term. Oral arguments were concluded, and numerous draft opinions were circulating among the Justices in the Court’s internal deliberative process. Brandenburg v. Ohio was one of those.

According to the files of Justice William J. Brennan, Jr., Fortas circulated two drafts of a majority opinion in Brandenburg, the second one on April 18, 1969, about a month before Fortas resigned. Court records do not make clear what happened in the weeks that followed, but it is possible that the Court awaited the preparation of a concurring opinion by Justice William O. Douglas.

Whatever the case, the ruling was not issued before Fortas resigned. Since the decision could no longer be issued as an opinion by Fortas, Brennan took over the completion of it, made some changes that are critical to the meaning the decision has today, and then, because most of it was still Fortas’s work, had it issued as a per curiam.

What were the changes? Brennan used most of the opinion that Fortas had prepared, but he revised the most important part, the First Amendment test.

In the April 18 draft, the Fortas opinion said the dividing line between protected advocacy and unprotected incitement should be determined in the following way:

This Court has on many occasions reiterated the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is attended by present danger that such action may in fact be provoked (italics added for comparison).

In the final per curiam that became the opinion of the Court, Brennan changed that sentence to the following language:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (italics added for comparison).

In both versions the First Amendment would not protect speech that advocated use of force or illegal activity if the speech is aimed at causing imminent lawless action. But the wording of the second element of the test is different.

The Fortas test is tied to the classic formula, penned by Justice Oliver Wendell Holmes in 1919, that the First Amendment does not protect speech that poses a “clear and present danger” of causing illegal harm. But Holmes and the Supreme Court moved away from the “clear and present danger” test in subsequent cases, generally finding that it provided too little protection for dissent in public discourse.

The version circulated by Brennan that made its way into the final opinion is somewhat simpler and cuts ties to the “clear and present danger” test. The decision was released on June 9, 1969, just over three weeks after Fortas left the Court and with no public inkling of what had transpired behind the scenes.

Could the same thing happen with one or more of Scalia’s opinions? It is possible. Before his death, Scalia sat on the Court’s two-week argument sessions for October, November, December, and January. By custom, each member of the Court is usually assigned the majority opinion in at least one case from each argument session. Scalia has already issued majority decisions for the October and November arguments, and it is unlikely that he had additional majority rulings from those sessions.

However, Scalia almost certainly had an assigned case from the December arguments. There were ten cases argued that month. Three have been decided in opinions by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, so seven remain and would have been distributed among the six other Justices, including Scalia. The January argument session is less certain. One of the nine argued cases was subsequently dismissed, and one case has already been decided in an opinion by Justice Sonia Sotomayor. That means that seven remaining cases would have been available among eight Justices when opinions were assigned in late January. Scalia might have had one of the seven.

So Scalia was almost certainly working on one majority opinion, possibly two when he died. But one factor that was apparently critical in the way the Court handled Brandenburg was that the decision was largely completed, meaning both that it was easy for Brennan to finish it and that it seemed inappropriate to put another Justice’s name on the ruling in place of Fortas.

There are, of course, other options for handling cases on which Scalia was working. Another Justice may take over a case and make it her own, adding substantial text and analysis or even changing the direction of the case. The Court may also decide to reargue cases, as happened in a couple of instances after Fortas resigned, although reargument would clearly be more productive if it includes a new, ninth Justice. Or it is possible that a case will end in a four-four deadlock with any opinions that were underway consigned to the scrap heap of history.

What will happen with the cases on which Scalia was working? The course of the Brandenburg decision offers one intriguing possible answer.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Lessons from history for rulings after Justice Scalia’s death, SCOTUSblog (Mar. 15, 2016, 5:09 PM), http://www.scotusblog.com/2016/03/scotus-for-law-students-lessons-from-history-for-rulings-after-justice-scalias-death/