Supreme Court

Will Antonin Scalia’s death change the balance on key business decisions in 2016?

By Tina Irgang

Antonin Scalia, the famously combative and rigorously conservative Supreme Court Justice, has left a gaping power vacuum in his wake. With the court set to decide a number of key cases that concern businesses, what effect will Scalia’s death have on their outcome?

Before Scalia’s death, the court’s status quo was generally favorable to companies petitioning the court. A 2013 study by the Minnesota Legal Review found that, under Chief Justice John Roberts, the court had been significantly more likely to find in favor of businesses petitioning the court than under either of the previous chief justices. “The court is taking more cases in which the business litigant lost in the lower court and reversing more of these,” the study also found.

The authors identify Roberts and Justice Samuel Alito as the most business-friendly members of the court, but note that the other three justices, including Scalia, had begun to follow their decision-making trend, perhaps “to forge a more solid conservative majority across a broad range of issues.” With Scalia’s death, that conservative majority is broken for the time being.

So how does that change the balance for upcoming decisions?

As Fortune points out, three pending cases were set to make it much harder to mount a class-action lawsuit against businesses. The most important of those cases, Spokeo, Inc. v. Robins, basically hinges on whether companies can be sued for publishing inaccurate information about people, including their age, professional experience or marital status. Facebook, Google and other major tech companies have filed court papers backing Spokeo, the company in the case.

Now, Fortune says, the case might result in a tie, which would mean a lower-court decision against Spokeo stands.

Another pending case was set to examine government set-asides for veteran-owned contractors, Inc. reports. The company in the case, Kingdomware Technologies, is arguing that federal agencies aren’t doing enough to ensure that veteran-owned companies are getting their contracts, according to SCOTUSblog. A tie in this case might leave the government contracting landscape unsettled, Inc. notes. A lower court had sided with the government, which argued that its current process is sufficient.

Scalia’s death also throws doubts on the fate of the Obama administration’s plan to cut carbon emissions. The Supreme Court, with Scalia’s backing, issued a stay, which led many to believe that the plan would not survive a hearing in front of the court. Now, all bets are off.

Then there’s the case brought by Texas to derail President Barack Obama’s executive order to help millions of undocumented immigrants stay and work in the U.S. As Fortune notes, sectors that rely heavily on unskilled and migrant labor, including construction and agriculture, have a lot riding on the outcome.

Meanwhile, the appointment of Scalia’s successor has been hotly debated between Obama, the Republican-majority Congress and presidential candidates from both parties. While Senate Majority Leader Mitch McConnell has said the appointment should wait until a new president is sworn in next year, Obama could decide to appoint a new justice while Congress is in recess, NPR reports.

In the meantime, businesses waiting for the high court’s rulings remain in limbo.

Tina Irgang is the production editor for SmartCEO. Contact her at