The immediate talk was of a prolonged vacancy and 4-4 opinions. But, arguably we just end up with 5-3 decisions on all the cases where Kennedy was going to vote liberal to begin with. But, maybe Scalia's absence will encourage Kennedy to switch his vote to the Roberts, Alito, Thomas bloc (as they will need him more than ever). Then again, maybe he will feel even more free to shift to the left.
I've wondered about this as well but I'm too conflicted to have a strong opinion on this as yet (and, perhaps, too caught up in the speculation over who will be nominated). But I am glad that you put this kind of fun discussion on these boards.
Very low poll participation. Guess many either lack interest or an expressible opinion. But, we may have our first clue. Both Kennedy and Scalia pretty clearly sided with the bank in the Hawkins case based on their statements at oral argument. So, even though the voting was not revealed in today's per curiam (4-4) affirmance of the 8th Circuit, it seems Scalia's vote would have favored the same outcome. This seems confirmed by the fact the decision was not held up by Roberts. Of course, as a result, we will still have to wait to see whether the FRB could modify the meaning of "applicant" in 15 U.S.C. § 1691(a). Will be fun to see how many other 4-4's come along, especially in regard to the Birchfield-Beylund-Bernard trilogy.
The best evidence of how to answer the question, so far, probably lies in today's 5-3 opinion in Pena-Rodriguez.
The new rule seems as clear as mud to me:
Before the no-impeachment bar can be set aside to allow further judicial inquiry, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote.
Words like "serious" and "significant" are hard enough to apply, but how does one objectively decipher what was a motivating factor in a juror's rationale? By trusting the post hoc testimony of the juror who admits violating his oath?
Bye, bye rule 606(b)(2); calling all experts on how to draft juror affidavits.
Pena-Rodriguez has further implications. More Exceptions.
We also now have another 5-3 decision in Moore v. Texas.
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