As our nation and especially the legal community mourn the death of one of the most charismatic and influential Supreme Court justices in our history, one question that might be asked is how Justice Scalia’s death might impact pending class action cases. There are two pending class action cases of broad significance: Spokeo, Inc. v. Robins, which presents a question involving standing to sue in so-called “no injury” class actions; and Tyson Foods, Inc. v. Bouaphakeo, which involves whether a class can be certified based on a statistical sampling technique, and whether a class can properly be certified where it includes many members who were not injured.

Both cases were argued in November, and thus the Court could be close to finalizing decisions in them, although it may need to revisit that if Justice Scalia’s vote was decisisve. As Tom Goldstein explains at SCOTUSblog, the Court has traditionally not issued opinions based on the vote of a justice who has died or left the Court before the opinion is issued. There are two ways the Court has traditionally handled a justice’s death in the middle of a term, where the justice’s vote was decisive and the remaining members are divided 4-4. The Court could hold the case for reargument after a new justice is confirmed, or issue an order affirming the lower court based on the 4-4 deadlock. If the Senate refuses to confirm a nominee of President Obama, as Senate Republican leadership has suggested they might do, that could mean holding a case for reargument for quite a long time. Even if the next president were to make a nomination shortly after taking office next January 20, it would be at least a few months—towards the end of the next Court Term—before the seat would be filled, leaving the Court with only eight members for more than a year.

In Spokeo, based on my review of the oral argument transcript (see my November 3 blog post), the Court seemed to be largely in agreement that there has to be some concrete harm beyond a mere statutory violation to satisfy Article III standing requirements. There was a lot of disagreement over how to resolve the Spokeo case on its own allegations, however, suggesting that there might have been a 5-4 vote on that prior to Justice Scalia’s death. My guess is that, if Justice Scalia’s vote was decisive, the remaining justices might now find their way to a majority in favor of a narrower decision that corrects what they seemed to pretty much all think was wrong about the Ninth Circuit’s opinion, while resolving this case on narrow grounds, leaving some issues for another day. If that happens, it could be a small victory for class action defendants.

In Tyson Foods, my reading of the oral argument transcript (see my November 11 blog post) suggests that this case might not turn on Justice Scalia’s vote. The media’s interpretation was that Justice Kennedy would side with the plaintiffs, perhaps along with the four liberal justices. My effort to read the tea leaves suggested that Justice Kennedy, if he sided with the plaintiffs, would want to do so quite narrowly. He will still frequently be a lynchpin in the eight-member Court. I also thought that there seemed to be a broader majority in Tyson Foods in favor of a result that might explain how the way this case was presented to the jury was the wrong way to try a class action, and send the case back for a retrial without deciding much more than that. My guess is that we will see a majority opinion in this case, rather than a rehearing or affirmance because of a 4-4 vote. It could be a narrow opinion that provides district courts and class action practitioners some guidance on how a class action should be tried, and does not completely eliminate the possibility of statistical evidence being used, but leaves some of those details unanswered. The issue of many class members lacking injury, however, may be more difficult to resolve, and perhaps the Court might find a way to decide the case without deciding that issue if there were a tie vote on that question.