How will lower federal courts react to the loss of a 5-4 pro-business majority on the U.S. Supreme Court?

A slew of writers have highlighted the fact that Antonin Scalia’s February 13 death will change the outcome of some big cases now pending before the Court. But as best I can tell only one noticed that a loss of discipline elsewhere — in the 13 circuit courts of appeals and 94 district courts — might also ensue.

The exception, Dan Farber of LegalPlanet, noted:

One might say, at the risk of making a somewhat undignified analogy, that lower court judges are a bit like grade school students whose teacher has stepped outside into the hallway. Time for some fun!

Dan Farber, “Unleashing the Lower Courts“, Feb. 22, 2016, LegalPlanet.

Mr. Farber’s idea strikes me as more than plausible. Last week, Dow Chemical bowed to the fact that the loss of Justice Scalia made its appeal from a $1.2 billion price-fixing verdict a big enough long shot that it settled for $835 million. While some may fixate on the $365 million haircut that the class plaintiffs took, they in fact received more than twice their actual damages because of automatic trebling in antitrust cases. Dow’s real-world forecast of a future with a 4-4 split on the Court speaks volumes about what everyone — including judges — now expect from the Court: inaction.

The likelihood that the Senate will engage in its own kind of inaction — not acting on any nomination to the Court by President Obama — makes the probability of pro-plaintiff rulings greater. The prospect of a deadlock on the Court for at least 12 months and likely longer will cause circuit and district judges to feel freer to rule as they see fit rather than as they believe the Court would allow them to do.

And now that President Obama has appointed more than a third of all federal judges, tipping the balance in favor of Democratic appointees (he and President Clinton names 94 of about 170 active circuit judges, for instance), the natural inclination of the lower courts will tilt towards giving plaintiffs a fair chance to prove their cases on the merits.

Oddly, if the Senate approved a moderate successor to Justice Scalia, the lower courts’ pro-plaintiff leaning would probably lessen until the new justice showed her colors. But a toothless Court will encourage lower court judges to give rein to their pro-consumer, pro-worker, and pro-small business sense of justice.

Delay in confirming a middle of the road successor to Justice Scalia will thus accelerate the demise of his conservative, pro-business legacy.