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Judge Napolitano Explains What Measures John Roberts Can Take To Prevent a Court Deadlock Following Scalia's Death


"Most of these cases are such big public policy cases that they can wait until there is a ninth member."

Image via Twitter/FoxandFriends

Judge Andrew Napolitano explained on Fox News' "Fox and Friends" Tuesday morning that Supreme Court Chief Justice John Roberts has several options at his disposal to give "due process" to major cases on the court's docket following Justice Antonin Scalia's death.

Some of those tools, Napolitano said, are Roberts' personality and his "willingness to compromise."

Image via Twitter @FoxandFriends

"He might very well be able to forge out of a 4-to-4 vote a 5-to-3 vote, in which case the Supreme Court's opinion would prevail," Napolitano told Fox News host Tucker Carlson.

"He can also delay the release of an opinion," Napolitano added. "He can hold back on an opinion until a ninth person is on the court. They can have re-argument, they can re-submit to the briefs. Most of these cases are such big public policy cases that they can wait until there is a ninth member."

Scalia, who was appointed to the court by former president Ronald Reagan, died unexpectedly sometime in his sleep Friday night or Saturday morning. His death has created an intense battle over who and when President Barack Obama should nominate someone to fill the court's vacancy.

As per the court's tradition, if the court is deadlocked in a case, then the lower court's decision stands.

But while Washington will continue to debate who is best suited to receive a lifelong appointment in Scalia's absence, the court does have several major cases on their docket as the spring and summer quickly approach. Those cases include controversial issues of affirmative action, abortion rights, voting rights, the power of public unions and immigration policy.

So far, Attorney General Loretta Lynch is a favorite to be nominated to replace Scalia.

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