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Who Acts as Circuit Justice for the 5th Until Scalia Is Replaced?

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By Jonathan R. Tung, Esq. on February 22, 2016 6:00 AM

Each of the Federal Circuit Courts of Appeals has one of the nine Supreme Court Justices assigned to handle procedural matters for that circuit. In the case of the late Justice Scalia, that was the Fifth Circuit, which covers Louisiana, Mississippi, and Texas.

But now that he's passed away, who will act as circuit justice?

Scalia's Circuit Replacement

The answer is none other than Justice Kennedy. Why? Because he happened to be the justice that was appointed immediately after Scalia, so Kennedy is directly junior to Scalia.

Look at Supreme Court Rule 22.3 in the Rules of the Supreme Court of the United States. It states, in relevant part that if the assigned judge is not available "for any reason", then his Circuit will be assigned to the Justice "who is next junior to the Circuit Justice."

All About Timing

It turns out that the justices can't simply reach into a hat and draw out the circuit of their preference. Rather, they were each assigned a circuit pursuant to Title 28, USC, sec 42 -- an act that was actually enacted fairly recently in 2010.

Rules vs. Reassignment

It is probably safe to say that the circuit assignments under the 2010 enacted law were probably not by complete accident and that the political powers that be will not wait long to release new reassignments of the Circuits to the various judges -- just as soon as Scalia's replacement can be found. And they'd better work quickly too.

Although, most legal scholars generally agree that Justice Kennedy's political leanings favor conservative preferences, pretty much nobody will argue that the man whose Circuit he just took was a legal pushover. Justice Scalia took contextualism and its most conservative-interpretation of the law to the nth degree. By comparison, it will almost seem as if the Fifth Circuit will get an almost liberal breather in the interim when Scalia's replacement is nominated and appointed -- particularly in areas like gay marriage.

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