Well right now there hasn't been any sort of trial over the DAPA action. The only thing under consideration is whether or not there can be an injunction against the executive order while the trial goes underway.

The fifth district court has upheld the injunction so Obama administration went to SCOTUS to ask whether or not an injunction is needed while the original trial is underway.

So.... it's way better that we're a justice down. Scalia would've been a definite no. In that case it would've likely been 4/5-against.

This would mean that the injunction would remain in place and this lawsuit would "run out the clock" on Obama's executive order. So if we have a republican president next, that president could not renew the executive order and then the suit would be dropped because it would no longer be opposing an executive order.

Now we're looking at a 4-4 split (which would be the same thing as upholding the injunction...), but I think we're more likely to see a 5-3.