top of page

Justice Scalia has died...

Let’s start right up front. I mostly disagreed with the man. I thought he was wrong on Planned Parenthood v Casey, and his desire to see Roe v Wade overturned. I thought he was wrong on Printz v United States (despite being part of the majority), and wrong on Gonzales v Raich, where I again disagreed with the majority. He was so offensively wrong in Bowers v Hardwick that it’s embarrassing it took nine years for this country to realize Bowers was wrong and offensive. Justice Scalia was opposed to Miranda rights. He supported the death penalty, even for juveniles and people with mental defects.

Justice Scalia was right to dissent in Rasul v Bush, a case that I believe the court kicked badly. He was right to dissent in Clinton v City of New York, another case the court got all wrong (in my own, thoroughly didn’t go to law school, opinion). His death today does not bring me joy. It does not make me dance around and sing “ding dong” like I have seen around so much of social media. Even though I frequently disagreed with Justice Scalia, I always respected the man. While he and I rarely saw eye to eye, I mostly believed his opinions had a solid basis in his understanding of the Constitution, and history will describe Justice Scalia as a strict believer in the Constitution. This country, and this court, will go on. While both parties like to pretend that SCOTUS is this disaster of political maneuvering, the fact is that less than twenty percent of cases come back 5-4. Most cases come back up 9-0, as the law is the law and very little interpretation is required. While the court lost what I think is its' most intelligent conservative, we won’t suddenly be covered in 4-4 ties. The real question is what comes next? We’re nine months away from electing the next President. Does President Obama get to nominate the next Associate Justice of the Supreme Court? The Constitution says he does, and I believe that Justice Scalia would be appalled by Mitch McConnell’s affirmation today that President Obama doesn’t have that right. McConnell says the American people should have a larger voice in selecting the next Justice, by waiting until after the Presidential election. I wish I could ask Justice Scalia what he thinks of that, because I’m curious. So what does this mean for the race? If you follow politics you’ve believed that it’s possible the next President will get to select three Justices for SCOTUS. We can now probably change that number to two. If President Obama nominates a qualified jurist and a Republican Senate blocks that nomination the Democratic party will have an obstructionist field day. Now, I’m part of that party, so I probably don’t mind if the Republicans give back five to eight seats in moderate states by getting painted as obstructionist. On the other hand, if HRC and Donald are the nominees and HRC gets elected with that open SCOTUS seat, we get to an interesting proposition. Justice Obama? He wouldn’t be the first former POTUS to sit on the bench for SCOTUS, that honor belongs to William Howard Taft. The 27th President of the United States was also the 10th Chief Justice of the Supreme Court of the United States. We know the court loves precedents, and here we have one for naming President Obama to the court. Someone brought the idea up to Secretary Clinton a while back and she said she loved the idea. Oh, how people would squirm if that happened, but it might be difficult to prevent if both of them wanted it. President Clinton (Bill) ran a 55% average approval rating, but that number has risen to 70% in the most recent time people were asked about how well he did the job. Most Presidents see significant improvement in their job approval after they’ve left the job and people are looking back at it. It’s not unfair to guess that President Obama will be sitting in the low 50s early in 2016 and that Republicans would, again, risk being tagged as obstructionists if they opposed his appointment. As a graduate of Columbia and Harvard, and President of the Harvard Law Review, he fits right in with the sitting court. Let me say right now I don’t expect it to happen. President Taft did not leave the White House after one term and enter a world where he could make hundreds of thousands of dollars speaking to people. President Obama lives in that world. I can perfectly understand that he and his family want to move to some far away place and enjoy being out of the public eye for a while. I don’t expect that this seat will be empty when we swear in the 45th President. I do expect that the Republicans will drag their feet a little, but President Obama will nominate a slightly left-leaning Justice who is too qualified to reject, and make a lot of noise when it doesn’t happen. Afraid of letting this affect the election chances of 34 potential Senators (including 24 sitting Senators), and all 435 seats in the House, that nomination will pass with something around 90 votes. Justice Scalia has been a part of American history. He gave nearly thirty years to the highest court in the land, and served his country since he was named as Assistant Attorney General under President Ford. Whether you like him or not, a legal giant has passed, and his influence on the court will be missed. May he rest in peace, and may the next person appointed to that court also do everything they can to follow the law as they understand it, whether we agree or not.

Our Recent Posts


bottom of page