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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Saturday, February 13th, 2016

Right wing U.S. Supreme Court Justice Antonin Scalia dead at seventy-nine

Unit­ed States Supreme Court Jus­tice Antonin Scalia, the most senior jus­tice on the Roberts Court and a reli­able vote for the Court’s right wing bloc, has died, accord­ing to a state­ment released today by Chief Jus­tice John Roberts.

“On behalf of the Court and retired Jus­tices, I am sad­dened to report that our col­league Jus­tice Antonin Scalia has passed away,” said Roberts. “He was an extra­or­di­nary indi­vid­ual and jurist, admired and trea­sured by his col­leagues. His pass­ing is a great loss to the Court and the coun­try he so loy­al­ly served. We extend our deep­est con­do­lences to his wife Mau­reen and his family.”

The San Anto­nio Express-News report­ed that Scalia was found dead in his room at a ranch in West Texas, where he had been stay­ing dur­ing a quail hunt­ing trip:

Accord­ing to a report, Scalia arrived at the ranch on Fri­day and attend­ed a pri­vate par­ty with about 40 peo­ple. When he did not appear for break­fast, a per­son asso­ci­at­ed with the ranch went to his room and found a body. Chief U.S. Dis­trict Judge Orlan­do Gar­cia, of the West­ern Judi­cial Dis­trict of Texas, was noti­fied about the death from the U.S. Mar­shals Service.

Scalia appar­ent­ly died of nat­ur­al caus­es. No foul play is suspected.

White House Deputy Prin­ci­pal Press Sec­re­tary Eric Schultz announced, “This after­noon the Pres­i­dent was informed of the pass­ing of Supreme Court Jus­tice Antonin Scalia. The Pres­i­dent and First Lady extend their deep­est con­do­lences to Jus­tice Scalia’s fam­i­ly. We’ll have addi­tion­al reac­tion from the Pres­i­dent lat­er today.”

UPDATE: Fol­low­ing the ini­tial pub­li­ca­tion of this post, Pres­i­dent Oba­ma deliv­ered a state­ment from Cal­i­for­nia, where he is work­ing and vacationing.

“Alliance for Jus­tice extends its con­do­lences to the fam­i­ly, friends, and col­leagues of Antonin Scalia,” said AFJ’s Nan Aron in a state­ment. “His death cre­ates a vacan­cy at a crit­i­cal time in the his­to­ry of the Court, the law, and our nation.”

“We urge Pres­i­dent Oba­ma to exer­cise his con­sti­tu­tion­al duty to nom­i­nate a replace­ment and for the Sen­ate to ful­fill its oblig­a­tion to fair­ly and expe­di­tious­ly con­sid­er the nom­i­nee. For the Sen­ate to do oth­er­wise would be an abdi­ca­tion of its respon­si­bil­i­ties and a blow to pub­lic con­fi­dence in our demo­c­ra­t­ic institutions.”

“We are con­fi­dent that the Pres­i­dent will nom­i­nate some­one who under­stands the lives and strug­gles of every­day Amer­i­cans, and trust that that the Supreme Court of the Unit­ed States will not become a casu­al­ty of the pol­i­tics of destruc­tion, denial, and obstruc­tion,” Aron added.

Scalia, sev­en­ty-nine, was the longest serv­ing mem­ber of the Court, as men­tioned. He was born March 11th, 1936 in Tren­ton, New Jer­sey. Scalia stud­ied at George­town and Har­vard, earn­ing degrees in his­to­ry and law. He worked in pri­vate prac­tice for a num­ber of years before becom­ing a law professor.

Scalia lat­er served in the Nixon and Ford admin­is­tra­tions. He was passed over for Solic­i­tor Gen­er­al of the Unit­ed States by Ford, but in 1982, Ronald Rea­gan nom­i­nat­ed him for the Unit­ed States Court of Appeals for the Dis­trict of Colum­bia Cir­cuit. Six years lat­er, Rea­gan ele­vat­ed him to the Unit­ed States Supreme Court. He was unan­i­mous­ly con­firmed on the same day as William Rehnquist.

As Asso­ciate Supreme Court Jus­tice, Scalia made a name for him­self as an unapolo­getic, reac­tionary arch­con­ser­v­a­tive. He became some­what infa­mous for his bom­bast, par­tic­u­lar­ly when he was on the los­ing side of a case.

But there were many times when he was on the win­ning side.

Scalia was among the five jus­tices who ordered Flori­da to stop recount­ing bal­lots in the after­math of the 2000 U.S. pres­i­den­tial elec­tion, in Bush v. Gore.

He was also one of the five jus­tices respon­si­ble for one of the worst deci­sions in U.S. his­to­ry: Cit­i­zens Unit­ed v. Fed­er­al Elec­tion Com­mis­sion, which unleashed an avalanche of secret, dark mon­ey in Amer­i­can elections.

From the Cas­ca­dia Advo­cate’s archives, here is a selec­tion of posts about major U.S. Supreme Court deci­sions Scalia took part in that hurt our country:

Though Jus­tice Scali­a’s posi­tions were wrong most of the time, there were a few occa­sions where we felt he reached the cor­rect conclusion.

One of those occa­sions was when the Supreme Court decid­ed in 2008 to allow Sam Reed to imple­ment the Top Two sys­tem that replaced our Mon­tana-style open pri­ma­ry. Jus­tice Scalia wise­ly dis­sent­ed in this deci­sion, and we believe his opin­ion in that case ought to have been the major­i­ty opin­ion.

Anoth­er was in 2010, when Scalia wrote a fine opin­ion con­cur­ring with the major­i­ty in Doe v. Reed, a case that orig­i­nat­ed in Wash­ing­ton State. (Dis­ap­point­ing Tim Eyman, the Court held in Doe v. Reed that states may dis­close the names of peo­ple who sign ini­tia­tive and ref­er­en­dum peti­tions — as Wash­ing­ton has long done.)

Scali­a’s death will result in a very rare, mas­sive­ly con­se­quen­tial event: a vacan­cy on the Unit­ed States Supreme Court.

Were the Sen­ate still con­trolled by the Democ­rats, Pres­i­dent Oba­ma could nom­i­nate some­one much more pro­gres­sive and rea­son­able to take Scali­a’s place. But Repub­li­cans have already declared that they will not con­firm any­one they don’t like.

Inter­viewed on MSNBC by Ari Mel­ber, U.S. Sen­a­tor Lind­sey Gra­ham stat­ed flat­ly that he would not sup­port any nom­i­nee that was not “a con­sen­sus choice”.

Asked by Mel­ber to name some­one who might be an exam­ple of a con­sen­sus choice, Gra­ham said “Orrin Hatch”. (Hatch is an estab­lish­ment Repub­li­can U.S. Sen­a­tor from the state of Utah who is quite conservative.)

Incred­i­bly, Mitch McConnell is say­ing Pres­i­dent Oba­ma should­n’t both­er to nom­i­nate any­one at all — that his suc­ces­sor should be the one to nom­i­nate Scalia. Of course, Oba­ma has near­ly a year left to go in his pres­i­den­cy, and we think it high­ly unlike­ly the Pres­i­dent is going to forego his respon­si­bil­i­ty of nom­i­nat­ing a qual­i­fied jurist to fill a vacan­cy on the Unit­ed States Supreme Court.

SCO­TUS­Blog’s Tom Gold­stein fig­ures we can expect the vacan­cy to go unfilled until the 2016 elec­tions have tran­spired, even if Pres­i­dent Oba­ma nom­i­nates someone:

The most imme­di­ate impli­ca­tions involve the pres­i­den­tial elec­tion.  Pres­i­dent Oba­ma of course has the pow­er to nom­i­nate a suc­ces­sor, with the con­sent of the Senate.

In the ordi­nary course, because the open­ing was unex­pect­ed, the nom­i­na­tion would not be forth­com­ing for a cou­ple of months and then the con­fir­ma­tion process would take sev­er­al more months.

The­o­ret­i­cal­ly, that process could con­clude before the Novem­ber elec­tion. But real­is­ti­cal­ly, it can­not absent essen­tial­ly a con­sen­sus nom­i­nee – and prob­a­bly not even then, giv­en the stakes. A Demo­c­ra­t­ic pres­i­dent would replace a lead­ing con­ser­v­a­tive vote on a close­ly divid­ed Court. The Repub­li­can Sen­ate will not per­mit such a con­se­quen­tial nom­i­na­tion – which would rad­i­cal­ly shift the bal­ance of ide­o­log­i­cal pow­er on the Court – to go forward.

Oba­ma has the pow­er to make a recess appoint­ment (Eisen­how­er and Wash­ing­ton are among the Pres­i­dents who made recess appoint­ments to the Supreme Court, so there is prece­dent), but con­gres­sion­al Repub­li­cans are unlike­ly to give him that oppor­tu­ni­ty. They’ll call pro-for­ma ses­sions from now through the end of the cur­rent Con­gress, so they can argue that the Sen­ate is not in recess.

If vot­ers elect a Demo­c­ra­t­ic Sen­ate in Novem­ber, that Sen­ate would begin meet­ing in ear­ly Jan­u­ary, three weeks before Pres­i­dent Oba­ma’s term ends. The­o­ret­i­cal­ly, Oba­ma’s nom­i­nee could be con­firmed then by a Demo­c­ra­t­ic majority.

How­ev­er, Sen­ate rules still allow the minor­i­ty to fil­i­buster Supreme Court nom­i­na­tions, and it is like­ly most Repub­li­cans would fil­i­buster to pre­vent a pro­gres­sive jurist from tak­ing Scali­a’s place on the Court.

Democ­rats could vote to estab­lish new rules for the Sen­ate to require that Supreme Court nom­i­nees receive a con­fir­ma­tion vote. That would pre­vent them from being able to fil­i­buster an arch­con­ser­v­a­tive jurist nom­i­nat­ed by a Repub­li­can Pres­i­dent and sent to a Repub­li­can-con­trolled Sen­ate in the future. But per­haps that would be for the best. Democ­rats did not band togeth­er to fil­i­buster either Roberts or Ali­to, and if there was ever a time to deploy the fil­i­buster against two bad Supreme Court nom­i­nees, it was in 2005 and 2006 when Bush held the White House.

Until Scalia has a suc­ces­sor, the Supreme Court is now a house divid­ed. The Roberts Court has lost its work­ing right wing major­i­ty, and that will have pro­found impli­ca­tions for a num­ber of cas­es. SCO­TUS­Blog explains:

The pass­ing of Jus­tice Scalia of course affects the cas­es now before the Court. Votes that the Jus­tice cast in cas­es that have not been pub­licly decid­ed are void. Of course, if Jus­tice Scalia’s vote was not nec­es­sary to the out­come – for exam­ple, if he was in the dis­sent or if the major­i­ty includ­ed more than five Jus­tices – then the case will still be decid­ed, only by an eight-mem­ber Court.

If Jus­tice Scalia was part of a five-Jus­tice major­i­ty in a case – for exam­ple, the Friedrichs case, in which the Court was expect­ed to lim­it manda­to­ry union con­tri­bu­tions – the Court is now divid­ed four to four.  In those cas­es, there is no major­i­ty for a deci­sion and the low­er court’s rul­ing stands, as if the Supreme Court had nev­er heard the case.  Because it is very unlike­ly that a replace­ment will be appoint­ed this Term, we should expect to see a num­ber of such cas­es in which the low­er court’s deci­sion is “affirmed by an equal­ly divid­ed Court.”

The most imme­di­ate and impor­tant impli­ca­tions involve that union case. A con­ser­v­a­tive rul­ing in that case is now unlike­ly to issue. Oth­er sig­nif­i­cant cas­es in which the Court may now be equal­ly divid­ed include Even­wel v. Abbott (on the mean­ing of the “one per­son, one vote” guar­an­tee), the cas­es chal­leng­ing the accom­mo­da­tion for reli­gious orga­ni­za­tions under the Afford­able Care Act’s con­tra­cep­tive man­date, and the chal­lenge to the Oba­ma administration’s immi­gra­tion policy.

Dai­ly Kos has a sim­i­lar run­down with even more affect­ed cas­es.

Right wing can­di­dates and elect­ed offi­cials seemed to real­ize almost imme­di­ate­ly that Scali­a’s death would enable the Supreme Court’s four-mem­ber pro­gres­sive bloc to stop the con­ser­v­a­tive bloc from reach­ing any more sweep­ing deci­sions in major cas­es planned and brought by them to increase Repub­li­cans’ polit­i­cal pow­er and over­turn pro­gres­sive laws at the state and fed­er­al level.

“We’ve lost a giant on the con­ser­v­a­tive side,” lament­ed Lind­sey Gra­ham as MSNBC’s Ari Mel­ber asked him for his reac­tion to Scali­a’s passing.

As men­tioned, we did not agree with Jus­tice Scalia most of the time, and we won’t miss him as a jurist. His lega­cy, on bal­ance, isn’t what we’d call pos­i­tive for the coun­try. Our deep­est con­do­lences go out to his fam­i­ly and friends, how­ev­er, par­tic­u­lar­ly his wife Mau­reen and their chil­dren, who have sud­den­ly lost their father. This is a very sad day for them, and they have our sympathies.

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