Here’s a novel way to decide the cases left in limbo by the death of Justice Scalia. An Arizona attorney and anti-government activist says that, since we already know how Scalia would vote, let’s just assume it and be done. This would pretty much be like letting the Justice vote from beyond the grave.
In a panel discussion on Phoenix’s KPNX TV on Sunday, Kory Langhofer suggested a strange way to resolve for the cases that had not been decided publicly when Scalia died. Cases such as Friedrichs v. California Teachers Association, which deals with union dues and Whole Women’s Health v. Cole, which deals with abortion restrictions fall into this category. According to the Supreme Court rules, these cases are now treated as though they had never been heard by the Supreme Court, Scalia’s votes having been voided.
But Langhofer argues that, since we already know how Scalia voted after the arguments, we should go ahead and assume that he’d vote that way in the public decision.
There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted. We’re at the second-to-last step in how these cases unfold when Justice Scalia died. We know exactly what he thought. And it’s not unprincipled to say we should give affect to that.
Fellow panelist and attorney, Thomas Ryan, was having none of it. Using Chief Justice John Roberts’ change of mind on the Affordable Care Act as an example, he pointed out:
Justices, after they do the conferences can also change their minds. The general rule is dead justices don’t vote. I mean, that sounds cruel, but that’s it.
That wasn’t good enough for Langhofer. To think that Scalia might change his mind is “incredibly speculative,” he said. Justices hardly ever change their minds, he asserted, “It almost never happens.”
But it does happen. And it did happen. Recently. That very small chance is enough to bring a reasonable doubt to bear in these decisions. No plaintiff should have to accept a decision from less than a full Court, even if it has already been heard, discussed, opinions written and private votes cast. A decision does not become law until it becomes part of the public sphere.
We know that conservatives are upset about losing their 5-4 majority of the SCOTUS. But there is precedent here, 200 years of it. We know that you only love the Constitution and laws of the United States when they go your way. Get over it, you bunch of whiners. President Obama will nominate someone who is well qualified to sit on the bench of the highest court in the land, as is his right and duty. So let him do it and let’s get on with the nation’s business.
Here’s the video via Raw Story:[youtube https://www.youtube.com/watch?v=aGX_YaYLXk8]
Featured Image via Pixabay