In an obvious scheme to keep the Supreme Court slanted their way, a conservative lawyer in Arizona claims that Scalia can and should be allowed to vote from beyond the grave.
When Justice Antonin Scalia died just over a week ago, he left behind some major cases that could have been ruled 5-4 in favor of conservatives, including an anti-abortion case, an Affordable Healthcare Act contraception case, a case involving public sector unions, a case on voting rights, and a case on affirmative action just to name a few.
Conservatives were foaming at the mouth in anticipation of winning most, if not all, of these cases. So it’s understandable that they were disappointed when Scalia passed away before decisions could be made on these cases.
But one conservative attorney in Arizona is throwing a desperation Hail Mary in an effort to make sure conservatives continue to control the Supreme Court 5-4 even though the composition of the high court is now 4-4.
During a KPNX panel on the status of the Court, Kory Langhofer claimed that Justice Scalia should be allowed to cast a vote even though he is dead.
“There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted,” Langhofer claimed on Sunday. He explained that all of the Justices meet and discuss the case before one Justice goes off to write the decision. And that is why Langhofer thinks Scalia can still vote on these cases. “We’re at the second-to-last step in how these cases unfold when Justice Scalia died,” he said. “We know exactly what he thought. And it’s not unprincipled to say we should give affect to that.”
Langhofer then used an example of a US Senator dying after the Senate sends a freshly passed bill to the President after the Vice-President casts the tie-breaking vote.
The problem with comparing Congress to the Supreme Court is that the senator had already cast their final vote on the bill, whereas Justice Scalia might have changed his mind anytime between discussion and writing an opinion. And that’s how attorney Thomas Ryan explained it to Langhofer.
“Justices, after they do the conferences can also change their minds,” he pointed out. “The general rule is dead justices don’t vote. I mean, that sounds cruel, but that’s it.”
Here’s the video via YouTube:
But Langhofer continued to argue that Justice Scalia’s conservative ideology should be used to decide cases with his opinion even after his death.
Of course, if that’s the case, why not continue to use long-dead Chief Justice Roger B. Taney’s notes to let him vote on cases today? I’m sure the author of the Dred Scott decision in 1857 would love to be able to cast votes in cases involving civil rights. After all, we know how he would vote on these things. Or how about we let former Justice Harry Blackmun, who died in 1999, vote on any upcoming abortion cases? After all, we know how he would vote on these things considering he authored the Roe v. Wade decision.
112 Americans have sat on the Court. 11 of them still live, but only 8 are still active Justices. So it would be a pain in the ass to access how each of the 101 dead Justices would vote on a Supreme Court case in the present day. Only a living Justice can make a decision, and none of the cases Scalia was discussing reached a final decision because no decision is final until it is announced. Justices can and have changed their minds before at the last minute and there is no way of knowing what Scalia would have done had he still been alive, even with notes kept by the Chief Justice. And that’s why dead Justices do not get a vote on the Supreme Court.
This is nothing more than a ploy that conservatives are toying with to keep Scalia on the high court for the next year while Republicans block President Obama from nominating a living person to fill the empty seat. It’s a dangerous slope that threatens our Constitution, which, by the way, says nothing about letting a dead judge continue to issue rulings until a new judge replaces them.
The bottom line is that Scalia is dead, and while that is tragic for his friends and family, the Supreme Court must move on and that means a new Justice must takeover whether conservatives like it or not.
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