Scalia Summons Short Sighted Stubbornness

Scalia Summons Short Sighted Stubbornness


Dear GOP: Do you know what a 4-4 Supreme Court Means?


chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

 (Credit: Mark Avery/Orange County Register/ZUMA Press)

Antonin Scalia died today in his sleep. It is of course sad for his family, and my condolences go out to them, but as a Liberal I don’t mind the opportunity to have a Supreme Court that is 5-4 liberal. But as much as it would like to not be, the Supreme Court is always political, and with the exceptionally bad timing of his death it is going to be very ugly trying to come up with a solution for the now empty chair on the SCOTUS.

Of course, the politicking has already started. Mitch McConnell has already said we should wait until after the election to nominate a new Justice. Other GOP leadership figures have begun to say the same thing.

And on the one hand, of course they are. Not for the “will of the people”, because of course the people spoke–they decided they wanted President Obama to choose any SCOTUS justices for openings between 2013 and 2017, subject to the GOP Senate they also paradoxically chose. But because it would be great politically (from one perspective) and be a great way to kick start the beginning of the next President’s term if he is a Republican–to pick a righteous right wing fire-breather to reinvigorate the court with its greatest conservative lion gone.

The problem is they are wrong. They are wrong politically, for how it will look for them, and it is wrong for what it will do to their cases in the long run. Let’s look at each of them in turn to see why the GOP should, if they are smart, negotiate to a moderate center left Justice–and what the Democrats may say about the deal.

Part I: The Politics

The GOP is trying to stall to bank on the idea that they will win the election. Of course, I don’t think they will win–they overestimate how much of the country hates Hillary, and I think the GOP’s demographic problem isn’t going to get any better no matter who they nominate. But there are greater political things to consider here:

Delaying a SCOTUS nomination is going to try to gain political advantage in 2017 while ignoring the damage it does to the party’s image in 2016.

Imagine the following. Mitch McConnell stonewalls and the Senate refuses to even hold hearings on the matter, while talking about how much they are going to let the people decide. All the GOP nominees say that, that the people should decide.

If Democrats were doing it in an opposite circumstance, would the GOP cry out that it was political malarkey? Absolutely. Would the voters believe them? Absolutely. Because it would be–as I said above, the people have chosen. They chose a Democratic President, and a Republican Senate–so they essentially indicated that they wanted someone in the center.

So the GOP nominees are going to go on until November, along with the GOP Senate leadership, about how it is a matter of giving people the choice while the voters hear what they are actually saying: “We want to wait until we win.” And the more they hammer it and the more the Supreme Court flounders (see below), the more people will see the lie of their words for the truth of their intentions. And the more it will harm them in the long run, because it is an issue that they can keep being hammered on.

Imagine how Clinton OR Sanders will go after the nominee on what they are doing. Imagine if it is Ted Cruz, who has already demonstrated a willingness to hold the government hostage in order to enact his ideology–with explosive results. The rising tide of outrage that the Democratic nominee could surf on against the GOP will be almost literally palpable, and every time they bring it up to scour the GOP with it will take away independent voters and deprive them of any chance of seeing victory in the polls.

That leaves them having cost themselves valuable points and voters short of victory with the goal of letting the people decide, which means come January 2017 they have two choices. They either have to be willing to actually let President Sanders or Clinton have the nominee they want, or they will need to look even more like obstructionists by being…well…obstructionist.

But they can avoid that, if they force themselves to do the unthinkable and the unpalatable, if they are willing to compromise.

Part II: The Jurisprudence

The other reason the GOP wants to consider seriously is what this term does to any hope of them making major roll backs on Obama’s policies or the social changes of the country in the next couple of years, if they leave the sit unfilled.

Right now the court is considering Affirmative Action (Fisher). Coming up this term they are going to consider the latest challenge to Obamacare in the Zubik/Little Sisters of the Poor case, Obama’s immigration plan in the Texas case, and abortion in the Whole Women’s Health case. They were hoping to set long lasting precedents in these cases, with a strong chance to oversee major changes (specifically, to get rid of the thing at issue in all of them).

Well, if they leave Scalia’s seat open, they can’t do anything meaningful. That’s because of a Supreme Court procedural fact.

Occasionally, Justices have to recuse themselves because they participated in the case previously. You see this recently with Justice Elena Kagan, who was U.S. Solicitor General before she was on the court and therefore may have participated on behalf of the Government. When one of the Justices recuses it opens up the possibility of a 4-4 split, so the court decided that those are effectively mulligans. On a 4-4 split the decision of the lower court is upheld, but no precedent is set–so the status quo stays but it can’t be relied on in the future.

Zibek was decided in favor of Obamacare, so the requirement of religious groups to sign the contraceptive waiver would remain.

Texas is being ruled on an injunction, and in case of an equally divided court would go all the way back down to a district in Texas for trial, by my reading.

Fisher was decided in favor of the University, allowing it to use race. Affirmative action survives.

All of these represent basic liberal victories. While we would prefer outstanding victories in all of them, upholding the lower courts would still mean those three things survive. Even if, in immigration, only long enough to have a second round of SCOTUS litigation.

Whole Women’s Health was decided for Texas in the lower courts, so that would be a defeat. But it would still be a defeat that benefits the liberal cause more than the conservative, because it would mean Texas’ restrictions stay in place while no other states may rely on that decision in passing new ones.

So all in all things that the GOP absolutely hates would survive in to 2017, where there could very easily be a Democratic President and Senate even in the face of the likely GOP House of Representatives.

Part III: The Deal

In other words, unless my analysis is completely bunk (which I don’t think it is), delaying the appointment of a SCOTUS Justice is likely to represent a terrible choice for the GOP. They will lose face by being seen as obstructionist in the election, three out of the four suits they care most about will stay liberal victories for the time, and even the one victory they have will not roll back abortion like they would like. And all of this in the demographically uncertain hope of winning the 2016 elections–and if they don’t but do keep the Senate, they will face ire for having clearly lied about waiting for the ‘will of the people’ in the elections.

So then what is their option? Force a compromise. Force the Democrats to nominate the single most centrist person that they can while still being appointable by Democratic senators. Force them to bring someone to the table who might rule their way on one of the issues, in the hopes of not losing all of them. Take the wind out of the Democrats sails by working with them to find an acceptable centrist candidate who can bolster the Kennedy (and formerly O’Conner) swing vote.

And the Democrats might consider taking it, for two simple reasons. One, they are likely to win on three out of the four things they care about. And two, the next President is by no means guaranteed to be Sanders or Clinton–taking a centrist now is a way to ensure that they will have a strong voice on the court even if it is President Cruz. Or even worse, if the next President would appoint Justice Cruz (God forbid).

And let’s be honest…a Centrist in Scalia’s seat still drives the court inexorably the left. Hell, Genghis Khan’s ghost on the court drives the court at least a couple of steps to the left, given how far to the right Scalia was. A guaranteed voice of moderation on the court will still reshape it dramatically, and allow it to walk back some of its more insane jaunts.

Unicorn Voters II: The Perilous Majority of Casey

The Perilous Majority of Casey


Unicorn Voters Part II: The Doom-ening


People continue to talk about being Unicorn voters in this year’s election, despite the fact that I wrote a blog post on the subject. Come on now, people–once it goes on Dishonor On Your Cow, it is definitively settled, right? I mean, it’s not like I’m screaming in to the darkness, right?

Hatred in my Heart Toby

Despite having definitively ruled on the subject, it continues to be a matter of debate. So I thought I would continue to address the issue as well. We’re going to discuss some of the small bits before we discuss the big wooly one people are forgetting.

As a housekeeping matter: A unicorn voter is a term introduced to me by my Unicorn Hunter brother in arms Monjoni, and it is someone like this: They will only vote for unicorns. Someone who is wise and kind, just and fair, honest and thrifty, who has never dirtied themselves with compromise or sullied their ideological purity by having to give an inch. They don’t just want a horse, which is awesome but expensive and occasionally poops in inconvenient locations and needs shots and food and all that normal boring malarkey. They want a unicorn, who is perfect in every way, all upside and no downside and craps out tasty ice cream.

unicorn poop

In other words, they want THEIR candidate, and damn anything else. Because compromise is weakness, and ideological purity is king. They want THEIR candidate, and if THEIR candidate loses then the system is rigged, burn the mother-you-know-what-er down and start over cause Democracy is broke, and they sure as hell aren’t propping it up by voting for someone who ISN’T a Unicorn.

These people are good, honest, hard-working folks. You know, morons.


Part I: They Wouldn’t Get That Many Supreme Court Justices

This one is just dumb, because it ignores the reality of…well, reality. Reality being that thing that doesn’t go away when you stop believing in it.

Some memes, memers, and posters are complaining that people saying that a GOP President would get 2-4 SCOTUS Justices are over-inflating the risk. They’d probably only get one, say these apparent long-time watchers of Supreme Court trends and actuarial tables. I mean just look at Obam…

Wait, he got two. Ok, George W Bus…

Shit, he got two too. Ok, Clin…

RBG and Breyer? Balls balls balls. George H.W. Bush, he only got…

Souter and Clarence Thomas. Fuuuuudge. Maybe I should stop…

Ronald Reagan got 3? Ok, I give up. (Kennedy, Scalia, O’Conner). And he got to move Rehnquist from Associate Justice to Chief Justice, which almost counts as a whole separate appointment because of how powerful the Chief Justice is in finessing decisions?

got nothing

True facts time here, kids. Bernie Sanders is strongest with the 18-25 and 25-30 sets, tapering off in favor of Hillary Clinton after that–this is well born out by the Iowa caucus. That means that for the largest groups of Sanders supporters, they have literally not been alive for a time when a President didn’t get at least two Supreme Court nominations. If they’re in the 25-30 set, they were even born in an era when Reagan got 3 Justices added and also got to pick a Chief Justice. And for the fact that even in ONE term, George H.W. Bush got two. And even IF the next GOP President is only one term and you want to call H.W. an aberration (Jimmy Carter, another one term President, got 0 after all), lets look at years:

Obama: Sotomayor 2009, Kagan 2010.

George W. Bush: Roberts 2005, Alito 2006.

Clinton: RBG 1993, Breyer 1994.

George H.W. Bush: Souter 1990, Thomas 1991.

Reagan: O’Connor 1981, Rehnquist 1986, Scalia 1986, Kennedy 1988.

All but one of the Presidents since 1980 got to fill all of their Supreme Court nominations within a span of two consecutive years. And Reagan got 2 of his picks and his choice of Chief Justice in the three years of 1986-1988. That means that once again for the entire life span of most Bernie Sanders supporters, is hasn’t just HAPPENED that Presidents have gotten to put at least two people on the Supreme Court in less time than one full term, it has all but been the RULE.

Part II: It’s Only One Term (or ‘I don’t understand what average life expectancy means’ and ‘I don’t understand the advantages of the incumbency’).

Another argument thrown out by left leaning unicorn voters is “Four years of a GOP President is not that much time, and four years of a train wreck could be what this country needs to have it be ready for (insert candidate, pretty much exclusively Bernie Sanders).”

Essentially this argument boils down to two elements: 1) Whichever one of the GOP clown car that ends up winning is going to be so poisonous and hideous he only gets four years, and 2) The Supreme Court Justices are not that likely to die during those four years.

Let’s first look at the first (for symmetry, if nothing else). Of the Presidents since 1952, the following have served only one term (along with the reason):

George H.W. Bush (Lost an election)

Jimmy Carter (Lost an election)

Gerald Ford (Chose not to run after serving the rest of Nixon’s term)

Lyndon Johnson (Chose not to run, served his whole ‘first’ term after serving just under 50% of Kennedy’s)

John F. Kennedy (Died).

So of 5 presidents since 1952 who served only one term, only 2 of them did so because they lost an election. The remaining three all served one term either by choice (because of the circumstances of their predecessor’s retirement) or death. Even Nixon was elected to a second term. Ignoring the three that are likely unrepeatable circumstances, that leaves 2 Presidents not elected to a second term versus the other 6 that did.

Two versus 8 (20%) is not the kind of odds I would like to be facing when the prospect of Presidents Trump, Cruz, or Carson. This is due to the fact that incumbency, the fact of being the derriere in the chair at the time the votes are cast, has an overwhelming power behind it. The Facebook meme has it right: Congress is re-elected roughly 96% of the time (See this fine and elegantly crafted link). The odds are not good at all that a popular revolution would rise up and throw the GOP out of the White House because people were sick to death of them–after all, that is the same logic the GOP thought would lead to Obama being a one term President.

howd that work out

But even if we accept the idea that against all odds we can make a GOP President pack his bags after a four year stunt, what about the second part of that? That they’re not likely to die anyway, so what is the big deal.

Just look at these people.


Ruth Bader Ginsburg is an 82 year old woman who has had pancreatic cancer, and looks like she might get blown off the chair if Elena Kagan sneezes too hard. Anthony Kennedy, the 79 year old man next to her with a stent already in his heart, looks like he is someone’s beloved grandfather you drive out to California so your kids can see him because you know the next time you can afford to do it he might not be around.

Hell, the entire front row has an average age of 73.6. John Roberts looks like a fresh faced youngster in the middle there by comparison, and it’s worth remembering that he is 61 years old–i.e. someone four years from retirement age himself. Remove him, and the average age jumps to 76.75.

Anthony Kennedy is 79, Antonin Scalia is 79, Ruth Bader Ginsburg is 82 (and again, a cancer survivor), and Stephen Breyer (the skinny gentleman over Scalia’s shoulder) is 77. And as I pointed out in my last article, the average life expectancy for men is 76 and for women is 81 in this country. Five Supreme Court Justices are over their gender’s respective average life expectancy, meaning that five of the 9 Justices are beating the odds every day they breathe.

So yeah. One of them is going to pass away from wholly natural causes between the years of 2017 and 2021. Scalia might get his wish to die on the bench, or RBG might be filing a dissent against the Grim Reaper. Because if one of them doesn’t pass away from wholly natural causes between those years, they clearly beat the Reaper at a game of Jeopardy and earned immortality.

And even ONE SCOTUS Justice matters, because…

Part III: The Shit You Care About is Barely Holding On (or, The Perilous Majority of Casey)

Let’s talk about Planned Parenthood v. Casey,  505 U.S. 833. Simply put, Casey was supposed to kill Roe. And it almost did, except for some extraordinary measures.

Casey was the first opportunity to overturn Roe v. Wade since two of the liberal justices responsible for it were replaced by justices appointed by George H.W. Bush. It was seen by the conservative community as being the case with which they would go back to the days before abortion was nationally legal, and therefore be able to kill it piece by piece across the country. No less than the United States Government joined in, filing an amicus curiae (friend of the court brief) to argue that the abortion restrictions in Pennsylvania (of which Casey was the governor) should be upheld because Roe was wrongly decided to begin with.

And it should have killed it. Rehnquist, Scalia, White, Thomas, and O’Conner were all appointed by GOP Presidents and who were expected to uphold the Pennsylvania restrictions. The only reason they didn’t was because of extraordinary efforts by Justice Souter to recruit Kennedy and O’Conner, by tailoring specific arguments to them and convincing them to sign on to an unprecedented three author majority opinion that stunned the country. It certainly stunned the other conservatives on the court–as Scalia’s bewildered dissent shows.

Every Scalia dissent...

Every Scalia dissent…

And even with that it ended up being a very messy plurality opinion.

After Casey, the tripartite authors were left as the defenders of abortion–even if only keeping the core holding of Roe, with Kennedy and O’Connor proving willing (both in Casey and otherwise) to allow other restrictions on abortion. Still, they were a fairly stout three keeping their legacy in Casey from being overturned. Souter eventually retired, but he was replaced by Sotomayor who is fairly well assured to keep up her predecessor’s legacy. But O’Conner was not replaced by someone who would keep that legacy going, being ultimately replaced by Samuel Alito–who never met an abortion restriction he didn’t want to uphold.

Because Souter, a consistent liberal, was replaced with a consistent liberal his vote is safe. But because O’Conner, who upheld abortion rights, was replaced with someone who won’t, that leaves the inconsistent Anthony Kennedy (79!) as the sole swing vote to preserve it.

Think about that. A 79 year old man is the only thing keeping Roe v. Wade from being overturned. A 79 year old man with a stent in his body to keep an artery open that has been in there for going on ten years. A 79 year old man who people joke about needing hugs and attention because he is the sole swing vote. That is how thin our hold on abortion rights are, how close we are to being set back to the patchwork abomination of inequality the country was before that decision.

And pretty much everything else you care about, if you’re vacillating between Sanders and Clinton, is on the same razor thin margin. For that matter if you’re debating between Cruz, Trump, and Rubio you might consider that all the things YOU care about are only secured by one 5-4 vote.

Citizens United? 5-4 (for the operative parts).

Heller v. DC? 5-4.

McDonald v. Chicago? 5-4.

Hobby Lobby v. Burwell? 5-4.

And on the side of things that were decided in the way liberals approve of:

Obergefell v. Hodges? 5-4.

Every single one of the ObamaCare decisions? 5-4.

It’s said that the only math that matters on the Supreme Court is 5-4. One change either way, and things either switched or are locked down completely. If Kennedy or Ginsburg retire or die and they are replaced by whatever far right Originalist they President Cruz drags out of BYU or Ave Maria Law School (America’s most conservative law schools), then the 5-4 decisions become 6-3, with the accompanying feeling of solidity in the mind of the legal community. Conversely if Kennedy or Scalia die and are replaced by a living constitution hippy from Charlotte School of Law or Northern Illinois University (most liberal university from the same article)* then the next Obergefell and ObamaCare are 6-3, and all of a sudden guns, money in politics, and religion go 5-4 the other way.

There is literally nothing more important than that. Supreme Court decisions have a weight to the that justices are rare to overturn, because once you get on the court you rarely want to think about your legacies being thrown out before your body is cold. Stare decisis, the principal that a precedent should stand unless there is a compelling reason otherwise, mingles with pragmatism to drive even Justices who talk a game about not caring about precedents to suddenly caring. Decisions are hard to overturn, painful when they are suddenly reversed,


Four years of a Republican President, with a Republican House and likely Senate, is enough to tip the scales for a long time to come. There is no reason to expect the next President will NOT get two SCOTUS nominees, as for the last 36 years they have always gotten two nominees per Presidency–even if they only served one term like George H.W. Bush. There is no reason to assume that a GOP President would only be one term, and the damage they could do is incalculable.

Don’t be a Unicorn voter. Don’t let perfect be the enemy of good, and don’t forget that the stakes are far higher than one single candidate. And if you think your candidate is more important than your beliefs or your issues, I have bad news: You aren’t supporting a candidate, you’re joining a cult.


So remember kids: Even if Unicorns poop out ice cream, if you eat it all you’re eating is poop. Vote smart, vote for issues that will define our country for decades. Don’t vote Unicorn.



*NOTE: Of course, they won’t hire anyone from BYU, Ave Maria, Charlotte, or Northern Illinois. They only hire clerks and Justices from the Ivies, because of course that’s where the only people who can know anything about law come from, right?