Scalia's Dead and Here's Why That's Huge

Just when I thought that the race for President couldn't  get any more interesting, noted conservative Supreme Court Justice Antonin Scalia dropped dead of being an old fuck today. This means, my friends, that we are living in interesting times, because this is going to massively change the battlefield.


As it stands right now, we have four liberal justices on the Supreme Court: the notorious RBG, Breyer, Kagan, and Sotomayor. Justice Kennedy has historically been a left-middle swing voter, and then we have (had) Scalia, Alito, Roberts, and Thomas on the right. With Scalia dead, this leaves Liberals with 4 votes, Conservatives with 3 votes, and a swing vote in the middle that's come up Liberal when it counts (Gay Rights, Healthcare, etc). 

Conservatives are therefore shitting their pants right now. Obama is poised to appoint a new justice, but that appointment needs to be confirmed by a majority in the Senate. With Republicans currently controlling 51 seats, there's no way in hell they are going to let Obama appoint the Liberal that he wants. However, we've got some huge Supreme Court cases coming this year, including:

Evenwel v. Abbott (Gerrymandering/One Person, One Vote)

Zubik vs. Burwell (Obamacare & Religious Contraception Objections)

Whole Women’s Health v. Cole (Texas Abortion Case where they shut down a shitload of clinics)

So if you're a conservative and you want to see these cases come out with a conservative result, what's a boy to do? Best case scenario for them is a tie at the Supreme Court; the worst case scenario is they just lose because of Kennedy, which is nothing particularly new. What is new is that under no circumstance is there going to be a conservative result to a hotly contested issue that has any precedential value. 

What I mean to say is: no matter what cases come before the court, there is absolutely no way for the conservative cause to get a ruling of law that will be followed forever.  While it is rare, it is not unheard of for the Supreme Court to have a tie decision as a result of a justice being unable to hear a case due to medical issues or recusal. When this occurs, a non-precedent setting judgment is returned from the court that upholds the ruling of the lower court. In the major cases before the court this year, upholding the lower court's ruling would affirm the liberal-favored outcomes reached at the lower level.

But even if the lower court had made a conservative-favored decision, which is then confirmed due to a tie at the Supreme Court level, the result is not binding on future decisions made by lower courts. So Scalia's death absolutely stalls the conservative legal agenda.

Therefore, there are but two paths available to conservatives who want to see their agenda move forward. One: they can wait out the presidential election and hope that they get their man in office. Two: they work with Obama to try and get another swing vote on the court.

Smart Money says they go for option one. They may lose some major cases this year, but if they are playing the long game then they know that they want another Scalia on that court. This means they have to wait for their candidate to get elected and they have to do their damndest to weather the legal storm until then.

But wait!  What about this guy?

I mean, he's leading the national polls for the GOP ticket. If the election happened today, it'd be him vs. Bernie or Hillary.  If you're a conservative right now, your best bet is Donald Trump to lead the legal charge. And guess what? He does not give a flying fuck about your legal issues.  I can only imagine the angst of being a Republican senator right now, where your best bet to appoint a supreme court justice rides on the shoulders of a reality television star.

The bottom line is that there is a very narrow path for the Republicans to get a conservative justice on the court who isn't named Donald Trump's Personal Lawyer, Esq.  

This all swings back around to the Election. Trump's in the lead for the GOP nod but Cruz is hot on his heels. The Establishment pack is tearing itself to shreds like a bunch of fucking morons, like Bush's PAC spending millions on anti-Kasich attack ads as if that meant something. It's an amazingly misguided strategy.

What might come of Scalia's death, however, is a renewed focus on taking out Cruz and Trump. It's what should happen, but the past few months have shown the mainstream candidates absolutely shying away from making real investments (ad dollars) in attacking Cruz and Trump. Tonight's debate is going to be incredibly interesting to see whether and how the campaigns shift their focus. The fate of the entire conservative movement is on the line right now and the GOP is going to be in a complete frenzy over Scalia's death. I expect lengthy discussions of this topic tonight, but I also don't expect the establishment crew to give up on trying to kill each other off just yet.

For Bernie and Hillary, they've got a real chance to change the world here. 24 of the 34 Senate seats up for grabs this year are held by Republicans. Some of these seats are in Illinois, Wisconsin, Ohio, Florida, Pennsylvania, Iowa, and New Hampshire! Obama won all of those states in 2012. They could easily lean blue this time around too. If the democrats win the Senate, then Bernie or HIllary get to appoint somebody. And you know who's an awesome fucking lawyer?

Let me get a hell yeah. He'd take the job in a heartbeat.

Dan DiCiccoComment