Timing of Scalia’s Death a Gift to the Left

Supreme Court Justice Antonin Scalia, who died earlier today in Texas, may have managed by the accident the timing of his demise, to have done a favor to his opponents. As readers know all too well, Scalia was noteworthy for his consistent right wing position and his lack of inhibition about making creative arguments to support it.

Some pending cases before the Supreme Court had been expected to split on ideological lines, meaning a 5-4 favoring conservatives. With Scalia dead, that moves the anticipated vote to 4-4. A deadlock reaffirms the lower court decision.

One important case up for 2016 is Friedrichs v. California Teachers Association, in which the plaintiffs were seeking to reverse an appellate court decision allowing unions to impose fees on non-members for collective bargaining. As Time put it, “If the court issues a ruling this year, it is unlikely to break with the settled constitutional interpretation that unions can do so.”

Other cases scheduled for this year that are likely now to deadlock if they are heard as planned include, per ThinkProgress:


United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.


Another case out of Texas, Whole Woman’s Health v. Hellerstedt, also could lead to confusion if the Court evenly divides. Whole Woman’s Health is the greatest threat to Roe v. Wade to reach the Supreme Court in a generation. If five justices back the Texas law in this case, it is unclear that there will be any meaningful limits on states’ ability to pass anti-abortion laws.
Without Scalia’s vote, however, the chances that the Supreme Court will uphold the Texas law outright is vanishingly small. Should they split 4-4, however, the Fifth Circuit’s decision upholding the Texas law will stand and states within the Fifth Circuit (Louisiana, Texas and Mississippi) will most likely gain broad discretion to restrict abortion while Scalia’s seat remains open. Meanwhile, the fate of the right to choose would rest upon which federal appellate circuit a woman happened to reside in. Women in fairly liberal circuits would likely continue to enjoy the same rights they enjoy under existing precedents, while women in conservative circuits could see their right shrink to virtual nothingness.

Birth Control

Geography could also play a significant role in deciding women’s ability to access birth control. To date, every federal appeals court to consider the question but one, the Eighth Circuit, has upheld Obama administration rules enabling women to obtain health plans that cover birth control even if their employer objects to contraception on religious ground.

There is a good chance that Justice Anthony Kennedy, a conservative who occasionally votes with the Court’s liberal bloc in politically charged cases, could vote to uphold these rules as well, producing a 5-3 vote. If Kennedy votes with the conservatives, however, women’s access to birth control will vary from circuit to circuit. Though it is likely that most circuits will follow the majority rule and uphold the rules, women in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) will not be as lucky…


Similarly, the plaintiffs in Evenwel v. Abbott, a case that could have effectively forced many states to redraw their congressional maps in ways that would give more power to white voters and less to communities with large numbers of immigrants, almost certainly will not have five votes. Because the court below ruled against these plaintiffs, states will not have to redraw their maps, for now.

Obama has said he intends to nominate a new Supreme Court justice. Republicans are arguing that the decision should be left to the next President and Congress. Aside from sheer the knee-jerk obstructionism, it’s hard to see the justification for this position, given that is is almost a full year before a new President would be sworn in.

But this makes Scalia’s death a gift to the “left” which means both progressives and their Vichy Left hangers-on. Democratic party turnout has been terrible in recent years, and for good reason. The fact that the economy is unlikely to be doing much better by election time (indeed, many economists are using the “r” word) would normally be fatal to Democratic party prospects unless Sanders manages to wrench the reins from the hand of the apparatchiks (as in he is so clearly hostile to the policies that caused this mess that he can credibly present himself as part of the solution rather than part of the problem). Having a protracted fight over the Supreme Court can only be a plus for Democratic party turnout (and Democrats are less consistent about voting than Republicans) and if Clinton prevails, might be one of the few things that might get some Sanders supporters to hold their noses and vote for her if she were to become the nominee.

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  1. bob

    Dick Cheney needed a soul. His 3rd one was already on borrowed time.

    They found one that was mangled enough to transplant and not reject the host.

    Decisions were made.

  2. alex morfesis

    Que triste…just kidding
    Ding dong
    Scalias dead
    Scalias dead
    Scalias dead

    Ding dong
    Anton scalias dead

    And what will baby bam bam scalia do now for all his korporate dog clients now that daddy is gone…

  3. Matthew Saroff

    Unless Obama already has someone lined up, there isn’t time.

    My guess is that there will be at least 3 months to vet this.

    1. Yves Smith Post author

      Au contraire. the longest it ever took to fill a vacant Supreme Court seat was 100 days, with Clarence Thomas, and that was with the Anita Hill scandal (which ate national headlines for a full week) holding things up. That history will make the Republican obstructionism obvious for what it is.

      And if the Administration doesn’t have an existing list of nominees, they are really out to lunch. Ruth Bader Ginsurg has basically said she’s leaving feet first, and she was the more obvious candidate to die in office, but Scalia at 79 was another obvious death watch.

      1. Procopius

        It’s a blessing that The Notorious RBG show no sign of losing her mental sharpness. She’s 82. Kennedy is 78 and Breyer is 76. If I were selling life insurance I’d ask for very high premiums from any of them. It would not be surprising if Obama had the opportunity to nominate three justices before his term ends, but the Republicans are certain to obstruct completely. They don’t care about the whining from the left. They’ve been working on capturing the Court for forty years and won’t let it slip out of their grasp.

      2. societax

        Lewis Powell stepped down in June 1987. Anthony Kennedy, who was President Reagan’s third choice, was nominated in late November 1987, after the Senate rejected Robert Bork (roughly 100 days after his nomination in a bruising political fight) and Douglas Ginsburg withdrew, and the Senate approved Kennedy in February 1988. That was approximately 200 days from vacancy to confirmation.

    2. Lambert Strether

      Right now the Democratic establishment is engaged in a war of movement with Sanders, because Sanders can “live off the land,” as it were, because of his small-contributor funding model.

      They would like nothing better than to return to a war of position, and three (or six) months of trench warfare in Washington over an identity politics-driven Supreme Court nominee would be ideal for this purpose, and would decapititate the Sanders movement-in-embryo if it got involved. (I’m not even sure of a litmus test; Clinton, while Hoovering up SuperPAC money, has also committed to campaign finance reform.)

        1. Lambert Strether

          I struggled over that sentence and that very word; I was pressed for time and didn’t want to pull out the full quotation from the link, and didn’t want irony marks to be misread as quote marks, and so deleted them entirely!

          It’s nice to be so closely read :-)

      1. Michael C

        If asked about who he’d nominate, Sanders should suggest, “Hillary for Supreme Court.” since she has experience and has a record of getting things done.

      2. jgordon

        I don’t think most (or at least a good portion of) Sanders supporters are going to support Hillary in the general no matter what happens. This kind of attitude is only guaranteeing that Trump will pick the next Supreme Court justice.

        1. Brooklin Bridge

          This kind of attitude???

          Are you referring to Lambert’s comment? His point seems to me more insight than attitude. A credible one too, unfortunately. There has recently been talk in the NC comments section of war being the necessary pry-bar to dislodge Sanders from people’s desperation for economic justice; that is, to scare em back into the Hillary slaughter pen. War is not all that far fetched given the whacked out, what-ever-we-want at any cost, state of our neolibs and neocons, but even they must be aware that as an election gambit, it’s a bit blunt. The point is, such an assumption on the part of the commentariat doesn’t come out of nowhere. It is obvious the PTB are desperate to avoid a real challenge to status quo. A knock down, drag out fight over a Supreme Court justice, however, would be a far more reasonable balance of scare tactics vs. relatively hollow threat – since neolib or neocon the selection will be pro-corporate anyway.

          Your point that people will simply not vote for HIllary, assumes too much. It assumes more people have “caught on” and agree that Hillary can not be construed as “lessor evil” than really have caught on. It also assumes that analysis should be criticized as attitude for influencing the outcome.

      3. Brindle

        Yes, Scalia’s passing is great for a siege of identity politics driven GOTV narratives. This helps Clinton more than Sanders, and the MSM is more than willing to ignore economic inequality issues (class) which are Sanders bread n’ butter.

        1. NotTimothyGeithner

          Citizens United is an issue, and the polling against the GOP candidates matters even for issues Hillary is “strong” on.

          1. craazyboy

            Hillary is sure to run with this one. A great opportunity to advance her “Representative Of The United Moms” platform strength.

            The time is now for a Supreme Court Representative Of The United Moms nominee! ( SCROTUMs)

      4. Thure

        That’s a very good point. This is a great tactical opportunity for the Obama administration to refocus the media on a Supreme Court nomination.

        Double edged sword though since Bernie is still a standing US Senator and Hillary is not. I.e. he gets to comment liberally on any SC nomination and Hillary is the outsider.

        This could get really comical if Trump and company chime in.

    3. Art Eclectic

      It has always been my understanding that there’s a list of possible nominees. Names may come and go, but there’s always a short list of options in the event of an opening. With this being an election year the dynamics may change a bit but that list has to already take into account the fact that the Senate is help by the GOP.

      I bet Obama has a nomination out within days after the official services.

    4. Crazy Horse

      “Timing of Scalia’s Death a Gift to the Left”

      Is there really still somebody out there who still believes that Obama represents the Left? After 7 years of unpunished bankster theft, drone assassinations, destruction of civil liberties and liquidation of the middle class that the Bushes, Nixon, and Regan who preceded him only dreamed of accomplishing?

      1. Vernon Hamilton

        No, no reasonable person thinks Obama represents the left. This gift to the left is not about Obama. No one is saying that. The (R)s may well stone wall his nominee all the way to the General Election – the gift to the left is something significant to rally around and get out the vote.

    5. Molly

      I think it’s unlikely that Obama hasn’t been preparing for this eventuality (not necessarily Scalia, but RBG or one of the other older justices) for quite some time, and would have a candidate vetted and ready to roll out within a few weeks at most. And there are a couple of likely candidates that already were confirmed for their current judicial posts unanimously, making a sudden reversal difficult to justify.

      But these are the Republicans, of course, so anything is possible. And the fight will get ugly.

      1. Lord Koos

        I’m guessing the strategy would be to roll out a few very left wing “losers” that the Republicans won’t even consider and will fight about for some months, then after much sturm and drang, nominate someone a little left of center that the Repugs will have to accept.

  4. Gil Gamseh

    A gift to humanity. The palpable joy at the passing of this deformed and very ugly jurist is good, but also a sign of our relative powerlessness. In a genuine democracy such a creature would not be allowed to have such a hold on such great power.

    1. Tertium Squid

      Sheesh. I’m not used to comments on imgur being more thoughtful and compassionate than NC…


      Not-MLK put it best:

      I mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy.

      1. Tinky

        Had everyone followed that arguably over-sensitive path, the world would never have received the gift of Christopher Hitchens’ goodbye to Jerry Falwell, and that would have been a great loss.

      2. Gio Bruno

        Look. . . convention is what has folks speaking kindly of Scalia. He was NOT kind to others; so his Maker will decide his spirit’s fate.

        Me. I couldn’t be happier. The world is a better place when it is populated with self-aware, self-effacing folks who are more enamored with the beauty of the planet than their own ego.

      3. Plenue

        Uh, yeah, no. He was a scumbag, pure and simple, and Ginsburg was a fool for hanging out with him. And he didn’t “represent of the valid interests of your fellow Americans”; he represented money and those who possess it. I applaud his death, and make no apologies for it.

        I don’t particularly value any of the Supreme Court judges, or even the anti-democratic institution itself.

    1. Procopius

      I think Bill Black is better where he is, as is Elizabeth Warren. I’d like to see Jack Balkin nominated.

      1. GlobalMisanthrope

        Sri Srinivasan was unanimously confirmed to the United States Court of Appeals for the District of Columbia Circuit. In 2013. Clerked for O’Connor. First Asian…

          1. Left in Wisconsin

            Yes, although I will say that among my teenagers’ friends, including many from different Asian ethnicities, the identifier “Asian-American” seems to be entirely accepted. Which I find very confusing.

    1. bob

      Hell ya! They’re in primary season. The MSM has just been begging to bring the supreme court issue into the programming. It should become part of the campaign circus.

      The 1/3 of senators running this year, a prez year, are also going to be affected, big time.

      1. Steven D.

        Democrats always fall back on the Supreme Court as the one undeniable reason to keep out the Republicans but when asked why all they can say is because abortion. If they play to type they’ll screw up this opportunity and ignore power that is just lying on the ground waiting for someone to pick it up.

        1. redleg

          I fully expect a grand bargain nominee that hails from Goldman Sachs, one that the GOP can’t refuse. They’ll pop smoke and approve when the said smoke clears.

    2. Cry Shop

      Seriously, who would be worse, Hillary or Barack? Random luck, or what ever it is that people mistake for a god, better help the human species out of this one. The odds are grimly against both Sanders and balance of humanity.

      Cass Sunstein, a favorite law professor of Obama tweeted this :

      “Devastated by Justice Scalia’s death. One of the most important justices ever, a defender of the Rule of Law, and a truly wonderful person.”

      …and no, Sunstien isn’t being waggish.

    1. Yves Smith Post author

      No, see comment above, SC historically is much faster. It will be easier to make the Republicans look bad on this one. This is much higher profile than, say, an SEC commissioner.

        1. Procopius

          Why would they care if Dems think they look bad. Their base will love it. Remember that’s at least 47% of the voters (well, in 2012). You think Trump is not going to demand he be given the chance to pick an outstanding, really terrific judge? You think Ted Cruz is not going to demand he pick the new justice since he is the Chosen One? You think they won’t be able to stand fast? All it takes is one Senator. You really think you can get four Republican Senators to vote for cloture? So what if they look bad to us? It never hurt them when they shut down the government.

          1. Art Eclectic

            The base isn’t the problem, every election hinges on swing voters in just a handful of states.

            Having a vacancy is a way to fire up the base and get them out to the polls for both sides. But refusing to confirm a vetted nominee as a political ploy won’t play well with those swing voters. So, the GOP has to choose between amping up the base turnout and turning off the swing voters. I think they try to amp up the base voters, they’ve already lost a significant number of swing voters with Trump and Cruz leading the polls.

            1. optimader

              The base isn’t the problem, every election hinges on swing voters in just a handful of states.

              Exactly, the way I see it the polarized base on either side isn’t in play, a waste of resources to attempt religious conversions. It’s a long time to election day to stonewall a SC appointment, a protracted delay might risk more bone-fide swing voters that self identify as social moderates than gain them.

              I must confess OTOH, I am still having a hard time with the notion that a significant number of voters that haven’t already decided to vote for HRC will be taking that leap, but that may just be the taint of my own bias?

            2. Crazy Horse

              Every election hinges on a handful of Diebold voting machines with transparent software so that the proper outcome can be produced.
              There. Fixed it for you.


          2. FluffytheObeseCat

            Republicans can and will bork any Obama Supreme Court nominee. But they’ll enhance Democrat voter turn out when they do. It’s not “swing” voters they’ll be affecting, it’s probably-wouldn’t-show-up-otherwise voters. I don’t know if we really have “swing” voters in Presidential elections any more. Except maybe this year, when there are some who’d vote for either Trump or Sanders, but no Establishment hacks.

      1. run75441

        I agree it will definitely be Repubs Albatross if they delay. Dems just need a good candidate and not another Kennedy.

  5. kj1313

    Hmmm I’m wondering if a long period of obstruction will hurt those in tight Senate races in swing states. I’m not sure Mitch will be able to keep obstructing if polls show voters start breaking for the Dems.

    1. Lambert Strether

      I’m not sure how the “obstructionism” argument works for anybody but Dem loyalists. We’ll have to see. (Obama had his boot on the Republican throat in 2008. He gave them a hand up, dusted them off, and let them right back in the game (after immediately gutting OFA). People remember the hope and change stuff turned out to be crap.)

      1. Yves Smith Post author

        It depends on how well the Dems message. The channel by which this could help the Dems is turnout. Turnout was absolutely terrible in the 2014 election, in some districts the lowest % turnout since the 1800s when it was a hardship to vote.

        1. Lambert Strether

          The Dems will turn the nomination into identity politics because that’s what they do. If as you say they don’t butcher the message, that could lead to increased turnout in some districts, not necessarily in others. Presumably the campaigns (and the White House) are running those numbers now, and have an idea of which states and which districts matter.

          Black woman? Hispanic woman? White woman? ____ woman with ____ spouse? Even ____ man with _____ spouse. And all within center-right constraints, with an appropriate litmus test for progressives that will not, in the end, mean very much.

          If only Eric Holder were a woman!

          1. Yves Smith Post author

            They can see this isn’t working so well with Hillary, so they’d be better to push issues that map onto identity politics but (in theory) have broader constituencies. There are still people who believe in the ACA. They can blame Citizens’ United on this court (which is savagely ironic given Hillary’s dependence on big $). Immigration. Abortion rights. Etc.

      2. Chromex

        Well however bad the nominee Obama chooses, that nominee , if confirmed, will not be close to Scalia politically- none of Obamas nominees have been. . I can see, if the nominee is confirmed that Citizens United MAY be in trouble. I have no use for Obama but his appointments have proven to be very un-Scalia like.
        I have a tight race between Hillary and Trump. I think Bernie beats Trump. If the republicans obstruct, the dem nominee can say “I pledge to nominate Obama’s choice”. If Trump wins. and the obstruction is sucessful , whoever he nominates will likely be no worse than Scalia. However the obstruction precedent will have been set.

        1. Brooklin Bridge

          Interesting. But by your reasoning if Sanders wins the nomination and Obama picks a corporate whore for SCJ, Sanders might well have reason to avoid making such a pledge.

        2. ian

          What if Obama’s nominee is bait dangled in front of the GOP, actively encouraging them to not confirm him/her? Perhaps a well-qualified, but left-of-center black woman?
          Might have an influence on the election.

        1. optimader

          Liberals- racist attacks That may be, many people project race biases into their POVs. Surely Clarence Thomas is demonstrably one of them.

          Personally, I loath his POV, personal conduct (I happen to believe A.Hill) and his SC positions irrespective of his race or gender.

          As well, I think his nomination as a replacement for Thurgood Marshall was a cynical choice on a couple levels, including racial bias..

          1. Skippy

            Obama pick a progressive or moderate…. the SCOTUS has been a stocked pond for a long time… who could only get in State of New York Mortgage Agency, and the New York City Campaign Finance Board member and Yale Graduate which had some identity political points by being ethnically challenged.

            Skippy…. I guess progressive means making impassioned dissents on issues of race, gender and ethnic identity e.g. we are people too.

  6. Paul Tioxon

    Mitch McConnel is simply extending his rule or ruin, the ruin part, scorched earth policy of shutting down the government in as many ways as he has the authority to obstruct with impunity. Sticking strictly with the Judicial branch, filling the empty federal judge benches is a favorite pass time of contempt for democracy, people and Obama. People nominated have waited years only to give up entirely in order to move on with their lives, their positions in academia, law firms or lower levels of courts anything but the republican enforced limbo of preventing lifetime judgeships filled by the democratic president in hope of gaining the WH back at some point and stacking the court system with as many Jr Scalias as they can dredge up.

    To give you an idea of just how unusual this is and how destructive of the functioning of government the republicans are currently pursuing, here is a link to Mother Jones, but any news source can reveal the same delaying tactics and unfilled courthouses resulting in not only a back up of nominees but a back up in cases being heard.

    As you can see, same shit, different judge appointment delaying tango.
    The Senate is on pace to approve the fewest judges in more than half a century

    “Republicans have been gumming up the works at each step of the process. Judicial nominations are generally put forward by the president only once they’ve been approved by both of the home-state senators. Republicans have been slow to give their consent to any nominee, with 55 judicial vacancies currently lacking a nomination. “If you look where these empty seats are, they’re almost all in states with at least one Republican senator,” says the Alliance for Justice’s Kyle Barry. Even when Republican senators appears to support a nominee, they’ve dragged out the process. Sen. Marco Rubio, for example, recommended Mary Flores to the White House for a spot on a Florida district court, but has been withholding his so-called “blue slip” approval form, preventing her from moving forward to a hearing before the Judiciary Committee. (He says he is still reviewing her qualifications.)

    Even after a judicial nominee has cleared the Judiciary Committee with bipartisan support, Senate Majority Leader Mitch McConnell has been slow about scheduling votes on the Senate floor, where 11 nominees are awaiting confirmation. The delays generally haven’t been due to controversy about the nominees. The last two judges confirmed, for district court seats in New York, were approved by votes of 95-2 and 88-0, respectively.”


  7. Zerosum

    It would’ve been nice if he could’ve gone like Javert at the end of Les Miserables. But I’ll take it anyway I can get it.

  8. MaroonBulldog

    Yves, regarding the immigration decision, personally, I believe at least 5 or 6 votes will be found to to reverse what the Fifth Circuit did, so I don’t think there is need to be much concerned about a 4-4 deadlock. But I also have a different take on the implications of a 4-4 deadlock.

    As stated, I don’t believe this scenario is likely to play out, but IF the Supreme Court were to deadlock, 4-4, on the 5th Circuit’s immigration decision, then technically, the status of the 5th Circuit’s decision would be “affirmed by an equally divided court,” which would mean that the nationwide injunction would remain in place–because it was affirmed by the Supreme Court. It would also mean that any action by an officer of the executive, in violation of that injunction, would expose the officer in question to liability for contempt of court in the district court that issued the injunction in the first place.

    In the unlikely event that this scenario does play out, you speculate about what would happen if another district court in another circuit should issue a contrary order, and your comment assumes “there would be no possibility of Supreme Court review.” I do not share that assumption. While federal judges are not notably courageous about contradicting another federal court’s injunction that has been “affirmed” by the Supreme Court, even by an equally divided one, of course there would be a possibility of Supreme Court review if a different appellate circuit affirmed a such contrary decision in a different case with different parties. If there were such a contrary affirmance, there would be a “conflict iamong the circuits”, which is one of the most compelling reasons a lawyer can invoke when petitioning for Supreme Court review. And, if it should come to that, there would be no binding precedent at the Supreme Court level, on the point at issue, when the second decision came up for review, because what happened in the first case– an affirmation by an equally divided Supreme Court–does not establish a precedent in future cases at the Supreme Court level. So it might not be insurmountably difficult to get a second case to the Supreme Court for review, and the Supreme Court would not even have to overrule any precedent to affirm a second decision that contradicted the first one.

  9. TMc

    Well after watching Obama sell out progressives since he took office I wince in anticipation on who he might nominate in his grand appeasement style.

  10. Lambert Strether

    I watch the Clinton campaign Hoovering up Scalia-enabled SuperPAC money while simultaneously arguing that we should never appoint another Scalia with a certain degree of bemusement.

  11. voteforno6

    Maybe I’m just being a little conspiratorial here, but I would be surprised that, after a “respectful” period of mourning or whatever, Clinton partisans will start pushing the line that all Democrats must line up behind the eventual Democratic nominee, then proceed to throw the nomination to Clinton. It’s essentially the same playbook that they’ve been using for years now, with decidedly mixed results.

    1. flora

      “respectful period” ??? Heck, that was the topmost post on her facebook page yesterday as an argument to nominate her over Sanders.
      Whereas Sanders’ page offered condolences to Scalia’s family and colleagues on the SC.

  12. allan

    What mean left?

    In selecting Supreme Court nominees, Obama has relied heavily on the advice of Vice President Biden, a former Senate Judiciary chairman. Biden has demonstrated again and again a strong working relationship with McConnell, having previously negotiated several tax and budget deals. The court nomination may hinge on Biden’s ability to reach a deal with McConnell again.

    Oh, joy.

    1. flora

      Obama to follow in the footsteps of GOP Pres. William Howard Taft? Actually, Hillary seems to be following in the footsteps of Taft.

  13. Jesper

    I find it amazing that it issues like the ones mentoned above aren’t decided by the legislative but instead by the judiciary. Seriosly, shouldn’t these issues be resolved by the elected legislative rather than left for some appointed for life legal-professionals to decide?
    Rule by lawyers isn’t the same as rule of law.

      1. Jesper

        Yep, something to read on the importance of separating the powers. Case-law is about writing law and the judiciary writes the case-law in their findings -> taking some powers from the legislative. My opinion is that the judiciary is taking too much legislative powers.

        Maybe you’d like to clarify your opinion on the matter? Or prefer to continue with suppression techniques?

        1. GlobalMisanthrope

          Your comment suggested to me that you didn’t understood the process. I don’t see how offering a link that answers your original question is using “suppression techniques.”

          My opinion is that the system as constructed largely works on balance. I often disagree with the outcomes, but that’s the thing about democracy: often times the other side wins.

          1. Jesper

            Well, your link didn’t answer the question and recommending someone to ‘bone up’ is quite easily interpreted as an insult and an attempt to shut someone up. I suppose it is again a matter of opinion on how your post post comes across. I’d agree to disagree and move on.

            1. GlobalMisanthrope


              You’re right, “bone up” was a provocation. Meant to draw you out, not shut you up.

              You’re wrong. It does answer the question. See pages eight and thirteen.

              1. Jesper

                Nope, you’re wrong it doesn’t. Debating by assertion is rather pointless don’t you think?

                The legislative could amend the constitution, the constitution has been amended in the past. The reason why those cases are for the courts to decide is because the legislative does not want to amend the constitution to clarify and decide those issues. Instead the preferred method appears to be for the executive to appoint biased judges to get the desired outcome. You appear to like it, I don’t.

                1. GlobalMisanthrope

                  Thanks for finally admitting that you were being disingenuous from the beginning.

                  The variety of outcomes made possible by the checks-and-balances system—including the opportunities for chicanery, which, Lord knows, don’t exist in the legislative process you laud— are only “amazing” to someone who doesn’t understand the design. That’s why, despite my smelling a troll, I suggested that a review of the design of the system might relieve you of your amazement.

                  And, yes, the link is to a description of the system of checks-and-balances through the separation of powers, which answers the question of how the amazing outcomes to which you refer are possible. You insist that a description of how such things are done is not sufficient to explain the outcomes. And I agree, you would have to think about it in order to see how it is. But, think? No.

                  Why? Because your amazement isn’t genuine. It’s really just indignation at the system’s not being designed to your simplistic liking—I refer again to the chicanery-proof legislative process that you recommend for settling all questions. No, you want “the legislative” to amend the Constitution to answer certain questions that would otherwise be answered by the judiciary.

                  First, and at the risk of coming off as a smart-ass, I’ll refer you here to the process of amending the Constitution (which you’ll find using the original link I provided) because you clearly don’t understand that either. But, second, please explain what a system to your liking would look like and how, exactly, it would work.

                  In other words, do the heavy lifting and then we can talk. That is, in the unlikely possibility that a conversation was ever what you were after.

                  1. Jesper

                    Trolls trends to do things like you admitted to doing here:

                    You’re right, “bone up” was a provocation. Meant to draw you out, not shut you up

                    I’ve stated my opinion and my guess you’ll continue with provocations until I sink to your level.
                    Pointless to go on with this.

    1. flora

      Majority rule, minority rights. The SC protects, or is supposed to protect, constitutional rights – including the rights of the minority – in the face of any majoritarian effort to revoke or cancel the rights of those in the minority. For instance, people who want to say politically unpopular things can’t be legally denied the write to say those things by majority vote. A lifetime appointment removes the Justices from direct majoritarian control.
      (Never mind how corporations are claiming 1st Amendment rights to deny others the right to criticize them. It’s an up-side-down world when persons rights are extended to corporations. But that’s an argument for another day.)

      The cases that come before the Court are often results of legislative action that may not pass Constitutional muster.

  14. ScottW

    The Republicans were able to jam through Roberts, Alito, Thomas and Scalia. But Obama will try and convince everyone he could only get a right of center (aka very conservative) justice through Congress.

    Yet another example of getting exactly what he wants by blaming the obstructionist Republicans. Is it ACA, Obamacare or Romneycare we have?

    1. neo-realist

      In somewhat of a defense for Obama, it is the bigger fault of the DNC leadership for ceding the congress to the republicans by throwing away the 50 state electoral strategy, running losing uninspiring neo-liberals for office and also not doing anything to push legislation for electoral transparency in the voting process to short circuit the cheating shenanigans by republicans and voting machine companies w/ their gamed proprietary software which probably help them win some of those congressional seats. As a result, they have (willingly?) put themselves in the position of saying “we can only get this neo-liberal approved by congress because the republicans have too many of their own to overcome.”

      1. Lord Koos

        I’ve been mystified by the DNC’s lack of strategy or response to the gerrymandering and redistricting by Republicans. Outside of the presidency I sometimes wonder if winning at the state level is important to them — if so, their behavior doesn’t seem to make sense.

  15. steviefinn

    Mother Jones article: ” Who Is Sri Srinivasan, Obama’s “Supreme Court Nominee in Waiting”?

  16. GlobalMisanthrope

    Interesting analysis @SCOTUSblog:

    UPDATED Sunday 8:48 a.m. The Senate is currently in recess until February 22. It began on Friday. Whether or not this opens an opportunity for a recess appointment depends upon how Senate leaders interpret an adjournment resolution approved last Friday. That will determine whether it will meet for brief activity during the recess, which could close that opportunity.

    I feel like a song!

  17. so

    I think the Clintons had something to do with his death. Texas is kind of close to Arkansas aint it.
    he he he ……….

  18. Denis Drew

    Republican obstruction-for-the-sake-of will be highlighted by this issue in a way everyone can clearly understand — should be worth 5% for the Dem pres candidate.

    1. flora

      Not really for-the-sake of. It’s worked very well to the GOP advantage in creating a more conservative federal court system. It’s a 30+ year tactic to obstruct Dem appointments to the lower bench in wait for a GOP pres to make appointments. The SC is much harder if not impossible to run that play on, but if you shift the lower court appointment to the conservative side then much is gained from the GOPs point of view. Also creates a bigger pool of conservative jurists from which to pick SC nominees. The GOP is always playing a long game.

  19. wbgonne

    A profound change to the Supreme Court with the Conservative giant’s passing. Perhaps emblematic of the sea-change around us. One interesting note re: the politics. With Scalia being arch-conservative, there should be less hysteria from the fauxgressives as to his replacement since they will be satisfied with any pro-abortion jurist that Obama nominates. Because that is so, the genuine Left has an opportunity here to demand an economic progressive. Obama, of course, wants another corporatist and he will undoubtedly use GOP opposition to yet again argue that the neoliberal, neoconservative pro-choice candidate he nominates is the only way forward. The fauxgressives and Hillary will be satisfied but the Left — and Bernie, presumably — will not. So the politics may be interesting.

    1. Eduardo Quince

      Re: “profound change”

      The profundity of the change remains to be seen. I wouldn’t be surprised if the Senate, as long as it remains controlled by repubs, refuses to confirm Scalia’s replacement until a repub is in the White House, no matter how long they have to wait to do so.

      1. Lord Koos

        They can’t wait too long, since cases in which there is a tie would then revert to the lower courts’ decision, not always in the Republicans favor.

    2. Brooklin Bridge

      I’ve never heard the genuine Left raise a hearable, much less influential voice on the selection of a SCJ. Bernie is dancing around one issue after another that involves Obama (carefully picking his fights would be another way of putting it) to avoid seeming too radical. I’m not blaming him – don’t know how he could tackle everything head on all at once even if he wanted to – and I’m not sure he could successfully take this on as well without playing right into the hands of HIllary, Obama and TPTB.

      1. wbgonne

        I’ve never heard the genuine Left raise a hearable, much less influential voice on the selection of a SCJ.

        The question is whether the times have indeed changed. The Scalia replacement is a freebie for the Democrats because whoever Obama selects will be pro-choice, unlike Scalia. This should effectively remove abortion from the identity-politics menu. Since that is guaranteed, the genuine Left — assuming it actually exists — should demand more of Obama’s selection, namely, that the nominee be a genuine progressive, i.e., pro-labor, pro-health and safety regulation, pro-civil liberties. The GOP will oppose any and every Obama nominee so the Democrats have nothing to lose by nominating a non-authoritarian, non-neoliberal. The sharp relief comes because Obama himself wants an authoritarian neoliberal justice, Obama does not want an economic populist and civil rights advocate. This may become clear if Sanders — or the (theoretically) animated Left that supports his candidacy — seriously challenges Obama’s presumed corporatist, authoritarian selection.

        1. Brooklin Bridge

          Always love the cut of your jib, not to mention how you set it to go as close to the wind as possible, but there are a lot of IFs in that perceptive paragraph.

          1. wbgonne

            Yes, I think we now may be living in interesting times, which creates a lot of uncertainty, but is far better than our prior state of abject despair (or maybe I’m projecting a bit there).

        2. Lambert Strether

          “This may become clear if Sanders — or the (theoretically) animated Left that supports his candidacy — seriously challenges Obama’s presumed corporatist, authoritarian selection.”

          Best to strike first, if possible. Define them before they define you. Lay out the criteria and then demand they be taken into account. Take the initiative away from the Democrat establishment, who IMNSHO regards Scalia’s death as a veritable gift from the Gods — “ZOMG!!! The Supreme Court!!!” has been their goto move, their trump card, their killer argument, for literally years, and now here it is in real life, an extended orgasm of I-told-you-so’s. Now, that doesn’t mean the Dem establishment won’t butcher what they perceive as an opportunity, since a lot of other conventional wisdom has been upended this year, but an opportunity is what they think it is.

          In hostile takeover terms, it’s as if a corrupt and incompetent management accidentally stumbled onto a major new revenue source. So (a) “We aren’t really incompetent, look at this!” and (b) “We’ve changed! Give us the chance to” etc etc etc. Some insurgents might buy this; it’s “pragmatic” to leave the existing “experienced” management team in place to “plan” to exploit the new opportunity. (I don’t know the success rate of hostile takeovers, or what makes them fail, however, so I am farfetching and speculating freely.)

      2. Lambert Strether

        In round 1, Sanders opened a bad cut over Clinton’s left eye, and she started flailing wildly because she couldn’t see clearly. However, she was “saved by the bell” of Scalia’s death. Now her corner men are feverishly staunching the flow of blood and changing tactics. We’ll see what round 2 brings, and whether Sanders can open that cut again.

        1. Gio Bruno

          Polling in Nevada indicates the caucus is a toss-up now. As Yves pointed out yesterday(?) the Latino vote is critical (Young Latino’s are flocking to Bernie’s events). Most of Nevada’s Latino population is young and new to state/national politics. (Bernie is wisely focusing on Las Vegas area which has 2 million of Nevada’s 2.8 million population.)

          I suspect Bernie will make a trip to Univ. Nevada Reno to meet with young voters there, too.

    3. TedWa

      You know Warren will be all over Obama’s pick and it will be interesting to see how the candidates take to the choice. Choose a corporate neolib/neocon again for high office and Warren most probably would lead an opposition, with facts and Bernie Sanders to back her up. HRC, not so much. It should be very interesting.

        1. MyLessThanPrimeBeef

          A Latino or some one similar for the Republicans to block and look bad in this coming election would be a calculating move.

          “Looking for one good martyr to help win the election.”

          1. wbgonne

            This person is Indian (not Native American) and the GOP approves of him, or at least they did previously. I’m sure they’ll oppose any Obama SCOTUS nominee now because of the election.

        2. TedWa

          Wonderful – NOT ! Another stinking corporate stooge on the corporate payroll. I swear, Obama must go really out of his way to find corporate friendly minorities like this one and his other choices.

          I certainly hope not – especially after :

          In 2011, while working for O’Melveny & Myers LLP, Srinivasan argued that corporations couldn’t be held liable for human rights abuses they are complicit in abroad—specifically, in this case, alleged acts of murder and torture.

          Could the guy be more republican and non-progressive??

  20. polecat

    I say make supreme court appointments limited to,say ,15 years, which might be enough to effect change, but still allow for quicker bench turnover if prior court decisions prove negative for the commons. Would Mr. Sanders be up for putting that out to the states for a constitutional amendment to achieve such an outcome?

  21. Synoia

    The White House has just announced that as a consequence of Scalia’s death, and the desire to reach out to the Republicans, the White House will consult with the senate majority (all 95 Conservative Senators) to nominate a new supreme court justice who can be confirmed quickly.

    1. Vince in MN

      Even though a show of debate will be useful to project the illusion of democracy, surely Corporate Party 1 and Corporate Party 2 can quickly come to an agreement on the best corporation-friendly candidate.

  22. Don Lowell

    Reminds me of an old song, {Bad,bad Leroy Brown, meanest man in the whole damn town, meaner than a junk yard dog} That’s my opinion!

    I heard the Med Examiner made his conclusion of natural death over the Phone ??

    Maybe this is an omen.

  23. DJG

    Say what you like about that super-duper-competent Eric Holder, Lambert, but my Spidey Sense is going off. I wouldn’t put it past Obama to try for some kind of bipartisan “proven” technocrat.

    So if Eric Holder isn’t available, is Joe Lieberman available? (He’s Yale!)

  24. bob

    I saw this quote from him today-


    “The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful, it is an important element of the free-market system. The opportunity to charge monopoly prices – at least for a short period – is what attracts ‘business acumen’ in the first place; it induces risk taking that produces innovation and economic growth.”

    It’s a demonstration of how neoliberals can’t even read or apply the most relevant part of their own theory- monopoly. It’s not the short term, and it has very little to do with price. It’s ALL about supply.

    1. Vatch

      Scalia: what a creep. Didn’t he realize that the ultimate form of monopoly is Soviet or Maoist communism? Here are a few things that Adam Smith said about monopoly (An Inquiry into the Nature and Causes of the Wealth of Nations, Book I, Chapter VII):

      A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.

      The price of monopoly is upon every occasion the highest which can be got. The natural price, or the price of free competition, on the contrary, is the lowest which can be taken, not upon every occasion indeed, but for any considerable time altogether. The one is upon every occasion the highest which can be squeezed out of the buyers, or which, it is supposed, they will consent to give: The other is the lowest which the sellers can commonly afford to take, and at the same time continue their business.

      Book I, Chapter XI:

      Monopoly, besides, is a great enemy to good management, which can never be universally established but in consequence of that free and universal competition which forces every body to have recourse to it for the sake of self-defence.

      1. Lord Koos

        “The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”

        Sounds exactly like Comcast’s business model…

  25. Kurt Sperry

    “Mere factual innocence is no reason not to carry out a death sentence properly reached”

    -Antonin Scalia

    1. Vatch

      I hate to defend someone like Scalia, but according to snopes dot com, he didn’t actually say this. Instead, he said:

      newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief

      I’m not a lawyer, but I suspect this means that the prisoner might be entitled to a new trial, but isn’t automatically entitled to be released from prison. I’ll provide links separately.

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