Justice Scalia’s Passing

There was an immediate outpouring of sadness and tributes to his character and accomplishments at Anthony Scalia’s passing.  The New York Times collected many of these along with their analysis of the immediate future of the Supreme Court:

New York Times Article 

“A lie can travel half way around the world while the truth is putting on its shoes”

Thanks to the internet, lies travel the world at the speed of light.  Justice Scalia’s passing occurred on the same date as the Republican debate.  Ted Cruz and Marco Rubio announced during an Republican debate, that President Obama would break an  80 year precedent, if he appointed  a Supreme Court justice during an election year.

No precedent exists.    Obama can not appoint justices,  he only nominate them and  the Senate approves them.  The New York Times shows Justice Kennedy was the last justice to be nominated during an election year.  Amy Howe, Editor of Scotusblog agrees- no precedent.


Politifact also confirms this:


No president has ever considered leaving it to the next president to select a Supreme Court justice.  Senate confirmation of any justice will be next to impossible, with the politicizing of the approval process.

On top of that, honoring a precedent,  Rubio insisted it would make the selection  more democratic.  Let the people decide.  If there is a justice that would absolutely cringe at this idea, it would be Justice Scalia.  He said numerous times, that because of the intricacies of the court cases,  99% of the population does not understand or appreciate the process.  They only see outcomes.  Decisions are based on laws, the Constitution and prior decisions made by the courts.

But, confirmations in the Senate have become increasingly politicized and both Republicans and Democrats should take blame for this.  Obama could nominate the brightest justice on the planet, and  his selection would never make it to confirmation hearings.   The Senate’s Majority Leader  Mitch McConnell  is establishing a new and dangerous precedent,  making it difficult for a president to carry out his legal obligations under the Constitution.


As the big pending  cases (limitations on abortion,  affirmative action case in Texas, Obamacare conflicts with religious freedom burdens, and immigration reform by executive action) are to be decided this term,   Justice Anthony Kennedy will continue to be the swing  vote,  but it will be different.  If he sides with the liberals, it will be a 5-3 victory.  If he sides with conservatives, it will be a 4-4 decision, and the appeals court decision will hold.  The Justices can decide to hold off a decision until their next term, hoping that a new justice will be confirmed by then.

More to come.

Stay tuned,



Changing the balance in the Supreme Court

Three justices will be over 80 years old, when the next president is elected: Ginsberg, Kennedy and Scalia.  Also, Breyer will be 78 years old.

Both Ginsberg and Breyer are liberals and  Scalia is a conservative.

Kennedy has sided with both liberals and conservatives in a number of narrow decisions.  He was nominated to the SC by Reagan.  Wikipedia states that in his earlier decisions, he sided most of the time with the conservative faction.  Often, he is referred to as the most important justice because of his role as a swing voter.  Each side has to convince him to vote their way if their side is to get a majority.


If all are replaced by conservatives,  this leaves a court divided 7-2 in favor of conservatives.  Remaining liberals would be Sotomayor and  Kagan. If all are replaced by liberals, this leaves a court divided   6-3 in favor of liberals.  Remaining conservatives would be Roberts, Alito, and Thomas.

None of the elderly justices appear to have any health problems.   In fact, they are all incredibly alert, active and brilliant.  I was very surprised to learn the age of both Justice Scalia and Breyer.

Now, if the court majority becomes conservative, could they overturn a number of decisions?  Could the same happen if liberals are the majority? Maybe, but it will be done  sparingly and really dependent on the cases before the court.    This is because the court can’t do a re-vote on a particular decision, but must have a case in front of them, which relies on a prior ruling.   Then, in deciding the new case, the SC can overturn prior decisions.

Once a case has been decided, a legal precedent has been set.  The case becomes part of case law, and all courts in the country must respect the decision.   The principle of setting precedents is called “stare decisis”  as explained below:


So, how many decisions have been overturned?  Wikipedia provides a list, noting there are likely other cases it missed:

Overturned SC  Cases

The “Obergefell v. Hodges”  in 2015, is of course, the gay marriage decision, which overturned Baker v. Nelson (1972).  The court had previously ruled that state  laws prohibiting gay marriages was legal.  Thus, the ruling was overturned 43 years later.  A second recently overturned case was again a gay rights case, “Lawrence v. Texas” where the majority struck down state anti-sodomy laws.  It was decided by liberal faction, with dissents from four conservative justices.

Lawrence v. Texas

These are just two examples of liberal justices overturning conservative decisions.  If the conservatives become the solid majority, then will they overturn liberal decisions?   Certainly,  if the right cases come before the court, there could be a number of overturned decisions.

Stay tuned,