The Judge

At age 79, Supreme Court Justice Antonin Scalia has passed away of natural causes. Scalia’s influence and decision making within the Supreme Court has had a dramatic impact on our society.

Appointed by President Ronald Reagan in 1986, Scalia was the first Italian-American to join the Supreme Court. However, the country may have been better served if Stallone’s Marion ‘Cobra’ Cobretti had been appointed instead.

A Cobra

Credit: Warner Bros.

Scalia’s death would have been a monumental event any year, but none more so than in that of a general election.

The strongly conservative justice was a Constitutional originalist, meaning he applied what he perceived to be intent at the time of ratification to his decisions.

Last June, the Supreme Court ruled in a 5-4 majority on Obergefell v. Hodges that same-sex marriage is legally protected under the Fourteenth Amendment.

Dissenting from the majority, Justice Scalia wrote:

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman and no one doubted the constitutionality of doing so.”

However, the Fourteenth Amendment itself doesn’t limit marriage to one man and one woman.

Section 1 of the Fourteenth Amendment reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

By the time the Supreme Court ruled on same-sex marriage, thirty-seven states already recognized it.

Scalia implied that the intent of the Constitution favored his decision against same-sex marriage, although he conveniently re-evaluated the document’s intent concerning firearms in District of Columbia v. Heller.

If you ever wondered how the Second Amendment’s right to bear arms went from “a well regulated militia” to simply any individual, it’s due to the Court’s Heller decision.

The 2008 Heller case challenged and struck down Washington D.C.’s thirty-two year-old handgun ban.

Former Chief Judge of the United States Court of Appeals for the Seventh Circuit, Richard Posner concluded in a 2012 article that Scalia’s “interpretation of the Second Amendment probably is erroneous” in the Heller case.

Orange County News - Aug 29, 2005

Credit: Mark Avery/ZUMA Press

Scalia continues in his opinion on Hodges:

“But what really astounds is the hubris reflected in today’s judicial putsch. The five justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.”

How is this any different than the 99 years between the 14th Amendment and the Loving v. Virginia decision that legalized interracial marriage?

In 2014, the court heard Sebelius v. Hobby Lobby Stores, Inc. The stores’ Christian owners did not want to follow the Affordable Care Act’s contraception coverage mandate, alleging it covered abortion-inducing drugs (it doesn’t).

Scalia would rule with the conservative majority in favor of Hobby Lobby, giving corporations the power to object to following a federal law if it violated its religious beliefs.

Scalia had previously favored giving corporations a voice equal to the people when he joined the majority decision in the 2010 Citizens United decision, establishing campaign donations as a protected form of free speech.

After the 2012 election year which saw many attempts at limiting minority votes through legislation, Scalia joined the majority in gutting the 1965 Voting Rights Act the following year.

Within hours of the SCOTUS ruling, Texas went forward with a voter ID law that was previously halted due to Hispanic voters being “more than twice as likely as non-Hispanic registered voters” to lack the required ID to vote.

Less than two hours after the Justice’s death was confirmed on Saturday, GOP Presidential candidate Ted Cruz tweeted for the Senate to prevent President Obama from appointing Scalia’s replacement.

A CCCruz

Credit: Wabash Coffee Party

Cruz’s call would quickly be repeated through social media and from the debate stage that night by his fellow Republican presidential candidates.

There is no waiting period in the Constitution for when Obama needs to make his pick, nor is there a provision prohibiting him from doing so during an election year.

However, this didn’t prevent Ted Cruz from flinging random shit to the wall and hoping something would stick during the televised debate.

“We have 80 years of precedent of not confirming Supreme Court justices in an election year.”

CBS’ debate moderator John Dickerson quickly schooled the Texas senator, informing him that current justice Anthony Kennedy was confirmed in 1988… an election year.

Regardless of Dickerson’s realtime factcheck, Cruz would go on to repeat his lie nearly verbatim the following morning on NBC’s “Meet the Press.”

It is absolutely insane to me that the GOP feels leaving an open position on the nation’s highest court for nearly an entire year is acceptable. The longest it has ever take to appoint and approve a Supreme Court justice is 107 days, in the case of Clarence Thomas.

Although Obama has already announced intentions to select a nominee, what would happen if the GOP gets their way?

With eight members, the court could still reach a ruling decision. In the case of a 4-4 tie, the decision of the lower court would stand. However, this would not set a national precedent as a Supreme Court decision would.

In the meantime, prepare for the GOP fear mongering this election season to take a more domestic approach as long as the Supreme Court has a vacancy.

Speaking with NBC’s Chuck Todd, Cruz warned what America’s future would be if Donald Trump or either of the Democratic candidates (Hillary Clinton, Bernie Sanders) were elected to the presidency and appointed the next nominee:

  • “The Second Amendment written out of the constitution.”
  • “Unlimited abortion on demand.”

”Religious liberty torn down.


Neither Clinton nor Sanders have proposed or supported repealing the Second Amendment and I’m not sure what “abortion on demand” is. Does he think the DNC is going to make it a drive-thru option?

I do find it humorous that the man who proposed a religious test for entrance into our nation is now concerned about the other party attacking religious liberty.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” Senate Majority Leader Mitch McConnell responded in a statement on Saturday.

We do have a voice and we used it to re-elect President Obama during the 2012 election.

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