Justice Antonin Scalia: An inconvenient man

President Obama skipped Justice Scalia's funeral; Scalia was a thorn in Obama's side. His passing throws the outcomes of abortion, affirmative action and voting rights cases into doubt.


COLORADO SPRINGS, Colo., Feb. 20, 2016 — The nation mourns while President Obama travels to Cuba?

It’s telling that the president declined to attend the funeral of Justice Antonin Scalia today. Scalia was a thorn in Obama’s side for some time.

Recall “applesauce,” his summation of the high court’s ruling on Obama’s so-called Affordable Care Act.

Paranoia in the age of big government: the strange death of Justice Antonin Scalia

His past rulings and future court agenda promised more of the same. Some say, if you throw holy water on the devil, he’ll recoil and shrivel up to die. Perhaps if a liberal president were to attend a conservative justice’s funeral, the same might occur.

The concepts of bipartisanship and separation of powers appear to be lost on this president. When his positions are not embraced fully and in the spirit of North Korean slavishness, he always has a fall-back position: Go for the throat.

Obama has already has participated in the reformation of the “Church of Progressivism.” What need has he of heretics, even the one lying in repose at his own funeral? After all, didn’t the president once say, “I won, and they lost,” and “They bring a knife, we bring a gun”?

These are not words spoken by a man given to compromise. They are the words of a fundamentalist driven to vanquish all enemies, foreign and domestic. In the president’s case, as we have seen, most of his enemies are on the home front.

What need has he of an aging justice bent on upholding the Constitution as it was written? Why must he brook such insolence?

Instead, President Obama, closeted inside his White House perch rather than beside Scalia’s mourners, contemplates his next move, replacing a conservative justice with one of his own “faith.” But he also must deal with the ghost of Justice Scalia.

In the short term, Scalia’s untimely passing may have consequences for several important cases that are to be decided this year. Obama will sometimes need to accept half a loaf as he finishes out his presidency; at least he won’t now be faced with an up-start conservative still on the court.

When Supreme Court justices split evenly, the decision of the lower court stands. This can happen when there is a vacancy on the court: In the event of a tie among the justices, the Supreme Court effectively upholds the lower court’s ruling and any opinions issued are considered non-binding.

Justice Scalia represented the fifth vote for conservatives on the court and in those cases that were expected to split 5-4 along ideological grounds, his death may affect certain outcomes.

Collection of union dues from non-union workers

The most likely case currently before the court to be affected by Scalia’s death is a union case, Friedrichs v. California Teachers Association, which could have restricted unions’ ability to collect fees from non-members for collective bargaining.

During oral arguments, the conservatives sharply criticized the current system, in which public employees in 23 states and the District of Columbia must pay for the cost of collective bargaining even when they disagree with union demands. Prior to Scalia’s death, many Court reporters assumed that Friedrichs would be a 5-4 decision in favor of Rebecca Friedrichs and teachers’ rights.

Do you want the choice to support a labor union, or not?

With Justice Kennedy leading the way, the court appeared likely to strike down that requirement, which would have reversed the lower court and dealt a major blow to the financial clout of public employee unions, such as the California Teachers Association.

A tied vote will uphold the system. However, in such a closely contested matter, a divided opinion will serve to undermine labor peace by leaving the compulsory collection of sues subject to ongoing doubt, controversy and litigation.

Affordable Care Act

The Supreme Court is to hear two cases involving the Affordable Care Act; one deals with abortion and will be heard on March 2. The second, scheduled for March 23, challenges current accommodations for religious organizations under ACA’s contraceptive mandate,

Abortion clinics in Texas are challenging a state law, upheld in lower courts, that imposes tough new restrictions on doctors and facilities. The case has shaped up to be the biggest one affecting reproductive rights since 1992.

Now, if supporters of abortion rights don’t win outright with the support of Kennedy or another conservative justice, a 4-4 tie upholding the Texas law will not set a national precedent for federal courts to follow.

In the matter of contraception, religious non-profits such as schools and hospitals are seeking an exemption from ACA’s mandate that employers pay for contraceptives as part of standard health insurance plans.

Is the Affordable Care Act doomed by appeals court ruling?

They stood a good chance of winning with Scalia on the bench. Now, the most likely outcome is a 4-4 tie that would leave the so-called “contraceptive mandate” in place for those non-profits.

Immigration policy

The Supreme Court is set to rule on President Obama’s immigration plan in April. The president had a decent chance of reversing an appeals court ruling and winning about six months to begin implementing his immigration plan, which would shield more than 4 million undocumented immigrants from deportation.

But that was by no means a sure thing. The president still needs the vote of at least one conservative justice to win the case. A 4-4 tie would preserve the lower court’s decision against the program without setting a national precedent.

Affirmative action

An important affirmative action case, Fisher v. University of Texas at Austin, dealing with racial preferences in university admissions, may not be affected by Justice Scalia’s absence because liberal Justice Elena Kagan is recused. Conservatives retain a four-three margin if Justice Anthony Kennedy sides with those remaining on the right.

What does Affirmative Action actually affirm?

Justice Scalia had played a leading role in oral arguments on this case, noting that some briefs submitted to the court suggested that African Americans may do better at “less advanced” or “slower-track” schools. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” he said. Without his vote, the school’s program still could be doomed; Kagan’s recusal sets up a possible 4-3 vote.

Voting rights

Following a Dec. 8 hearing, the court is considering changing the way state and municipal voting districts are drawn by allowing them to be based on the number of eligible voters, rather than total population. That would render non-citizens invisible in the count, along with children, prisoners, some ex-felons and some people with intellectual disabilities. The result: more rural, mostly white districts.

During the oral arguments, it seemed the conservative justices might have five votes to move away from using total population. But they couldn’t come up with a practical alternative, making it a long shot that the status quo—using total population—is reversed.

For that reason, Scalia’s absence may not affect that outcome.

With the erosion of Congressional power and the ascendancy of the executive, accelerated by Obama, Supreme Court decisions have taken on ever stronger meaning in the discourse of the country. Thus, the current presidential election, as well as the future actions of a lame duck president in regard to the make-up of a future court, bear heightened significance.

Would that Obama bore a reputation for putting the country’s interests ahead of his own and those of his “faith.” Sadly, the record indicates otherwise.

With one of President Obama’s nemeses, Justice Antonin Scalia, conveniently being buried today and as a cowed legislature refuses to utilize its constitutional powers stemming an out-of-control executive, there’s little now standing in this president’s way.

In the final months of his administration, Obama is remaining on message: His brand of fundamental change will continue right up to the moment he opens the doors of the executive mansion to his successor. He is doing everything in his power and many things outside of his power, to leave a Constitution in tatters via a newly dominant executive.

On the playground, errant school boys participating in mischief or worse always revert to the excuses, “All the other kids do it” or “He hit me first.”

And a strong, some say errant, president is free to leave us a mess because the others did it also.

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