The Consequences of Justice Scalia's Death | National Catholic Reporter

The Consequences of Justice Scalia's Death | National Catholic Reporter by MSW. MGB: Deciding how the Court was voting based on who said what in arguments is an exercise fraught with peril.  Its not Scalia's vote that matters as much as Kennedy. Many cases may be 5-4 and will be 5-3 now.



On the union case, the anti-union forces don't know it, but they have just put forth the clinching argument for a closed shop in all cases.  If only that were an option in this case.



Evenwel might now be 4-4, but that would be because Scalia would have been in the five to support stare decesis.  I suspect this would be a unanimous decision.



Texas v. U.S. would not be close either.  The existing law is fairly clear and the GOP side loves executive power.



Zubik is an interesting case because it tests the boundaries between religious liberty and religious powe.  It also would not have likely been 5-4, but we will have to see the opinions.



The corporate power majority seems to be unanimous now.  Race seems to be 5-4, with Kennedy with the conservatives.  Gender idendtity was 8-1, with Scalia being the 1.  Overturning Roe was 7-2, with only Scalia and Thomas in the 2 and Roberts, Kennedy and Alito voting a centrist pro-Roe but anti-abortion as a right.  Still, I don't see anyone but Thomas and possibly Alito upholding trap laws.



McConnell is all bluster - because Hillary and Bernie may just appoint Obama and with an upcoming Democratic majority in the Senate, he will be confirmed and on the bench by inauguration day.  He might even swear in the new VP.  Facing that prospect, Mitch will geek and let someone be confirmed.  Note that it is the rhetorical prospect that will force him to reasonableness.



Roe did politicize the Court - but so did race - and it was the right wing who organized around extremist views in both cases.  While Bork was zapped for his paper trail, for the most part Democratic Senates have confirmed Republican justices.  The Appeallate courts have been where the controversy reigns - and both sides are guilty of holding up nominees who, for the most part, are quite similar anway.  Only rarely does an appelate judge who would overturn Roe slip through.  Today, Scalia would not even be on the appelate bench and his writings were a bit too over the top to not be consigned to oblivion, unlike some dissents that later became majority opinions - his won't.  Of course, he was both a leader and a reflection of right wing judicial activism, as typified by the Federalist Society. We won't see his kind again - thank Heaven.  Individuals are now just a bit safer from the tyranny of state majorities - including and especially those engineered by our Catholic bishops.