Feb. 17th, 2016

maxomai: dog (dog)
Liv and I were in the middle of vending at Pantheacon when news came that Justice Antonin Scalia had passed. As such, I didn't have time to comment on it until now. To put not too fine a point on it, his passing, and the timing of his passing, is a Big Fucking Deal, with minor implications for the 2016 election, but huge implications for the next few decades.

By way of background, Scalia was part of a four-Justice conservative bloc (with Chief Justice Roberts and Justices Alito and Thomas), which is opposed by a four-Justice liberal bloc (Justices Breyer, Ginsberg, Sotomayor and Kagan). Justice Kennedy represents the swing vote. Kennedy's social liberalism has helped on a few issues along the way (gay marriage for example), and Roberts was a surprising vote in favor of Obamacare. Other than that, the conservatives plus Kennedy were reliably pro-business, anti-union, pro-gun, and at best a mixed bag on the environment.

With Scalia dead, we have a three conservative, four liberal, one swing vote court. At best, the conservatives can tie. If Obama or his Democratic successor appoints a liberal to replace him, we have a three conservative, five liberal, one swing vote court. And that, for the conservative movement, is a complete disaster that threatens to roll back decades of work:


  • While Scalia lived, this court was hostile towards campaign finance reform and efforts to preserve voting rights. Many of the new laws to prevent "voter fraud" came about after the court gutted the Voting Rights Act, and today's billionaire-driven campaigns would not be possible without Citizen's United. With Scalia dead, the worst the courts can do is uphold whatever the decision the lower courts made; with a liberal court, both of these decisions could be reversed, and anti-gerrymandering laws could also see new life.

  • The relatively recent Heller decision was 5-4, with Scalia writing the opinion for the majority. Also, Federal 4th Circuit Court of Appeals recently ruled that the Second Amendment includes the right to keep an "assault rifle." Had Scalia not died, and that case had gone to the Supreme Court, SCOTUS might have ruled that ALL US Citizens have a right --- subject to background checks, etc --- to an assault rifle. With a liberal justice, not only would the Court uphold an assault rifle ban, but Heller itself is in danger.

  • The Supreme Court's conservative bloc couldn't overturn Roe v Wade outright --- Kennedy wouldn't have allowed it --- but they could nibble at the margins of abortion rights. With a tied court, they can nibble a little less. With a liberal court, abortion rights are safe for at least another generation.

  • Labor unions were bracing for the impact of a likely ruling that would have gutted "fair-share" provisions, in which union non-members that benefit from union bargaining pay union dues anyway. With Scalia dead, we now have a likely 4-4 tie, which means the court would effectively uphold the 9th Circuit Court of Appeals decision in favor of the unions. With a liberal majority, that same ruling would hold for the entire United States.



Guns and abortion are red meat for American voters, but the rest --- campaign finance reform, voting rights, and labor laws --- are the life and death of the Republican and Democratic parties. The Republicans are busy building a new multi-generational hammerlock on state legislatures, particularly in the Midwest, and Congress. Either party can win majorities with the issue du jour and a lot of money, but neither the Republicans nor the Democrats can keep a majority without gerrymandering, voter suppression. The Republicans have the advantage in state legislatures, which is how they're able to gerrymander and suppress the vote. The Democrats have the disadvantage, which is why they need to reverse gerrymandering and get out the vote. The Democrats are also at a monetary disadvantage, which makes campaign finance reform absolutely critical for them to not get shut out of power.

With Scalia on the Court, the Conservative Movement's lock on the House and state legislatures meant that they were sure to solidify power; from there, they could proceed to dismantle the New Deal, undermine environmental protections, and slowly turn the United States into a corporate republic. Without him, that project is in jeopardy. The Republicans need to do whatever it takes to keep the Supreme Court from a liberal majority, or their project is sunk. Unfortunately for the GOP, they need to win the White House and keep a Republican Senate majority to ensure that Scalia's replacement is a conservative. Right now, that looks rather unlikely; in fact, I would bet on the Democrats taking both the White House and a majority in the Senate in November. The most the GOP can do is keep Scalia's seat open until 2017, hope for the off chance that they capture the White House, and failing that, filibuster whoever the next President picks until Majority Leader Schumer uses the "nuclear option." From there, the progressive movement, for better and for worse, will be in the driver's seat.

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