To my friends grieving over Justice Scalia’s death

Dear friends,

I’m sorry for your loss. If you’ll accept the condolences of this bleeding heart tree hugger. Justice Scalia and I didn’t always see eye to eye (though I agreed with him in Kelo v. New London and Kyllo v. United States, to name a few), in law school I found that his opinions were always well written and a good read. I think my favorite line of his might be “The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath-a detail that many would consider ‘intimate’“.

But as time went on, his opinions became increasingly vitriolic, against the losing side and against his fellow Justices. Rather than point to any example, I’ll just share that the Scalia Insult Generator is a thing that exists.


He was a good writer, but he was an asshole. He contributed to the mudslinging ugliness that is politics today.

But he was your asshole. He was arguably the most conservative justice on the bench. Justice Stevens (a liberal justice nominated by a Republican) noted that through his tenure on the Court, each of his colleagues were replaced with a more conservative justice. But now, with Justice Scalia’s death during President Obama’s term, that will be…unlikely to happen.

So in addition to being sad, you’re scared. With President Obama’s new pick, the Court is likely to become more liberal, a perceived threat to your individual way of life somehow. So you trot out arguments about the balance of powers. We need to wait for the next election to replace Justice Scalia, so the next president can pick.

But the concept of balance of powers does not mean that Democrats need to be tempered with Republicans. There is nothing in the Constitution or anywhere addressing the division of powers between the political parties. Other than voting. Which we did. In 2012. Knowing that President Obama would be president for 4 more years and not 3.

Balance of powers refers rather to the…well, balance between the states and the federal government. The states have some rights and duties, and the federal government has others. Interpreting the US Constitution is one such duty and right of the federal government, in this case, that of the Court.

As I’m sure you know, the Court has 9 (now 8) justices. The reason for 9 is to prevent ties. It can’t be as perfect as that. Sometimes a justice will need to recuse him or herself. But under the best of circumstances, there will be no tie.

But now we have 8. Moreover, we have 4 that are relatively conservative and  4 that are relatively liberal. In recently history, Court decisions have been 5-4 splits. So if Justice Scalia’s seat is vacant for as long as some of the GOP want it to be, we’re going to have a lot of ties.

What happens to a case in the case of a tie? Nothing. It’s like the case was never heard, and the decision of the lower court stands. Considering that cases often make it to the Court because of a disparity in law–some states or circuit courts interpret a provision in a certain way and others another–this means that we will have different rights in different parts of the country. This gives states more rights than they are meant to have in our federalist system and can limit our liberties.

Thus to preserve the balance of powers–the real one, not the imaginary one created when a political party loses popularity–there should be no undue delay in appointing a new Justice. We all can take time to grieve, but we all need to move on.

About emmawolf

I'm a freelance writer living in Baltimore with my husband, son, and two cats. I'm working on editing my first novel. I love reading, traveling, and the cello.
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1 Response to To my friends grieving over Justice Scalia’s death

  1. Ryan says:

    I don’t think that the idea of waiting is unreasonable if the current president has 3 months or fewer left in office. But Republicans are talking about waiting almost a whole year. That’s 25% of a president’s term! There is no reasonable principle–no principle at all, really–behind that kind of delay. What’s to stop Republicans from continuing their obstruction into the next presidential term if a Democrat wins or to stop Democrats from doing the same under a Republican president? Pressure from voters? Republican voters don’t seem to care what happens as long as they prevent another liberal (defined as anyone who isn’t conservative) from joining the Supreme Court. And if they set this precedent, I suspect that Democrats won’t be inclined to care, either. This situation makes me think that we need a new way of choosing justices.

    I almost wish that Obama would nominate some conservative judges just to expose McConnell as either a hypocrite, should he choose to confirm one, or an obstructionist with little concern for the necessary functions of the federal government, should he choose to ignore them all.

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