Supreme Court

Supreme Court Justice Antonin Scalia Is Dead



From the San Francisco Chronicle:

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

More here.

Texas Gov. Greg Abbott has released a statement confirming the death:

Abbott said Scalia's "loyalty to the Constitution" set an example for Americans.

"His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans," Abbott's statement continued. "We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law. Cecilia and I extend our deepest condolences to his family, and we will keep them in our thoughts and prayers."

Reason has written tons about Scalia over the years. Read all that here.

Damon Root, among others, noted that during the course of his tenure on the Supreme Court, Scalia became increasingly results-oriented and on the conservative side of a split between libertarians and conservatives. Indeed, Scalia routinely accused judges of engaging in "activism" if and when they ruled in ways that narrowed a legislative body's ability to curtail individual rights. As Root wrote in 2013 while commenting on Scalia's dissent in the Defense of Marriage Act (DOMA) case:

If the overriding theme of Kennedy's DOMA opinion is the protection of liberty, the theme of Scalia's dissent is respect for majority rule. "The Constitution does not forbid the government to enforce traditional moral and sexual norms," he wrote, citing his dissent in Lawrence v. Texas (2003), the case where he voted to allow states to criminalize homosexual conduct. As for placing restrictions on the recognition of gay marriage, "We might have let the People decide."

It's a familiar conservative legal argument, drawn from the same philosophy of judicial deference to the will of the majority that has motivated many other thinkers on the right, including Robert Bork, who famously ranked majority rule higher than individual rights in his conception of the American system. "In wide areas of life," Bork wrote in his bestselling book The Tempting of America, "majorities are entitled to rule, if they wish, simply because they are majorities."

Bork's majoritarian approach prompted a response back in 1986 by the libertarian political scientist Stephen Macedo that I have long considered to be a definitive nutshell summary of the difference between conservative and libertarian legal thinking. As Macedo put it, "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."

At various points in his long and storied tenure on the Court, Scalia was an advocate for limiting the federal government's power with regards to individuals and the states, but that impulse clearly had its limits. In the 2005 medical-marijuana case, Gonzales v. Raich, Scalia argued that the federal government had the right to regulate home-grown medical marijuana that never left the state in which it was grown. This was seen by many as at odds with his earlier rulings in Lopez (a ruling that invalidated Gun-Free School Zones) and Morrison (that struck down parts of 1994's Violence Against Women Act).

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could … undercut" its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." 

Clarence Thomas, long seen (wrongly) as an echo of Scalia, dissented sharply from Scalia's reasoning and the argument put forth separately by five other justices. "If Congress can regulate [medical marijuana that never leaves California] under the commerce clause," he wrote, "then it can regulate virtually anything—and the federal government is no longer one of limited and enumerated powers."

From a libertarian perspective, then, Scalia's legacy is mixed, even if his rhetorical powers were never in question.

NEXT: Liberal Media Darling John Kasich Is an Interventionist Nightmare

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  1. I blame Citizens United.

  2. Wonderful.

    Can’t wait to see which Marxist rubber stamper the Bringer of Light will appoint for life.

    1. Obama will now have another SCOTUS appointment. What a terrifying prospect.

      1. Republicans can block it for nine months. There’s plenty of justification at this point, being in the middle of a hyper-partisan campaign season.

        1. Relying on Congressional Republicans?

          We’re fucked.

          1. This is a very pertinent point.

            1. According to HuffPo, McConnell already announced that there will be no appointments for the remainder of Obama’s term.

        2. Too bad the Obama Administration is around for 11 more months.

          1. Minus the golf, vacations and celebrity galas: 2 months. Not sure how he’ll work it in.

            1. I’m thinking if we just hide the newspaper from him for the next 11 months we can ride it out.

              1. heh

      2. I wish him luck getting his nominee confirmed. He’ll need it.

        1. Exactly. Ain’t gonna happen…Guar-a-fucking-ted.

          1. Who the fuck is ted? Meant teed.

              1. Enjoy the Guar-a-fucking that Jimbo promised you. Jumbo, can you tell the rest of us what the hell a Guar-a is, and why it has the hots for Ted?

                1. Jumbo?! I’m not THAT fat!

            1. I get it, a subtle bit of Cruz electioneering.

      3. Hillary said she would appoint Obama to the Court – will Obama repay the favor?

        1. McConnell started slipping into his Senate Confirmation kneepads just as soon as he was notified.

          1. Oddly enough, McConnell announced almost immediately that a SCOTUS appointment was totally out of the question until after the election. So, you know, maybe there’s hope.

            1. Openers……!

              Somebody will make a call and Mitch “the Mighty Willow” McConnell will bend to accommodate O’s wishes.

              Just watch!

      4. Souter turned out so well.

      5. What difference, at this point, does it make?

    2. (1) Himself. Or he resigns and Biden nominates him, allowing Biden to announce he’s decided to run since he’s an incumbent. Sorry, Hitlary.
      (2) Elizabeth Warren.
      (3) Michelle.
      (4) Al Sharpton.

  3. The Twitter link to this post has Reason saying that Scalia became “increasingly hostile to individual rights” during his tenure.

    So who was better, guys?

    Other than Thomas, who isn’t perfect either.

    Huh? How about it?

    I’ll wait.

    1. Thomas was better. Not perfect, not even very good, but the bar is low.

      1. Also, welcome back. Havent seen you around lately.

      2. Fuck, Thomas is rational and able to make coherent arguments. He just doesn’t always get to the right conclusion, but only because his original premises are bad. Scalia often seemed to be arguing backwards from the conclusion he had chosen based on random associations conditioned in various childhood traumas. He could be rational. It’s just that it broke down whenever thought came in contact with conditioning. Even when I’ve thought Thomas was totally wrong, I was able to respect his reasoning. On the other hand, the rest of them are like a bunch of psychotic two-year-old narcissists, so the comparison between Thomas or Scalia and any of them is like comparing 1 and 0.

        1. This. Especially “Even when I’ve thought Thomas was totally wrong, I was able to respect his reasoning.”

    2. ‘So who was better?’ is pretty much an illustration of the high bar set by liberty-minded people. Most Justices fail most of the time and occasionally some of the most consistently wrong get it right from time to time. Dunno, it’s like asking me for whom I’m going to vote. Often I don’t.
      Surely he came down on the *right* side many times (and maybe from an *erroneous* angle, hence the critique of results). You really can only judge Judge by how he voted on a particular case.

      1. “You really can only judge Judge by how he voted on a particular case.”

        Not really true. In fact, perhaps irrelevant. The arguments and his susceptibility to reasoned thought are indexes of a judge’s doomstoolworthiness. If he votes the right way, but without it being the product of considered reasoning and evaluation of the arguments, he’s not only been a poor judge in universal terms but he can not be expected to rule true in the future, except perhaps at a rate equal to random.

        1. Justices are sunk costs.

    3. Sotomayor, believe it or not, isn’t the worst thing ever when it comes to individual rights vs the state in criminal cases. She’s a whole lot better than most of the statist windbags appointed to that bench, including Scalia. Kyllo aside. (I still wonder if one of his clerks wrote that for him—it’s just so not like Scalia to admit the State can’t do something, when they claim a law and order need to do it.)

      Other than that, we’re so fucked. How many 5-4 decisions on the side of more freedom have come down with Scalia as one of the 5? I can think of Heller and the recent EPA case off the top of my head. Think a Kagan-clone would have ruled similarly?

      Can the Senate reasonably stonewall the Court for 9 more months?

      1. it’s just so not like Scalia to admit the State can’t do something, when they claim a law and order need to do it

        Not always.
        Justice Antonin Scalia, by contrast, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, rejected the Navarette majority’s pro-government stance. “The Court’s opinion serves up a freedom-destroying cocktail,” Scalia declared, one that privileges an anonymous and uncorroborated tipster over a core constitutional right. “All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.” That troubling scenario, Scalia declared, “is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.” Translation: Take your “workable relationship” and shove it.

        1. This is my main concern, while i don’t agree with every conclusion he came to (you never will with anyone), *overall* he was a purveyor of liberty and protected the constitution.

          While he was more conservative leaning than i’d like, the issue we have now is that they’re going to try to ram in a hyper progressive justice and then the scotus will start legislating from the bench big time.

          I’ve never been more scared for the state of this country than i am now, particularly the second amendment, but with all the garbage going on at college campuses and many of these states trying to implement and enforce “hate speech” type of laws, the first amendment as well.

    4. So are you disagreeing with the tweet’s description of Scalia?

    5. Kennedy?

    6. I like to fantasize that Judge Napolitano is on the Supreme Court. That’s my fetish.

    7. Even if no one was better, that would not make him good. The “best” evil scumbag is still an evil scumbag.

  4. We’re fucked

  5. I think Scalia’s death, whatever his flaws, is going to move the court in an even unfriendlier direction on individual rights, just different ones. Suddenly Citizens United, Heller, etc aren’t looking so safe provided that Obama gets his appointee approved.

    1. Even viewing Sclalia in a very negative light, his death is bad for civil liberties, the balance of the court being overthrown. 4 conservatives, 4 progressives, and Kennedy waffling in the middle may be the best hope for a ‘libertarian’ court we’ll see in our lifetime. Now, if we get another leftist in the court, there will be no one to check the excesses of the leftist wing. 5-4 in favor of truncating freedom of speech, legalize public sector (“reverse”) racism, allowing unions to force employees to join, etc. is as good as 9-0. It’ll just be the icing on the cake if President Clinton gets to replace Kennedy too.

  6. Ugh…another Obama appointee.

    Or will the gop senate delay until next Jan?

    1. Any GOP Senator that breaks ranks and caves needs to be run out of office.

  7. This is one of those things that is going to make me stay off Facebook for a while. Oh, the gloating that will be occurring from my prog friends.

    Scalia was a terrible justice for libertarians, especially on personal freedom and criminal justice issues. Still, whoever Obama puts up will almost certainly be worse. This is going to be a fun fight in the Senate.

    1. He was good on some criminal justices issues. Procedural.

      1. Well, I would think among people here his work and defense of the 2A in particular.

    2. I set up Facebook to just filter those people out. Or unfriend them.

      It’s not like democrat socialist talking points don’t get out. I don’t need to hear my genius friend’s political thoughts.

      The other day, I had a democrat spouse of a friend of mine going on about how the tax rebate for her new Prius was too low: it didn’t make up for the extra expense, especially with gas so cheap. She expected the government to subsidize her Prius to be the best financial option.

      You get that? She’s not supposed to go to any trouble and expense to save the planet. Someone else is supposed to go to the expense and pay her to save the planet.

      I don’t need to hear these people explaining how the world should work.

      1. Shit like that is the stuff of comedy. It makes me laugh just like post facto *tragedy* jokes. It reminds me of the folly of man. Thanks for sharing that story; I’ll share it with hundreds now as an illustration of the economic illiteracy of the Left.

      2. Does she have an all electric Prius or one with the internal combustion engine that produces greenhouse gases as a non-point spurce (compared with the point source emissions from the power plant that charges the plug-in versions)?

    3. It will quickly turn in to whining that the GOP won’t let Obama appoint anyone.

    4. Your first problem is that you use Facebook at all. Allowing yourself to be used by a massive surveillance engine isn’t exactly smart.

    5. I’m not sure terrible is the right word, i think that’s a bit of an exaggeration. However like you said, anyone Obama puts up is going to be astronomically worse.

  8. Something something “new professionalism”

    Will Obama nominate Michelle? Himself?

  9. Natural causes? Suuuuure

    1. 79 yr olds don’t just drop for no reason.

      1. Jet fuel can’t melt 79 year olds!

  10. Actually, Himself could nominate another Sotomayor, and completely by accident not totally screw the pooch.

    1. I think it’s high time we had some diversity that reflects America, we need a second black guy on the Court. Thomas Sowell would be a good pick. Is Obama so racist he wouldn’t pick a black man?

      1. Obama could nominate himself.

        Seriously, wait for the Salon article that suggests it.

        1. If the Onion doesn’t write it, it’s lost its satirical cred.

      2. Janice. Rogers. Brown.

  11. Hey libertarians — ask yourself if you’d rather have Ted Cruz as president right now.

    Seriously, think about it. Who would you prefer to be picking the next justice… Obama or Cruz?

    1. Trump, his will be Nancy Grace.

    2. Gun to my head?

      I take the bullet, motherfucker. Cruz would probably nominate another Burger.

    3. I am not convinced Cruz would pick a more pro liberty justice. Cruz would probably pick some religious nut job that would rule against personal liberties. Personal liberties have a more personal impact than economic liberties.

      1. You obviously don’t have a real job, children, and/or any significant assets. There is no Liberty without economic liberty.

  12. Obama isn’t replacing shit. The Court can function with 8 members since 1. they vote with unanimity or close to it a majority of the time and 2. in the event of the time standard procedure is to defer to the lower court’s judgment.

    At best Obama gets a compromise person in but it won’t be a left-wing nutjob.

    1. If the Republicans grow a spine, the best Obama will get is a recess appointment to get them through the year.

      1. Seriously, what are the odds of the GOP not rolling over this time. You know the media pressure to rubber stamp whoever Obama sends up is going to be incandescent.

        1. Honestly, I give it 50/50.

          The media pressure will be immense, but Trump will make a whole lot of noise also, and the GOP base will basically demand nothing less than a stonewall.

          With the GOP leadership generally being in crisis mode right now, my guess is that there’s at decent chance that they’ll hold up the process, even if it’s a desperate pander to the angry Trump supporters and not out of any real principle.

          1. The media pressure will be immense

            Two words Obama and Legacy. I expect the full court press.

        2. Zero, rolling over is what they do.

    2. This requires the Republicans having balls though…

      1. Just count on the stupid party being stupid, they’ve always come through up to now.

    3. It doesn’t have to be a leftwing nut job, just someone reliably left of center for those cases (often important ones) where the court is split. Another Sotomayer would work just fine.

      1. Another Sotomayer would work just fine.

        Yeah! Screw the Bill of Rights, it’s 2016 we don’t need any 100 year old straight white male slave contract .

  13. I thought the Nazgul couldn’t die.

    More seriously, I do not look forward to the next few months of wrangling over what will certainly be a shitty nomination. The Democrats will want the most liberal appointment possible just for the fireworks in the Senate. Nothing like some good old fashioned wedge issues during the campaign season.

    1. I have a feeling that the left wing (most of it) media will sense that this is their great chance to get their SCOTUS pony and ratchet the rhetoric up to 11. I expect to see stories about how GOP obstructionism being worse than Hitler, Stalin, and Nixon put together. I don’t think that the GOP has the balls to do it, honestly.

      1. Preet Bharara. Paging Preet Bharara. Please report to the White House, immediately.

        1. Oh, HELL no!

        2. Heeell to the NO!!

        3. That would end the woodchipper show loophole and there would be mandatory woodchipper registration.

      2. ^This exactly.

        And the sad part is a lot of republican senators WILL cave because they don’t want to be perceived as obstructionists. This is a serious crapshoot that i’m not entirely sure most people (even educated people) fully grasp or realize the potential ramifications of.

        This couldn’t have come at a worse time, honestly.

  14. One more time with feeling: jump on where Scalia was bad all you want. How likely is it that someone better will replace him?

    How likely is it that Obama will appoint someone better?

    It’s a bad day for rights and liberties.

    1. A very bad day and going forward.

  15. I would think this is a big hole and not exactly good timing either. I remember reading about him being an ‘originalist’ and finding his intellectualism interesting. Wasn’t Spooner considered an ‘originalist’?

    1. He was an originals when it suited him. Which is to say, more often than the rest.

    2. Err, Spooner thought the Constitution forbade slavery, so I doubt it.

  16. On the bright side the confirmation hearings should be quite entertaining when President Trump nominates Ted Cruz to the Supreme Court next March.

    1. I’ve come to the conclusion you guys just get a guy and dress him up like Peter Pan and install him as President.

      Imagine that scene. Him against Putin or terrorists.

  17. If Ginsberg had croaked last night, the balance of power would have been unchanged.

    But this… this is not good.

    I’m suddenly quite thirsty.

    1. Were you just eating pretzels?

    2. It depends on what cases are open this year. In the event of a tie, the lower court’s decision holds.

  18. Watch all the republicans come disguised as independents shilling for right wingers and come up with arbitrary time periods for which it is reasonable to stall a nominee. What if he died a few months ago, would 15 months be OK to ride out an Obama presidency?

    That’s why I hate the system. The supreme court composition has become like a lottery system. Based on the luck of who is in power. The written law should not be that manipulated where it matters over the course of a couple of decades who is in political power for a certain four year period .

    Maybe time for term limits (maybe 20 years).

    If Obama has any sense, he will offer two candidates to show up guys like Cruz. He will offer a lefty candidate and say “hey you know what, in order to compromise I will offer a more moderate one and I will leave it up to you, the senate< to choose one of them” . Instead of one side rejoicing the democrats get another shot at putting a radical lefty on the court, Obama can make a slight compromise to make a guy like Cruz, threatening to reject every single nominee regardless of merits, irrelevant. “I am offering you a choice of candidates, from left wing to moderate You can take the chance of riding out my presidency only to see somoene like Hillary possiblygetting eelcted and that will result in more leftist candidate getting nominated after all of that delay. So take my compromise and pass in the less lefty candidate even if he or she is more lliberal than you would prefer”.

    1. Obama could nominate Akex Kozinski. It would piss off a bunch of republicans but could probably get thru.

      1. That’ll be the day!

        1. Less unlikely than the post I responded to.

      2. Jesus, I’d love to see Kozinski on the Supreme Court. It’ll never happen, even before the porn server scandal, but the hilarity’d be off the charts.

        1. Porn scandal. Well, Hell. Just nominate Ron Jeremy.

      3. There is no fucking way Obama would appoint Kozinski.

      4. Kozinski would be great, so it will never happen.

    2. I argue the term limits with a friend who is much more of a “true” libertarian than i am, and he is vehemently against the idea of term limits on senators and such. I haven’t directly questioned him on term limits for supreme court justices but i have a feeling he would be against those as well.

      I don’t quite understand the argument against term limits. If we lived in a country where people actually educated themselves on issues and voted based on more than knee jerk emotional reactions, it would make sense to not have term limits, however, most people in this country are what the russians would call “useful fools”, and can be very easily manipulated based on emotion rather than reason or rational thought.

  19. Please don’t hate on me, but Cruz at least postures himself as a strict constitutionalist. If this is true, then why would there be even any question of who would be better to choose, Cruz or Obama? Or is it somehow obvious that Cruz is not a constitutionalist, and there is evidence to prove it. If the GOP does indeed grow balls and refuses to confirm an Obama appointment, what kind of nominee would a GOP president nominate, if it were 1: Trump, 2: Cruz or 3: Rubio.

    1. Trump is a wildcard. I have no idea what his thinking would be on court appointments, other than “the best people, just the best, smartest people in the country, because the Constitution is so important, like, really important”. I mean, he may do fine. But who knows. Depends on who’s advising him I think.

      As for Rubio and Cruz, I think they’re of similar mind when it comes to appointments and would likely yield a good nominee. There’s always a chance they’d end up with someone like Roberts — who seemed like a pretty solid guy beforehand. But I think compared to potential Obama/Clinton/Sanders appointments, pretty much anyone they pick will be IMMENSELY preferable.

      1. I don’t get the Roberts hate. He blocked Medicaid expansion.

        1. Affordable Care Act? Umm. Its a tax. That started in the Senate. Yeah. That’s the ticket.

      2. I have this theory that Trump is the right’s Obama. He’s the guy who is gonna say anything he needs to in order to get elected, and has no intention of following through on anything he is saying now. He certainly has at least as big of an ego as Obama.

        My biggest issue with Trump is that he has these visions of unbridled executive branch power, less so than King Obama, but certainly not someone who actually understands our government like Rand did.

  20. I liked him. My respects. His last book, Reading Law, is worth a look.

    1. Like I poorly conveyed above, he struck me – from what I’ve read and seen – as someone with intellectually depth.

      Without getting into the partisan thing, I should think this is a big loss.

      1. intellectual.

      2. I read that, just before, not poorly conveyed, The book outlines his “originalism”; if I’m not mistaken, it’s better understood as “textualism”. I haven’t directly compared it to Bork’s Tempting of America.

        The first marked passage I noticed upon opening it: “The purposivist, who derives the meaning of text from purpose and not purpose from the meaning of text, is free to climb up this ladder of purposes and to “fill in” or change the text according to the level of generality he has chosen.” I’m not saying it’s a perfect statement, put this is about the central problem of law.
        Accompanying footnote: See Radin (…) (explaining that “nearly every end is a means to another end” and that, if one abstracts from a statute’s “immediate” purposes to its “ultimate” purposes, it becomes necessary to acknowledge tjat “the avowed and ultimate purposes of all statutes, because of all law, are justice and security”).

        Read: PGA v. Martin, Scalia’s dissent:

        1. *I’m not saying it’s a perfect statement, [b]ut this is about the central problem of law. [I shall add that level of abstraction is also implicated in determining equality and sameness. Behold the link between purpose and choosing a tertium comparationis. // I’m too sleepy for further corrections, let alone to capture mistakes. Sorry.]

        2. Ah man. That purpose passage is outstanding and always wrote that way in university. He’s right in my view.

    2. That book is sitting on one of my bookshelves somewhere. I never got around to it, but I may have to give it a read.

      1. Yeah, best time for such things.

  21. Is there any chance that maybe he’s just really sound asleep?

    I say somebody should jump in and do the Weekend at Bernie’s routine. At least until we see if someone from the Second Amendment party wins.

    And Scalia’s corpse would make a better Supreme Court justice than whatever progressive fur ball Obama cough’s up. The Constitution may say that a justice’s term is for life, but is that really a maximum term? Why couldn’t that be interpreted as a minimum?

    As far as I’m concerned, until the Senate confirms somebody else, Scalia’s corpse is still a Supreme Court justice.

  22. I’ve been less than happy with the court – hello, Roberts – but this is going to be one of the final nails in the coffin of the Republic. SCOTUS will rubber stamp anything – “progressive” – now.

    1. SCOTUS will rubber stamp anything – “progressive” – now.

      On the up side we will probably be able to pick out what color our chains will be.

      1. Paging GILMORE…

    2. Bye bye Amendments I and II….

      1. And 4 and 5.

        1. 4 and 5 are already long gone. Nobody on SCOTUS except for Sotomayor remembers that they exist.

      2. Bye bye Amendments I and II….

        Isn’t the 11th bullshit anyways? It’s the one that grants states immunity from being sued unless thru she to be sued.

        1. Unless they agree to be sued. Sigh. I hate this phone

          1. And I hate reading people’s thumb salad. Oh well, I guess real keyboards are a relic now.

            1. QWERTY 4 life.

        2. He’s using Roman numerals….

          1. Yes, that was my attempt at humor…

        3. Isn’t the 11th the one that got Anna Nicole Smith to the Supreme Court?

  23. I’m sure the Powers That Be will put their heads together and conjure up a candidate utterly disdainful of freedom.

  24. Which aggrieved party will lobby the hardest to get their representative on the supreme court?

    My guess is that this is finally the vegan, transgendered Eskimo’s time to shine.

    1. I wouldn’t want to rub noses with such a …Yupik or Inuit, not to change the subject.

    2. Great, so we’d never hear the end of their whining about having to live on snow and not having any gender stereotypes to defy because Eskimos all dress alike

      1. It is going to be a long, cold road to nowhere.

        1. Who built those roads bitch?!!!

      2. Inuit. The whining should be poetic (… poepic). With the capacity to create several words for snow (not alike), they should be able to capture and complain about all 2000+ genders and corresponding gendered injustices.

    3. Vegan Eskimos went extinct millennia ago.

  25. I am afraid that 20% of the Bill of Rights just died too.

      1. 1 and 2 – “Common Sense Gun Safety Laws” (ie, bye bye Heller) and “Hate Speech is not Free Speech, Campaign Finance Reform, etc” (bye bye Citizens United)

    1. 20% of what’s left? That’s what you meant, right?

    2. I’m sure Heller will get the same respect as Roe v Wade.

      1. Roe vs Wade: that was the case about whether you could harvest caviar from the shore?

        1. My buoy my choice

          1. Someone put their wordplay pants on this week.

            1. Someone noticed!

              1. Wordplay is wonderful, you punster-funster.

                1. Referring to the girl, not the dumpster-funster-attemptster.

                  1. Referring to the girl, not the dumpster-funster-attemptster.

                    I am not good enough for you, Funky Peeeee-youuuuuuster?

                    1. I respect you differently, CJ.

      2. Seriously, the only progressive interpretations of the second amendment are such that the second amendment does actually nothing.

        I look forward to a Supreme Court justice to argue for overturning Heller because “MILITIAZ!”, as if the second amendment is where governments get the right to have guns.

        We have enough stupid justices already. Sigh.

        1. I’m thinking gun sales are about to pick up!

  26. How about a compromise? The right can compromise on civil liberties and the left can compromise on fiscal issues.

    Nominate a libertarian.

  27. The tolerant, loving left surprises no one with their reaction:…..ts-unknown

    1. I am not clicking on that. I just got back from vacation and I’d like to save the nutpunches until I’m back at work.

    2. And if Ginsburg died, no one here would be cracking jokes.

      Hell, we’re already cracking jokes about Scalia. At least I was.

      1. On a Scalia of one to ten, how would you rate him? [like that?]

      2. Yeah, I clicked, scanned the top few comments, and didn’t see anything outrageous.
        Someone over there said exactly what I was thinking: Obama won’t get to pick Scalia’s replacement.

    3. “News Flash: Scalia dies on Texas hunting trip. Dick Cheney’s current whereabouts unknown”

    4. Nice concentration of losers there.

      The tolerant and loving left:

  28. This may ruffle a few feathers around here, but this is who I would nominate to take Scalia’s place.

    1. Your 5th grade home-room teacher?!

    2. William Hurt in drag?

    3. The same judge who gave the Silk Road guy life w/o parole? Just because she stood firm against the military and .gov when they tried to push through several obnoxious parts of the 2012 NDAA, doesn’t mean she’d be great on the Court.

      Still, Obama’d probably nominate worse.

    4. My three choices, none of whom would accept and none of whom would ever be confirmed, would be:

      Eugene Volokh
      Ken White
      Radley Balko.

      1. Balko? Love the guy, but he has no legal background. The other two I could at least see as having the usual qualifications.

  29. I’m not sure how this plays out. If the GOP does refuse to confirm any Obama appointment, and the GOP wins the presidential election, then I doubt the Dems are gonna be easily convinced to confirm their preferred nominee (the GOP does have majority control of the senate, but that could change and in any case a nominee can be filibustered). Lots of political theater in store.

    1. I highly doubt that. New president, honeymoon period, mandate, etc.

      1. If the GOP refuses to confirm Obama’s nominee, the Dems have zero incentive to not return the favor, unless the new president nominates someone palatable to them.

        1. Yeah, that’s not how it works. There’s plenty of justification to postpone a SCOTUS appointment. Major issues like this are often tabled until after elections, especially in a highly polarized political climate.

          Frankly it’s a major positive for both parties to keep this in limbo until after the election anyway. Both sides would love to motivate their base with a crucial supreme court nomination hanging in the balance.

          1. “Yeah, that’s not how it works. There’s plenty of justification to postpone a SCOTUS appointment. Major issues like this are oft”

            You’re high off your ass if you think the Dems are gonna go along with postponing a nomination until after the election. There is zero chance that happens. Harry Reid has already come out and said the Senate should work towards appointing a nominee before the election.

            1. Harry Reid can suck on a twelve-gauge.

              McConnell already said no way, and unless the GOP wants to basically turn their party’s blind rage up even further they’ll stick to that statement, otherwise they may as well cancel all the primaries and just hand Trump the nomination right now, and resign themselves to losing the senate by fifteen seats in November.

              This is a golden opportunity for the Republicans to put up a fight and motivate their demoralized base to actually get out and vote, particularly for contested senate seats.

              1. My post had nothing to do with the Republicans. I’m saying that if the GOP does stick to their guns, the Dems are going to return the favor if the GOP wins the presidential election. That’s all.

                1. So they should just agree to approve whomever Obama puts up because otherwise the Democrats won’t play nice. That’s brilliant!

                2. The GOP has more arguments for stalling before the election than Democrats would have after the election. Of course, elections wouldn’t be for another 2 years.

              2. There’s a problem with that:

                This is a golden opportunity for the Democrats to put up a fight and motivate their demoralized base to actually get out and vote, particularly for contested senate seats.

                The Democrat base is even more demoralized than the GOP’s. If the GOP has a lick of sense, they would offer to confirm any nominee that’s not totally left wing. Unfortunately they don’t.

                1. Fact is that this is a good opportunity for both parties to motivate their base. That’s why it’s not going to happen.

                  If the GOP agreed to appoint ANYONE at this point, they’d completely destroy any chance of holding the senate, and they’d very likely lose the presidency anyway. The GOP’s only move is to obstruct. Period.

                  It’s not ideal, but you take your opportunities where they come.

    2. If the GOP wins the presidency, then they won’t lose the senate. If the Democrats win the presidency, there is still a very good chance that the GOP retains control of both houses.

  30. Republicans are now falling all over themselves trying to find a justification for blocking any Obama nominee. They love the Constitution (and the Bible) except when it’s inconvenient.

    1. Good for them. Gridlock is all that’s standing between the American people and total partisan rule by fiat. And the system was designed to behave that way.

      1. I’d argue gridlock actually strengthens partisan rule by fiat. Shit will still get done but all the decisions will be made by the executive and judiciary. The judiciary’s record on protecting us from an overreaching executive is, at best, mixed (the executive gets to nominate judges, after all).

    2. From your mouth to God’s ears.

    3. The constitution doesnt require them to approve anyone. Its the Presidents responsibility to appoint someone the senate will approve.

      1. Exactly. Congress isn’t supposed to rubber stamp every single nomination.

    4. eatapc|2.13.16 @ 6:53PM|#
      “Republicans are now falling all over themselves trying to find a justification for blocking any Obama nominee.”

      Lefty troll finds constitution obnoxious!
      No ‘justification’ required.
      Fuck off, slaver.

    5. If the evil obstructionist Rethuglicans truly loved the Constitution they would stand aside and allow Obama to cleanse it of those silly antiquated parts that are no longer relevant, such as the First and Second Amendments.

    6. What part of the Constitution do you beleive is inconvineient for Republicans right now? What part requires them to appoint an Obama nominee?

      1. Nothing requires them to, but it’s against the spirit of the constitution for them to refuse to confirm for almost a year just because they want their guy to make the appointments.

        Blocking appointees is also a really bad move politically, since making this a campaign issue will give the Dems massive turnout in what was looking like a tough year for them.

        1. I don’t necessarily agree with you that it’s a bad move politically. Most of the elephant base is already fed up with the party leadership (hence Trump) and I think rolling over for Obama again would be something of a last straw for a lot of them. However riled up the Dems might end up getting, it wouldn’t be close to how much they would torpedo their own voter turnout.

          The “spirit of the Constitution” thing seems like some BS too, choosing not to roll over for the president doesn’t make them hypocrites.

        2. Look up the Thurmond Rule.

        3. I am Unclear on why advice and consent involves confirming whomever he appoints.

        4. Budd|2.13.16 @ 8:36PM|#
          “Nothing requires them to, but it’s against the spirit of the constitution for them to refuse to confirm for almost a year just because they want their guy to make the appointments.”

          I’m sure you have a cite for (ha, ha,) that (giggle, snort, chuckle), right?
          Hey, Budd! Go tell Obo about the ‘spirit of the constitution’, and ask about the Friday night changes to O-care. We’ll love to hear about it!

          1. The Slavers would worship an Executive Order appointment if that was attempted. Spirit of the Constitution…

            And speaking of the ACA, I thought revenue bills were to be started in the House.

        5. “Nothing requires them to, but it’s against the spirit of the constitution for them to refuse to confirm for almost a year just because they want their guy to make the appointments.”

          Yeah, because Obama has followed the letter and spirit of the constitution so closely. As far as I’m concerned, as long Turd Stalin in office, anything the GOP does to stop him is just fine.

    7. Obamas appointees are their own justification for voting no.

      Election politics just gives the GOP political reason to actually do it.

    8. Where in the Constitution does it require the Senate to confirm the President’s nomination….ever, if they choose not to?

  31. Please, please, maintain the chain of custody of the body and do a complete independent autopsy.

    1. Fuck. They blew it. Now we’ll be hearing about this on Coast to Coast AM till the sun burns out.

  32. On Scalia’s and Ginsburg’s friendship:

    1. ‘Seated next to Ginsburg on the stage, Scalia teased her about the minor uproar that occurred after they were photographed together on an elephant during a trip to India in 1994. “Her feminist friends” were upset, Scalia said, that “she rode behind me.”

      Ginsburg didn’t let him have the last word, noting that the elephant driver had said their placement was “a matter of distribution of weight.” The audience, including Scalia, roared with laughter.

      She describes her fondness for “Nino” by recalling the time she first heard him speak at a law conference, before they became judges. “I disagreed with most of what he said, but I loved the way he said it,” Ginsburg recounted.’

      1. He brought personality to the court much like Pentangeli did in Congress.

      2. Mona Charon has a good story about going to the Washington Opera and seeing Scalia and Ginsburg on stage as extras, totally unannounced.

  33. Well now, we have a real campaign issue now don’t we?

    1. This was always a real campaign issue, but now people will actually pay attention to it.

      Either way, the next president was going to be choosing at least two or three SCOTUS appointees. Except now it’s not an abstract anymore.

    2. It’s only a campaign issue if the Senate doesn’t confirm someone.

      Making this a campaign issue is really, really bad for the GOP, since it gives the Dems something to energize their base about. That the GOP is apparently going to do this is yet more proof of their utter stupidity.

      1. Concern trolling

        1. “Budd” is tulpa’s new disguise.

  34. Great! An opportunity for me to indulge an elaborate fantasy in which Obama nominates Alex Kozinsky before waking up to whatever civil libertarian horror show actually gets the job.

    1. Eric T|2.13.16 @ 7:53PM|#
      “Great! An opportunity for me to indulge an elaborate fantasy in which Obama nominates Alex Kozinsky before waking up to whatever civil libertarian horror show actually gets the job.”

      Let’s see, Obo goes to HI for vacation, gets contact high from some Maui Wowie, The single HI libertarian sneaks by the SS, slips a paper with Kozinsky’s name on it as Obo is signing a check and gets nomination?
      Well, I defer to Rube Goldberg here…

      1. Nine year old libertarian wunderkind programs Obama’s Blackberry and teleprompter with Kozinsky’s name.

  35. Commenters on Salon are already calling the Republicans treasonous – TRAITORS – for suggesting they won’t allow Obama to appoint someone here.

    1. To be fair, commenters on Salon would call Republicans treasonous for suggesting that Obama’s face shouldn’t be put on the American flag.

      1. No, I think they’d just stick with Racist for that. No, who am I kidding. They’d go to Racist Traitors within a day.

          1. Sounds vaguely transsexual.

    2. But……..Salon commenters ARE traitors. As is every progressive. Do these idiots think they are actually Americans?


    1. It’s argy bargy, not arglebargle.

      Sometimes it’s Barmy Army, too.

      The latter comes in two flavors:

  37. Well, if Obama does get someone in, and then a Republican gets elected president, maybe Ginsberg will die and the balance of power will be restored.

    1. That was my first thought too.

    2. Maybe Obo will die soon? How much harm can Biden cause in 11 months?

      1. The controversy with him would not be appointing a complete idiot to the court but which bade he got to with the appointee’s underage daughter at the press conference.

      2. Slightly OT, but I’ve been wondering, who changes Biden? Does his Secret Service detail do it, or is it regular white house staff who changes his soiled adult Depends?

        1. Why? You want to get some for a souvenir?

  38. Calling it now, Scalia was assassinated over the Clean Power Plan. He was the fifth vote.

  39. i disagree with at least 75% of what he stood for. i admired him greatly nonetheless.

  40. If the overriding theme of Kennedy’s DOMA opinion is the protection of liberty, the theme of Scalia’s dissent is respect for majority rule. “The Constitution does not forbid the government to enforce traditional moral and sexual norms,”

    That is the wrong question to ask. The right question to ask is: where in the Constitution was the government granted this power.

    Originalist? Scalia was a pathetic joke, a defender of ochlocracy. It’s people like him that cause people to associate conservatives and fascists, because majority infringing on the liberties of minorities for the good of society is at the heart of fascism. It’s also historically quite typical of political Catholicism.

    Sadly, whoever follows him will be even worse.

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  43. He may not have been a libertarian, but he was a solid bulwark against the tides of “progressivism” and “a living constitution”.

    RIP Judge Scalia.

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