Scalia Death Conspiracy - Examining the Presumptive Motive

Superficially, the motive seems clear:

Less than 48 hours ago, the SCOTUS was composed of 5 justices appointed by Republican Presidents and 4 appointed by Democrats. With the death of Justice Scalia, there is now an equal split. With a number of cases important to the current administration coming before the SCOTUS in the spring, it's easy to assume that the death of a conservative justice is an immediate benefit to Obama and the Democrats.

When it comes to first order thinking, it's a compelling argument but does it really stand up under scrutiny?

Let's first examine the likelihood of Obama appointing a replacement. There are two ways this could happen:

1. A regular appointment with confirmation by a GOP controlled Senate. We can all but rule this out given Senate Majority Leader McConnell's comments. In my opinion, there's only two scenarios in which this happens that have even the faintest of chances. The first would be that Obama and the Democrats can put enough pressure on McConnell and the Senate Republicans to... oh screw it, we know this isn't happening so why waste the post space? The other, probably less likely scenario would be that Obama nominated somebody who leans far enough to the right that a GOP leadership, unsure of the outcome of the election, preemptively chooses the lesser of two evils — particularly if they believe Sanders might win.

2. A recess appointment. Article II, Section 2 of the U.S. Constitution reads, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." That means that any recess appointment would expire at the beginning of 2017. In 2014, SCOTUS ruled recess appointments in lower courts made by Obama in 2012 to be invalid because the recess during which they were made was too short. In the majority opinion, Justice Breyer stated that 3 days was not long enough to qualify but 10 days would. Senate is in a 10 day recess that ends on the 22nd. Assuming that was the end of the story (and it's not) that would give Obama a week to make an appointment after which he'd have to wait for another recess of 10 days or more. I'm deliberately omitting the discussions over the constitutionality and interpretation of this 10 day limit. The appointment would likely expire before it could be invalidated and the cases would have been heard. Furthermore, it's likely a moot point IMO because I don't believe Obama will risk alienating potential votes for the Democratic candidate in the upcoming election with two additional seats (Ginsberg and Kennedy) more likely than not being filled by the next President.

That said, if Obama and the Democrats feel there is very high probability of the Republican candidate winning, it would make sense to go for the sure thing. All things considered, I'd put the odds as low that this vacancy will be filled though not low enough that I'd bet the house on it.

So what does it mean if there's no replacement? It's important to understand that in a 4 - 4 split, the lower courts' rulings would not be overturned. It's getting late so in the interest of wrapping this up, I'm going to excerpt case details from The Simply Breathtaking Consequences Of Justice Scalia’s Death at ThinkProgress:

Abortion - probable outcome not changed, advantage still conservatives:

Whole Woman’s Health is the greatest threat to Roe v. Wade to reach the Supreme Court in a generation. If five justices back the Texas law in this case, it is unclear that there will be any meaningful limits on states’ ability to pass anti-abortion laws.

Without Scalia’s vote, however, the chances that the Supreme Court will uphold the Texas law outright is vanishingly small. Should they split 4-4, however, the Fifth Circuit’s decision upholding the Texas law will stand and states within the Fifth Circuit (Louisiana, Texas and Mississippi) will most likely gain broad discretion to restrict abortion while Scalia’s seat remains open.

Birth Control - probable outcome not changed, slight advantage progressives:

To date, every federal appeals court to consider the question but one, the Eighth Circuit, has upheld Obama administration rules enabling women to obtain health plans that cover birth control even if their employer objects to contraception on religious ground.

There is a good chance that Justice Anthony Kennedy, a conservative who occasionally votes with the Court’s liberal bloc in politically charged cases, could vote to uphold these rules as well, producing a 5-3 vote. If Kennedy votes with the conservatives, however, women’s access to birth control will vary from circuit to circuit.

Unions - advantage progressives:

Public sector unions are saved, at least for now. After oral arguments in Friedrichs v. California Teachers Association, it appeared likely that an ambitious effort to defund public sector unions would gain five votes on the Supreme Court. Now this effort only has four votes. Moreover, because the plaintiffs in this case lost in the court below, a decision affirming the lower court in an evenly divided vote is effectively a victory for organized workers.

Redistricting - advantage progressives:

Similarly, the plaintiffs in Evenwel v. Abbott, a case that could have effectively forced many states to redraw their congressional maps in ways that would give more power to white voters and less to communities with large numbers of immigrants, almost certainly will not have five votes. Because the court below ruled against these plaintiffs, states will not have to redraw their maps, for now.

Affirmative Action - probable outcome not changed, slight advantage conservatives:

One case where Scalia’s absence could matter less is Fisher v. University of Texas, a challenge to affirmative action programs in university admissions. Although the court below upheld the University of Texas’s program, liberal Justice Elena Kagan is recused from this case. Therefore, four votes are enough to make up a majority. If the Court’s remaining conservatives vote against affirmative action, that is enough for them to get their way.

I saved perhaps the most complicated for last - Immigration - advantage still conservatives (sorta):

United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.

In the event of a 4-4 split, the Fifth Circuit's order stands but if a different circuit court issued a conflicting order, then there's no clear national precedent.

For those questioning the above source, these cases are similarly discussed i n an article at USA Today with generally the same observations as above.

My conclusion is that Scalia's death does confer a slight advantage to the administration / other "left-wing" interests but is the difference in outcomes one that is great enough to foster a conspiracy to assassinate a Supreme Court justice — particularly this close to such a contentious presidential election? In my opinion, no.

Regardless of your opinions, I hope this information helps put things in better perspective.

a reply to: theantediluvian

Wow! I didn't realize how many of these cases had Texas connections. It appears to me that Texas conservatives, like Ted Cruz, have the most to gain, politically, from Scalia's death.

Very interesting, indeed.

Thanks for posting.

a reply to: theantediluvian

If there was a sitting republican president in office, would conservatives be fighting against appointing a replacement? I think not. It's partisan politics as usual and stinks of conservatives trying to delay the appointment so they can stack the SCOTUS in their favor. Obama has a constitutional right to appoint a replacement. This is just another example of republican obstructionism.

Just another reason why the two party system creates divisiveness and obstructs the business of government.

a reply to: WeRpeons

Senate Democrats passed a resolution against election-year Supreme Court recess appointments

www.washingtonpost.com... ourt-recess-appointments/

originally posted by: infolurker
a reply to: WeRpeons

Senate Democrats passed a resolution against election-year Supreme Court recess appointments

www.washingtonpost.com... ourt-recess-appointments/

RECESS appointments do not affect the entire 11 months or so in Mr. Obama's term.

Still a fail.

originally posted by: infolurker
a reply to: WeRpeons

Senate Democrats passed a resolution against election-year Supreme Court recess appointments

www.washingtonpost.com... ourt-recess-appointments/

Yes and of course the Republicans objected:

Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.

The lesson here I think is that political gamesmanship isn't anything new. I don't believe he'll go for the recess appointment but he could. In terms of long term strategy, it doesn't seem to make a whole lot of sense though.

a reply to: infolurker

Senate Democrats passed a resolution against election-year Supreme Court recess appointments

Resolutions are opinions they're not law. This resolution was made when the democrats had control of the house.

Like I said before, this is nothing but partisan politics and republican obstructionism. If the shoe were on the other foot, do you really think republicans would be complaining? The democrats are guilty of the same thing! These parties and their platforms pressure representatives from leaning and voting on issues that the opposite party may believe in. Until we have individual representatives who can truly express their own opinions on the issues instead of following a particular party "platform", we will we continue to have obstructionism. The whole party system has turned into the likes of rooting for your favorite football team! Their team/party can do no wrong. We see it here on ATS all the time!

From your own source...

Each of President Eisenhower’s Supreme Court appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.

Both sides are going to use whatever they can to ensure they control the pick. Neither Republicans or Democrats have the high road and both have said the opposite of what they will do in this scenario.

The Republicans are going to try to delay till after the election and the Democrats are going to try to make a lame duck choice.