Appointing Supreme Court Justices has become critical to political parties!

I will be surprised if the conspiracy stories do not begin soon over Supreme Court Justice Antonin Scalia’s death. There were some very important cases about to be ruled on, cases that have tremendous political ramifications.

Among these is Friedrichs vs. California Teachers Association, a landmark case regarding the mandatory collection of union dues and their use for political purposes. The ruling could have meant the death of collective bargaining and the political might of America’s unions.

The Democrat Party has depended on the union votes for decades to keep them in power. Since Reagan the union’s power has slowly eroded and if employees were not forced to pay union dues their political power would have most likely ended. Without political power to threaten politicians with their block votes and large campaign donations politicians would no longer have a reason to rule in favor of union bosses even when the politicians know their decisions are not in the best interest of the country as a whole.  

After oral arguments in the case in January, The Washington Post indicated the court’s conservative majority, including Scalia, were leaning to rule against the union’s ability to collect mandatory dues. But, with Scalia’s passing and the news that the Republican led Senate will likely not confirm an Obama nominee means such cases could end up with a 4 to 4 decisions. Lacking a majority, the lower court’s rulings would stand in favor of the unions.

Had the Supreme Court ruled that union dues could not be used for political purposes, it would have dealt a major blow to one of the Democrat Party’s most powerful assets.

Another key case is U.S. vs. Texas, in which opponents challenged the legality of the president’s executive orders dealing with illegal immigrants. Signs are now strong that it will be decided at the lower court level and the Supreme Court will not deal with it.

Supreme Court justices take a vote on a case immediately after oral argument, cases that have already been argued, even if no opinion has been written yet, the Chief Justice has an obligation to include Justice Scalia's vote in those cases. In other cases where no vote has yet been taken, we may get tied votes which means the lower court decisions will stand. That means that a number of controversial issues will have to be brought back to the court in new cases when there are nine justices.

Not all legal experts agree with the view Chief Justice Roberts could issue a decision using Scalia’s vote.

Senator Elizabeth Warren, a Massachusetts Democrat, blasted comments by Senator Mitch McConnell, the majority leader that the Senate would try to block President Obama from nominating a new justice to replace Justice Antonin Scalia.

Ms. Warren said, “Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did when President Obama won the 2012 election by five million votes.”

That is not what Ms. Warren and other Democrats were saying in 2008 and 2004 when they were afraid that George Bush would appoint a new Supreme Court Justice prior to elections. The Democrats in 2008 and 2004 like the Republicans in 2016 threaten to block a new nominee for the Supreme Court.

In the 1840’s and 1860 the Supreme Court went two years without nine Justices. That is certainly not an ideal situation, but the Supreme Court operated during those periods and would do the same today regardless of what Harry Reid says about the Court cannot go one year without nine Justices.

There was a time when the Supreme Court exercised its role as final decider on important public issues, modestly, on a non-partisan, non-ideological basis and only when necessary to protect the Constitution from clear excesses committed by the political branches. In my opinion those days are long gone there is no denying the Supreme Court has become just another arena for playing out the same partisan and ideological warfare that dominates the other branches. This is why political parties and politicians fight so hard to have their president make these appointments.

The current size of the court, nine justices, is not established in the Constitution. It has varied over U.S. history from five to ten.  The changes in the size of the court were almost always done for partisan/political/ideological reasons. Constitutionally, the number of justices could be changed again. F.D.R. is the last president to try to change the number on the court, but he failed to do so.

Republicans and Democrats have been obstructionist, mean-spirited and unfair when it comes to appointing Supreme Court Justices. Be careful of what you believe coming from the mouth of politicians from either political parties during this time of replacing Justice Scalia and be careful of the conspiracy stories that will likely begin over Scalia’s death – no autopsy, no heart failure, death due to natural causes, enjoying a hunting trip and vacation the day before he died will only feed them.