President Obama and Congressional Republicans are hurtling toward a constitutional impasse over replacing the late Supreme Court justice and Twitter egg Antonin Scalia, and Arizona attorney Kory Langhofer has a solution:
Rather than fighting over which living jurist should replace Scalia, we could simply let Scalia vote from the grave. At least in the short term:
As Langhofer argued, “There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted…We know exactly what he thought. And it’s not unprincipled to say we should give affect to that.”
The argument is simple: It’s no secret that Justice Scalia was a raging conservative, so it wouldn’t be that big of a deal if we gave the conservative side of the Supreme Court an extra vote for Scalia’s ghost in cases that he’s already heard.
This argument does require Langhofer to concede that judicial review in the modern era is often little more than a formality, but that doesn’t require much imagination, either. Being partisan appointees in a hyper-partisan era, we know how at least seven or eight of the nine Supreme Court justices are going to vote in cases with high-profile political implications long before such cases are argued. Scalia was one of those justices. Furthermore, as Langhofer pointed out, justices cast preliminary votes early on in the process, and they almost never change their minds. This being the case, we really do know exactly where Scalia was going to come down on issues currently before the court — the executive’s authority to regulate greenhouse gas emissions; the principle of one person, one vote; TRAP laws restricting abortion access; and so on.
However, that being said, come on. It apparently doesn’t go without saying that Scalia, a self-described textualist, would cite Article III of the Constitution, which states that Supreme Court justices “shall hold their offices during good behavior,” to point out that dead people don’t “behave” in any way — good or bad. In a hypothetical case of Scalia v. BRAAAAAAINS, no Ouija board is required to figure out that Scalia would write for the majority in a 9-0 ruling holding that Kory Langhofer is a fool, and that his argument is pure applesauce.
Or maybe not. Scalia’s brand of textualism was adopted out of convenience, and was often little more than a prop to justify conservative politics. Were he alive today, it’s entirely possible that he’d argue for letting politically-motivated zombies set legal precedents. We simply can’t be sure.
And that’s the point.