It is difficult to quantify the impact on the nation of the recent death of Supreme Court Justice Antonin Scalia. Adored by conservatives/originalists, and reviled by progressives and the “living Constitution” crowd, Scalia was not only arguably the greatest legal mind of his generation, but one of the most brilliant and articulate legal scholars in all of America history. Combining rapier wit with a towering intellect, he shaped the legal thinking of conservatives and liberals alike in the judiciary.
In recent years many of the most controversial rulings handed down by the Supreme Court have come in the form of 5-4 rulings, typically with Justice Anthony Kennedy being the swing vote. The loss of Scalia leaves the Court with eight justices, increasing the likelihood of 4-4 decisions that, rather than establish constitutional law precedent, leave issues unsettled and keep in place lower court rulings.
In the near term, that means partial victories for the forces of statist progressivism, and one of the most important of those victories for progressives came this week with the Supreme Court’s 4-4 split in Friedrichs v. California Teachers Association. The case revolved around whether public employee unions could continue to force non-union employees to pay fees to the unions to cover the cost of collective bargaining, from which the non-union employees supposedly benefit. California teacher Rebecca Friedrichs, along with a coalition of conservative groups, asked the Court to overturn its ruling in the 1977 case of Abood v. Detroit Board of Education, arguing that to compel her to pay union dues against her will was a violation of her free speech rights, since labor unions spend millions and millions of dollars of union dues each year on political activities with which many members disagree. Based on the tenor of oral arguments in January, it was all but certain that the Court would rule against the government employee unions.
This would have been a particularly devastating blow to labor unions in general, and government employee unions in particular, after a string of defeats across the county in recent years. From Wisconsin Governor Scott Walker successfully breaking unions in his state and ending the practice of payroll deduction of union dues, to former union strongholds like Indiana, Michigan, and Wisconsin becoming right-to-work states, to the number of Americans as union members reaching historic lows, the unions were desperate for a win.
With the 4-4 decision in Friedrichs, unions get a reprieve. To put the ruling in perspective, had the unions lost, they’d have not only lost the $650/year in dues they collect from Rebecca Friedrichs, but potentially tens of millions of dollars in dues from others who are compelled to pay, putting at risk the large pool of cash unions use to buy the votes of Democrat politicians in exchange for labor laws favorable to their agenda.
The ruling also highlights just how critical it has become, at a time when the federal government has grown far in excess of its constitutional bounds, and the separation of powers doctrine is largely ignored, for each side to be able to place justices on the Supreme Court (and the federal courts which are the “farm team” for the High Court). If Obama is able to fill the vacancy left by Scalia, the 5-4 decisions in favor of the rule of law quickly become 5-4 and 6-3 rulings in favor of the “living Constitution” and a litany of court-created special rights which violate the letter of the Constitution.
This also explains the demonstrable, abject hypocrisy of the Democrats who now excoriate a Republican Senate which has vowed not to consider any nominee put forth by Obama in his final year in office, claiming Republican racism and lamenting the creation of a so-called “constitutional crisis”.
The Democrats were not always so concerned about filling Supreme Court vacancies. In 1992, with former President George H.W. Bush in his final year in office and rumors of Justice Blackmun’s impending retirement swirling, then-Senator Joe Biden sang a different tune, warning President Bush against nominating a replacement.
In what was later dubbed the “Biden Rule”, Senator Biden then stated “Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention. It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over…That is what is fair to the nominee and essential to the process.”
Of course, now that he is Vice President and a Democrat is making the selection, Biden is suddenly anxious to get Obama’s nominee, federal judge Merrick Garland, confirmed before the end of his term.
Commenting recently, Biden stated “The Framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts. If those conflicts are allowed to stand, we end up with a patchwork Constitution inconsistent with equal justice and the rule of law. Federal laws that apply to the whole country will be constitutional in some parts of the country but unconstitutional in others… . The meaning and extent of your federal Constitution, your constitutional rights—freedom of speech, freedom to follow the teachings of your faith, or to determine what constitutes teachings of your faith, the right to be free from unreasonable search and seizure—all could depend on where you happen to live.”
It is deeply ironic that Biden expresses fear that our free speech and religious rights will be at risk if we don’t confirm a Democrat appointee immediately, considering that in nearly every major case involving those issues to come before the Court in the last eight years – including the Little Sisters of the Poor v. Burwell, where Obama is trying to force an order of Catholic nuns to pay for health coverage that covers birth control and abortion, in direct violation of the most basic tenets of their faith – the Obama administration has argued against the protection of constitutional rights.
Republicans can’t immediately remedy the incalculable loss of Justice Scalia, but they can prevent his memory and his legacy from being dishonored by rubber-stamping the appointment of a progressive justice to his seat, who would undo decades worth of brilliant work on the High Court by a man who did more to protect the Constitution during his tenure than the Congress has done collectively in the last century.