TWO YEARS AFTER SCALIA, SCOTUS STILL FEELS HIS INFLUENCE | Four Justices Holding It All Together | Some Classic RBG Shade
February 13, 2018
TODAY IN HISTORY
|On this day in 2016, JUSTICE ANTONIN SCALIA was found dead at a private residence in West Texas. The influential justice was perhaps the most provocative member of the U.S. Supreme Court, and he died at the age of 79.
LOST BUT NEVER FORGOTTEN
|Two years after his death and JUSTICE SCALIA’S disruption of and influence on the nation’s highest court continues. Rick Hasen notes in The Washington Post, “Scalia changed the way the Supreme Court writes and analyzes its cases and the tone judges and lawyers use to disagree with each other, evincing a pungent anti-elitist populism that, aside from some criminal procedure cases, mostly served his conservative values. Now the judiciary is being filled at a frenetic pace by Trump and Senate Republicans with Scalian acolytes like Supreme Court JUSTICE NEIL M. GORSUCH, who will use Scalia’s tools to further delegitimize their liberal opponents and continue to polarize the federal courts.”
WHAT'S THE HOLD-UP WITH SCOTUS
|Is it possible that the Supreme Court was better off with only eight justices in the fourteen months following JUSTICE SCALIA’S death? CNN’s Joan Biskupic reports that now that the court is back to a full bench of nine, the justices seem to have lost the cooperative spirit they held onto while waiting for a ninth justice to join the court. Biskupic: “The justices have issued only four signed decisions since their session began in October, down from the average of roughly 10 by this time of the year over the past half decade.” And though it’s difficult to understand exactly why the justices are having a hard time pushing out opinions this term, it’s clear there’s some kind of hold-up that could mean we’re in for a splashy spring and early summer.
THE FEARSOME FOURSOME
|“JUSTICE ELENA KAGAN committed a breach of protocol midway through the U.S. Supreme Court’s Dec. 5 argument in a case involving a cake for a gay wedding. Seeing that a lawyer’s time was expiring but wanting to ask another question, Kagan said she was confident CHIEF JUSTICE JOHN ROBERTS would give the attorney a bit more time. Kagan then looked sheepishly toward Roberts. ‘Is that OK?’ she asked. Roberts gave her a look of mock exasperation, and the courtroom burst into laughter. The fleeting moment showed the rapport between the two and offered a glimpse into the dynamics of a court that often splits 5-4 along ideological lines. Kagan and Roberts are part of a quartet of relatively centrist justices, along with ANTHONY KENNEDY and STEPHEN BREYER, who at times can turn their chemistry into a consensus and avert a sharp divide.” Greg Stohr with Bloomberg reports that while the rest of Washington is as divisive as ever, the justices seek consensus on some of the most important issues of our time. “Hardly ideological soulmates,” he writes, Kagan, Breyer, Kennedy and Roberts are unlike their five other colleagues in that they are more willing to “muffle some disagreements for what they see as the greater good.”
SHADY LADY
|In her interview with CNN’s Poppy Harlow, JUSTICE RUTH BADER GINSBURG threw a little shade in the way of some of her colleagues when she said: “I respect all of my colleagues and genuinely like most of them.” As Michael McGough in the Los Angeles Times notes, what’s with the “most of them” line?? The comment got some attention on Twitter which McGough says is a shame “because the rest of the interview was fascinating.” He goes on, “There’s nothing wrong with Supreme Court justices going on the lecture circuit or agreeing to media interviews. But when it comes to some subjects — including presidential elections and the likability of one’s colleagues — even an activist justice should probably exercise judicial restraint.”
NOT GOOD ENOUGH
|For your gerrymandering news of the day, we bring you the latest from Pennsylvania where Democratic GOVERNOR TOM WOLF just rejected the Republican-drawn congressional map for still unfairly protecting Republican candidates. The state supreme court ordered the map be re-drawn after ruling it as an unconstitutional gerrymander. But now that the governor has rejected the new map following the court ruling, it goes to the state’s top court to create new boundaries that would be used for the November midterm elections.