Institutional Crisis in the US: the Death of Justice Scalia, Texas-Style

The passing of the Supreme Court justice opens the doors to possible governmental crisis, if congressional Republicans refuse to approve a replacement named by Obama. In a curious twist of fate, the justice died under strange circumstances in Texas, the same state where several lawsuits of historic importance originated, and on which Scalia would have had to decide in 2016.

The death of United States Supreme Court Justice Antonin Scalia, 79, on Feb. 13 in a remote area of Texas, caused immediate political upheaval, in an election year that is already one of the most polarized in the history of the United States, and with key legal issues that the Court needs to resolve as a matter of urgency. Some of them potentially affect millions of people, as is the case with immigration. The presumed heart attack that took the judge’s life leaves several potential crises ready to break. Here are some important factors in the analysis:

The Justices Have Life Tenure, and Have a Profound Impact on the Political and Social Life of the Country

In one of the most undemocratic features of the U.S. political system — though welcomed by certain factions who see this as a guarantee protecting the impartiality of the legal system — the justices of the Supreme Court are appointed by the U.S. president, confirmed by the Senate, and hold tenure for life, or until they resign voluntarily. As such, because the appointee will hold life tenure, it is the only position through which the U.S. president can leave a mark on people’s everyday lives extending far into the future, even long after that president’s death. The position’s life tenure is a fundamental fact that adds a huge political component to the choice and eventual confirmation of a new Supreme Court justice.

The Republicans Have Already Announced that This Is Nothing New: They Will Not Approve Anyone Named by Obama

In a constitutional crisis that could spin out of control, Republican presidential hopefuls and right-wing senators are being pressured to state in the public media that they will not approve anyone nominated by President Obama, since it is his last year in office and that therefore the new justice should be named by the next president, who will be elected in November. Of course, there is no legal or constitutional basis for arguing up front that President Obama can’t make a nomination. Obama is obligated and supported by the law, and he will do what the Republicans are afraid of — choose a candidate and send the name to the Senate, in an act that will make the conservative senators look once again like they are blocking the constitutional procedure that is required in these cases.

Choosing a Supreme Court Justice Implies Tampering With the Political Balance of an Institution Incorrectly Characterized as ‘Impartial’

This is the real reason for the Republican opposition to Obama’s naming a justice to replace Antonin Scalia. Every president who gets to name a Supreme Court justice knows that he has a historic opportunity to tilt the ideological balance in the direction of his beliefs. The struggle is between right-wing conservative justices, inclined toward the Republican Party, and moderate progressives who identify with, and operate on the basis of, the values of the Democratic Party. Of course, the ideological arithmetic is not infallible. Despite the fact that the Republicans had five of the nine justices before Scalia died, the Court nonetheless ratified the constitutionality of gay marriage, for example. That same Court, in a very controversial ruling, opened up spending on election campaigns, turning the U.S. presidential election into a race to the highest bidder with the ability to put millions of dollars on the table. But the combination of only a few, specifically nine, votes, and the fact of life tenure for the justices, makes the Supreme Court a superpower that can take society forward, or brutally move it backwards.

So, to summarize: Letting Obama name the ninth justice means that the Republicans lose the nominal conservative majority on the Supreme Court, and the balance tilts toward the center-left. The right already controls the Senate and the House of Representatives. If the Republicans win the presidency in November of 2016, and operating on the assumption that the new president would name the next justice, the Republican Party would become the absolute ruler of government institutions of the United States. A dream come true for the conservatives. On the other hand, if Obama names the new justice, this would put the Democratic Party in a better position, even though they might lose the presidency, or even if they win the presidency but without Congressional approval for the nomination.

Conspiracy Theories about Scalia’s Death Have Already Started To Circulate

The Washington Post quotes William Ritchie, former head of criminal investigations for the District of Columbia police, who has said he is unable to believe the procedures followed after Scalia’s death, in Presidio County, in a remote area in the western part of Texas. “As a former homicide commander, I am stunned that no autopsy was ordered for Justice Scalia,” he said.

The Presidio County Judge, Cinderela Guevara, certified that the death was from “natural causes.” She did this without having seen the body, and without requesting an autopsy. Also, Justice Scalia himself requested that there be no security personnel monitoring his stay at the “Cibolo Creek Ranch” luxury resort, which specializes in hunting activities for its guests.* The judge charged with certifying that he was indeed dead did so on the basis of reports from police officers who were in the justice’s room after his death. The justice’s family also demanded that no autopsy be performed.

Ritchie, the homicide expert cited by the Washington Post, said:

“You have a Supreme Court Justice who died, not in attendance of a physician. You have a non-homicide trained U.S. Marshal tell the justice of peace that no foul play was observed. You have a justice of the peace pronounce death while not being on the scene and without any medical training opining that the justice died of a heart attack. What medical proof exists of a myocardial infarction? Why not a cerebral hemorrhage?

“How can the Marshal say, without a thorough post mortem, that he was not injected with an illegal substance that would simulate a heart attack? Did the U.S. Marshal check for petechial hemorrhage in his eyes or under his lips that would have suggested suffocation? Did the U.S. Marshal smell his breath for any unusual odor that might suggest poisoning? My gut tells me there is something fishy going on in Texas.”

All that will make the justice’s death even more controversial.

The Republican Party Can Cause Total Gridlock on Crucial Issues in the Country’s Court of Final Appeal

It’s not as if the Republicans are afraid of draconian measures like that, given that they have previously taken similar action. On two occasions recently, with Bill Clinton, and also during Barack Obama’s presidency, they left the federal government without funding, and caused a government shutdown as a pressure tactic to force the Democratic presidents to back down on budget issues important to them.

Immigration

Not naming a Supreme Court justice means there will not be solutions to such urgent problems as, for example, immigration benefits and the process of slowing down deportations, which Obama has been trying to implement since last year. Governors of Republican-controlled states, led by Texas, rejected Obama’s pro-immigrant measures. After several appeals, it is assumed that the Court will hear the government’s final arguments in April, with a decision expected in June. The decision for or against will have an impact on the lives of between four and five million people.

Women’s Right to Abortion

It’s not just the immigration issue that’s in play; there are also rules restricting or maintaining women’s current rights to abortion, in a case that, once again, originated in Texas. That state seeks to add to the restrictions on doctors and institutions that deal with abortion; this has resulted in several organizations ceasing operations, complicating access to legal abortions for thousands of women.

Limits to Affirmative Action

Also in play are university affirmative action regulations, which for decades have facilitated access for minority, poor and under-represented groups who previously have not had access to good education. Conservative groups are seeking to eliminate favorable treatment based on the race of the candidates, which has been the fundamental basis of affirmative action principles.

Unions, Contraceptives and Electoral District Boundaries

There are other very important laws at stake, related to the collection of union dues, and to drawing electoral district boundaries — once again, in a case from Texas. In the case of electoral district boundaries, it is necessary to decide whether the process has to be based on the number of voters who actually have the right to vote, or on the general population, which includes, for example, children, prisoners and immigrants — the usual basis in this type of case. Another case again involves women: Catholic organizations want to have the freedom to deny contraceptive coverage as part of medical insurance for their employees. Currently, contraceptive coverage is required under the general law, known as Obamacare, approved at the urging of President Obama.

For all these reasons, and for others that will appear over time, a blockade in the process of replacing Scalia would be a serious blow to the country’s institutions. There are candidates who are already advancing an anti-system and anti-government platform — especially Donald Trump and Ted Cruz — plus a Congress controlled by the right which refuses any type of cooperation with President Obama. It is an extremely polarized election year. With the Supreme Court unable to function, essentially decapitated, and prevented from deciding fundamental legal issues like those described above, the death of Scalia, and the difficulty in replacing him, thus would seem to be a major setback, difficult to accept in relation to many fundamental rights of minority citizens, immigrants, women …

A Texas-style struggle.

* Editor’s Note: There is no mention of hunting on the resort’s website, www.cibolocreekranch.com.