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Voting from the grave: Legal expert believes Scalia should still have a say

Supreme Court Justice Antonin Scalia participates at the third annual Washington Ideas Forum at the Newseum in Washington ,Thursday Oct. 6, 2011.    (AP Photo/Manuel Balce Ceneta)

Supreme Court Justice Antonin Scalia participates at the third annual Washington Ideas Forum at the Newseum in Washington ,Thursday Oct. 6, 2011. (AP Photo/Manuel Balce Ceneta)

An Arizona attorney who specializes in election law thinks recently deceased Supreme Court Justice Antonin Scalia should be able to vote on pending cases from the grave — sort of.

Kory Langhofer acknowledged Tuesday there is no way to discern how the justice, who died earlier this month, might have sided in recently heard cases.

Langhofer pointed out, however, that the justices go into conferences and take votes on how the case should be decided. And he said it might even have gotten to the point where Scalia had actually crafted an opinion.

He said there’s no legal reason to ignore all that.

But Paul Bender, former dean of the Arizona State University College of Law, said there is one big reason why Scalia’s vote — and even his draft opinion — should not matter: By precedent, the high court says decisions are not made until they are actually published.

Bender said there’s a good reason for that.

“The case is not decided because they take a vote in conference,” he said.

“That’s a tentative vote,” Bender continued. “People change their votes up until the last minute.”

Langhofer conceded that can happen. But he said that, at some point, it’s pretty well known how the justice is going to vote, especially if he or she has written an opinion that is just waiting to be released.

He compared it to someone who might have cast an early ballot or even gone to the polls early in the morning and then gets hit by a car. Langhofer said that vote counts even though the person has died by the time the votes are counted.

Langhofer agreed there is a key difference: Unlike a Supreme Court opinion which can remain in flux until finally issued, once an individual deposits that ballot it cannot be changed.

But he could identify no Supreme Court policy which says once someone dies — or even becomes comatose — that their decision to decide a case a certain way is voided. And Langhofer said there are reasons such a policy would make no sense.

“Do we want to say that if a justice dies suddenly that the outcome of a case will change?” he asked.

Langhofer said that could lead to all sorts of mischief. And he’s not talking assassination attempts.

First, he said, it could invite rushed opinions by the group of justices that has more votes for its conclusion.

“If you have a sick member in your majority, you could say, ‘Look, I know you just wrote this last night and it’s not too great, but just go ahead and sign this real quick,’’’ Langhofer said. “That’s not what we want.”

Conversely, he said, if the dissent in what would be a 5-4 ruling knows that a justice in the majority is not well, those justices could delay a final opinion. That would result in a 4-4 tie, leaving the lower court decision intact.

Bender, by contrast, said this is not an undecided policy.

“Only people who are there when the case is handed down can vote on it,” he said. “It’s not a question of doubt anymore.”

Bender said if a lower court ruling is affirmed by a 4-4 vote, it sets no precedent.

“The issue will come up again,” he said, at a time when there is a full bench.

Langhofer acknowledged that the chances of the Supreme Court adopting his proposal is probably not good.

“I think what they will say is we’re going to follow our custom of requiring a wet signature from a live hand on a final opinion,” he said.

2 comments

  1. Actually, a wet signature from a live hand on a final opinion sounds like a pretty good policy or custom to follow.

  2. I hereby conjure up all the writings of Jefferson, Adams, Madison and John Jay and kick Scalia’s Papist *** all the way to the 9th circle of Hell.

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