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The Court After Justice Scalia: The Perspective on a Portland Defense Attorney


In today’s video Merritt Heminway talks about the Supreme Court after the death of Justice Scalia. Heminway discusses the consistent originalism of the late Justice, where his death leaves the court now, and what he would perhaps think about the current obstruction of the Senate.

Watch the video to learn more.

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How will the death of Scully affect the Supreme Court?

Justice Scalia died in his sleep in a ranch in Texas was the news a couple weeks ago and that has sparked quite a debate in the United States Senate and in the newspapers around the country about how President Obama with the advice and consent of the Senate will fill that vacancy on the Supreme Court.

Right now we have eight justices on the Supreme Court we’re supposed to have nine. And the Supreme Court is continuing to hear arguments and continuing to hear decide cases. To the extent that the extreme court can decide cases with only eight justices it will continue to do so and they have indicated that. When the Supreme Court ties four to four the decision of the lower court below stays in effect. So who ever one below will win at the Supreme Court if it’s a tie. And so it’s an imperfect system right now. There are a number of very important cases before the United States Supreme Court that can certainly benefit from nine justices. Meaning they can certainly benefit from definitive answers on these important legal questions. And the posture of the Republicans in the United States Senate is not encouraging for the administration of justice. It looks like we maybe stuck with only eight justices on the Supreme Court until past the presidential election and however long it takes to nominate someone with the new president. All attorneys look to the highest court in the land for guidance on what courts should do, what courts are likely to do, and what the law is. And the longer that the Supreme Court is hampered by not filling a vacancy the more disturbing it is for all of us, really. It’s not just because the court is down to eight justices, its because it’s Justice Scalia. When we were in law school we loved reading Justice Scalia or we hated reading Justice Scalia. Scalia is huge, his writing style, his opinions were so strong and so forceful that everyone had an opinion on Scalia. His absence is creating a political fire storm. The political balance of the court, if there is such a thing, and the way the court is deciding really important issues that it is before it right now. Scalia was a reliable vote for certain few of the law and how the constitution is to be applied to our lives and with him gone, we know whoever replaces him will be nothing like Scalia. And so the stakes are wicked high right now.

Justice Scalia believed or professed to believe that the United States Constitution should be interpreted as close as possible to the way in which it was interpreted at the time it was written. So Justice Scalia’s opinions are famous for trying to get back into the heads of the people who were around in the late 1700s. He is famous for analyzing what English common law was like in the 16th century. Or how the framers of our country, the framers of the constitution might have thought about access to an iPhone. And so some of his arguments become absurd and fun to read in that respect, but his philosophy that the Constitution and the Bill of Rights ought to be interpreted as they were interpreted. And that’s what he was known for and certainly whoever replaces him will not be able to match that level of intellectual consistency.

The irony here is Scalia was such a strong originalist and strong interpreter of what he perceived to be the original meaning of the Constitution. And the Constitution of course is what gives us guidance on what new Supreme Court justices come to be that the President appoints and that United States Senate gets its advice and consent. And so to the extent that the United States Senate could be seen as not filling its responsibility to give  advice and consent is a bit of an irony there that it happened to be Justice Scalia that they are replacing because of course one can imagine that he would have a very strict view of what the Senates’ role is here and may have had a very dim view of the Senate seeking to delay this process.

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