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First take/Scalia

Supreme Court Justice Antonin Scalia came to Idaho in August 2014, and nether made major headlines nor left any controversy in his wake. He was in Boise to deliver a keynote address at a ceremony honoring the successful conclusion (or near-conclusion, at least) of the Snake River Basin Adjudication. He considered it a tremendous success, as did just about everyone in the audience, and most people in the Snake River Basin.

That was an easy one. Many of the other statements Scalia, who died in his sleep last weekend, made over the years were far more heatedly challenged. Depending on where you sit on the ideological scale, Scalia probably was either the justice you most liked or most loathed. Some of his decisions, probably most often in the area of freedom of speech, crossed lines, but many fit neatly into our red and blue framework.

Which will make the next little while an interesting period in American judicial history.

Scalia’s involvement in any decisions which were not released publicly before his death will be considered void, so a string of 5-4 decisions on the court could now become 4-4 – with no final Supreme Court ruling at all issuing. Decisions made until a new justice is confirmed will have to cross ideological lines. Some will (by no means are all decisions 5-4; many get a stronger majority and some are unanimous) but many of the most controversial will hang fire. That technically means a decision made by a circuit court of appeals will stand – but only within that circuit, so the country could a legal patchwork of “final” court decisions on hot topics.

That’s part of the practical effect of a failure to fill Scalia’s court seat, as seems probable. The idea of holding off a Supreme Court appointment simply because a president is in the later part of his term seems like an odd approach. You wonder what that originalist Scalia would have thought of it. – rs

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