Justice Scalia's Passing Leaves Me Sad and Worried

I would normally start a Monday morning post with a cheerful message. Nobody wants doom and gloom on the first day of the week. Unfortunately, today’s post will have to tackle a decidedly sadder and more concerning event: the surprising death over the weekend of U.S. Supreme Court Justice Antonin Scalia.

For those who don’t follow the proceedings or makeup of the U.S. Supreme Court closely, Justice Scalia was an intellectual and legal titan. Appointed to SCOTUS by Ronald Reagan in 1986, he almost single-handedly led a “conservative revolution” on SCOTUS that has left an indelible imprint on the high court’s thinking and reasoning. A staunch believer in constitutional originalism, he supported the idea that the U.S. Constitution ought to be read in light of what it actually says, not interpreted through the warped lens of the political fads of any given administration or era (imagine that).

In many ways, one could argue that it was Scalia who brought the intellectual firepower needed to push constitutional originalism into the mainstream. His ideas, critiques, and arguments will echo for decades to come, and have forever changed the conversation surrounding constitutional law in America. One day 100 years from now, long after I’ve grown up and lived out my life, my great-grandchildren will learn about Antonin Scalia and the inerasable impression he left on the United States—an impression he left while earning the respect and admiration of even those who vehemently disagreed with him.

Simply put, Justice Scalia was a superhero. To conservatives and believers in the constitution as the Founding Fathers wrote it, he is something of a father figure. He will be dearly missed. Rest in peace, Justice Scalia, and thank you for your service and commitment to our nation.

Sadly, there will be little time to grieve Justice Scalia’s death. A massive political firestorm has begun over whether President Obama should nominate a replacement during his remaining 11 months in office, or whether that decision should be left to his successor. With SCOTUS now evenly split between four liberal and four (usually) conservative justices, whoever fills Scalia’s seat will shift the balance of power on way or the other for the foreseeable future.

Democrats argue that Justice Scalia’s seat should be filled immediately, while the Republican U.S. Senate majority believes the decision should be made by the voters through their selection of the next president. Because anyone nominated by the president must be confirmed by the U.S. Senate, we now have front-row seats to perhaps one of the most epic political standoffs in United States history.

That standoff is only one front in a battle that has nearly incalculable bearing on the future of the United States. The added variable of Scalia’s majority-altering seat has intensified the already nasty battle for the presidency, but it also has important implications for Republican efforts to maintain a narrow 54-seat majority in the United States Senate. Leaders on both sides of the political aisle are fully aware that 2016 just became the most important election year of their lifetimes. This one’s for all the marbles.

So where does all this leave us on education? There is an important Blaine Amendment case out of Missouri pending before the court, and the critical Friedrichs case on forced payment of union “agency shop” fees has yet to be officially decided. Additionally,  Douglas County’s voucher case, which deals with Blaine Amendments as they relate directly to K-12 private school choice programs, still hangs in limbo. We were supposed to find out this month whether the case would be granted certiorari.

To answer the question of what Justice Scalia’s death means for these important edu-decisions, one needs to understand how Scalia’s absence alters the dynamics of SCOTUS. The court is currently comprised of nine individuals. There are now eight. And as I mentioned earlier, those eight are evenly split between the left and right sides of the political and philosophical aisle (with some interesting caveats). That raises the distinct possibility of ties in contentious cases. Unfortunately, a tie means that the relevant lower court decision is upheld. The good news is that the decision is upheld without creating a binding precedent. The bad news is that the only way to revisit the issue is to litigate it again—a process that could take years.

The most immediate ramifications of the tie vote rule work in favor of unions, and particularly the teachers unions. Tough questions asked from the bench during oral arguments in the Friedrichs case led many to believe that a decision against agency shop fees was all but inevitable. Such a decision would have been a significant victory for teachers and other workers forced to pay tribute to deeply political (i.e., Democratic) unions with which they disagree, and would have put a big dent in teachers union budgets in many states across the nation (though unfortunately not Colorado). Justice Scalia’s untimely departure has changed all that. A tie now seems unavoidable, which will result in the unions getting to keep their forced tribute payments for now. Ick.

It’s not as clear how Scalia’s absence will play out in the court’s decision to hear the Douglas County voucher case, or any potential decision that could produce. Certiorari decisions are dependent to some extent on the makeup and dynamics of the court, both of which have now been altered. The Missouri Blaine case’s fate is also a mystery, though things don’t seem promising on that front. I was already worried about a favorable ruling in that case being so narrowly construed that it would stop short of fully dealing with Blaine Amendments once and for all. That outcome now seems likely—assuming the court is able to avoid a tie.

All of this is made worse by the sheer difficulty of getting a case in front of the U.S. Supreme Court in the first place. As I’ve mentioned before, SCOTUS only takes 80 of the 8,000 or so cases it is asked to hear each year. To grant cert, the court has to believe that a given case surfaces a critical constitutional issue, and that the case provides the best vehicle for addressing that issue. That is not an easy bar to meet, and getting in front of the justices requires an awful lot of work by an awful lot of people.

So yeah, Justice Scalia’s untimely death was not the best news for education (or energy, or the Second Amendment, or a number of other critical areas). It’s incredibly frustrating to think that after all the hard work spent getting Blaine Amendments and union coercion in front of SCOTUS, we now face the distinct possibility of getting no real decision at all—or worse. Then again, the tide always wins against the sand castle in the end. It may take a little longer to knock down Blaine Amendments and free teachers of forced union tribute, but I’m confident those things will eventually happen.

Little Eddie will be watching as all of this unfolds. But I’ll be honest and say that right this second, I’d happily trade my favorite toy to have Justice Scalia back.