Sunday, February 14, 2016

After Antonin Scalia’s Death, What’s Next for the Supreme Court?

I was home alone when both my husband and youngest son called me at the same time with this news. This is so HUGE. While there is no celebration in another human being's death, no matter how dark and wounded and consumed in ignorance, what is being celebrated by many at this time is the birth of new possibilities, including the birth that is trying to happen of a kinder, more just and compassionate and caring nation and world. The Dark Money that infiltrated our highest court, resulting in the obscene and toxic passing of Citizen's United has now lost some of its power and has a greater chance of being overturned sooner. There is so much to be done to transform the Oligarchy America has become to authentic democracy. And there continues to be much work that is needed in our highest court and our political system and collectively as a nation and individually in our own hearts to... simply be kind to ourselves and others and gain the wisdom and skills to act out of a higher good. My deep prayer is that we humans will increasingly be aligned in our words and actions with the values we say we cherish and practice. None of us does this perfectly, and we all fall somewhere on the continuum of more or less conscious and aware or asleep and ignorant. My problem with Scalia, for me, needs to stay focused not on him as a human being, but more so on his belief systems and actions which were, indeed, rooted in his own wounding and ignorance and projections. Yes, he may have been brilliant as far as IQ. And this man was also a human being who acted from his head up and not out of a strong mind-heart-soul connection. Intellectual intelligence can be a real problem - when cut off from heart-soul intelligence - as the more intellectually intelligent one is, the more elaborate our denial systems can be. And Scalia had very elaborate denial systems. Especially toward hearing and understanding and connecting with other human beings at a profound level. In this way, he was impoverished. Which is tragic. And to the degree that any of us are cut off from our hearts and acting out of ignorance rather than the wisdom and beauty of our true nature is the degree that we will inevitably cause harm to ourselves and others. Which Scalia did so much of. He did indeed cause great harm. Such a paradox that so often those who are elevated to positions of great power can be, in the deepest ways, asleep and very cut off from their capacity to act out of a higher good for all. In responding to this death and all its implications, I am reminding myself to be mindful of those parts of myself that can unthinkingly condemn the man rather than this actions. Antonin Scalia, in my perspective, was a tragic figure who lived without the experience of a deep and abiding connection with life and with his own heart, without the heartfelt understanding of the preciousness of all human beings and all beings, without the skillfulness and mindfulness of how to transform his fears and prejudices and projections and rigidity and wounds and limitations into something much greater, such as kindness and compassion, wisdom and love. And that is sad. And, for that, we can hold this human being with compassion. And with the recognition that no one causes the great harm that he did without first being deeply wounded themselves. The opportunity at hand, I believe, is to use this huge change as an opportunity to embrace with all the passion any of us can muster to be the peace our world and our nation and our own hearts so yearn for. This is my 2 cents worth. Bless us all. ~ Molly

U.S. Supreme Court justice Antonin Scalia in 2011. (Photo: Charles Rex Arbogast / AP)



Justice Antonin Scalia is dead, and his passing is nothing less than a legal and political earthquake. It will have a huge impact, not only on the court’s present term but on the course of constitutional law.

Beginning with his appointment to the high court in 1986, Scalia was the intellectual leader of what I and many other legal commentators have termed a conservative “judicial counterrevolution,” aimed at wresting control of the nation’s most powerful legal body from the legacy of the liberal jurists who rose to power in the 1950s and ’60s under the leadership of then-Chief Justice Earl Warren.

Scalia was a key architect of the jurisprudential theories of original intent and textualism, and the author of numerous landmark opinions. Among his most important rulings was the 5-4 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protected an individual’s right to bear arms.

But Scalia was also an unvarnished, intemperate and intolerant ideologue, railing against same-sex marriage, voting rights, Obamacare, affirmative action and other progressive causes. In recent years, often finding himself in dissent, he became unhinged at times, ridiculing his more moderate colleagues for engaging in what he called analytical “argle-bargle” and “interpretive jiggery pokery,” and for doling out legal benefits to allegedly undeserving litigants that he called “pure applesauce.”

The impact of Scalia’s death will be felt immediately in a number of pending high-profile cases, transforming anticipated 5-4 conservative rulings into 4-4 stalemates. Under the court’s rules, 4-4 decisions carry no precedential weight and leave intact the lower-court rulings under review.

This means that proponents of affirmative action (Fisher v. Texas), as well as public-employee unions (Friedrichs v. California Teachers Association), can expect constitutional reprieves, because the circuit court rulings issued in their favor will be allowed to stand. It also means that supporters of abortion rights (Whole Woman’s Health v. Hellerstedt) and immigration rights (United States v. Texas) will have an easier path toward overturning adverse lower-court decisions.

Scalia’s passing will also alter the prospects for overturning some of the court’s most conservative recent rulings—not only on the Second Amendment but on campaign finance, environmental regulation and the constitutionality of the death penalty, among others.

Politically, Scalia’s passing will unleash a pitched battle on two fronts: first, in the fight to name his successor, and second, as an issue in the upcoming presidential elections.

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