Despite Being Dead, Neo Conservatives Still Think Scalia Should Decide Cases Where Oral Arguments Were Heard Already

Happy to repeat if you’re as flabbergasted as I am, but yes, you heard correctly: Prominent conservatives think Antonin Scalia – the Supreme Court Justice who has now been dead for nearly two weeks – should be allowed to vote on Supreme Court cases from beyond the grave.

Hans Von Spakovsky, a senior fellow at the conservative Heritage Foundation and a former official inside the Bush administration, argued that Scalia’s votes on some pending cases should be counted, as regrettably reported by Right Wing Watch.

The conservative legal activist said Scalia had already heard oral arguments in some cases before the court, including the upcoming Friedrichs v California Teachers Association, the likes of which could significantly impact public sector unions.

“After oral arguments before the court, the justices leave the courtroom and they go to a conference room in the Supreme Court building and they take a vote,” von Spakovsky said during the Feb. 15 interview. “So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion and et cetera,” von Spakovsky continued. “I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted.”

Von Spakovsky is, of course, conveniently leaving out the reality that justices often do change their minds after voting in those conferences upon further deliberation, as made most recently evident when John Roberts upheld the Affordable Care Act.

You would generally think that a simple “dead people can’t vote” logic would be sufficient for why replacing Scalia is imperative to the continuity of the Supreme Court, but if it isn’t, this factual historic frequency in supreme court justice voting records should be sufficient.

One would think. One would hope.

In Spakovsky’s case, it is particularly delicious given his tenure in the Bush Administration as being one of the greatest promoters of the myth of widespread Democratic voter fraud, which in turn has then been cited as credible evidence for constitutional violations to the Voting Rights Act.

Just for fun, here’s a clip of the old bat ranting about Scalia’s death jeopardizing gun rights.