Feb. 18, 2016 - Freedomain Radio - Stefan Molyneux
33:10
3205 The Death of Supreme Court Justice Antonin Scalia | True News
Antonin Scalia was appointed to the Supreme Court by President Ronald Reagan, and was the longest-serving justice on the court, having taken his seat on Sept. 26, 1986. Justice Scalia is famous for his application of constitutional originalism and opposition to “legislating from the bench.”"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted." – Judge Antonin ScaliaJustice Scalia was discovered dead on February 13th, 2016 in Texas - and conspiracy theories spread as many pondered the massive impact his absence could have on the future United States. What kind of impact will this have on upcoming Supreme Court cases? Will President Barack Obama b able to appoint a new Supreme Court Justice in the remainder of his presidential term? This presidential election just became more consequential – as now it’s a fight for the soul of America.Freedomain Radio is 100% funded by viewers like you. Please support the show by signing up for a monthly subscription or making a one time donation at: http://www.freedomainradio.com/donate
And as the 79-year-old heart ends, so may endeth the republic.
Hello, everybody.
This is Stefan Molyneux from Freedom Aid Radio.
I hope you're doing well.
Well, with the death of Antonin Scalia, so enter into what is possibly the most contentious presidential race, at least in American history, the possibility of a new and vote-tipping from left-to-right Supreme Court justice that may be nominated, may be appointed, and certainly the possibility of a new and vote-tipping from left-to-right Supreme Court justice that may be nominated, may be appointed, and certainly will be fought over prior to or post-election, depending on
depending on how the Republicans work it and whether they're willing to give the Democrats, as usual, everything that the Democrats want or whether or not spying from Trump will help them stay up.
So, for those who don't know, Antonin Scalia died recently because he was appointed to the Supreme Court by President Ronald Reagan and was the longest serving justice on the court, having taken his seat on September the 26th, 1986, For those who want to know just how long ago that was, I was 20.
Now, judges, Supreme Court justices in America, are appointed.
They're not elected.
Relatively unaccountable, and they get paid regardless of whether or not they retire, as a way, I guess, of helping them avoid...
Financial temptations and bribery and so on.
Now, Justice Scalia is, or I suppose was, famous for his application of what's called constitutional originalism.
As he said, quote, The Constitution that I interpret and apply is not living, but dead.
Or, as I prefer to call it, enduring.
It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.
So this is the original meaning of the Constitution, is what Justice Scalia was interested in.
And for those who don't really know what this means, let me give you a little scenario.
You have a job.
You make $40,000 a year.
Someone across the street offers you a job, says they'll pay you $50,000 a year.
You sign the contract.
You quit your $40,000 a year job, toodle on over the street, and go to the $50,000 a year job, at which point you find out that you're only going to get paid $30,000.
And you say, what happened?
And they say, no, no, no, man.
We're not originalists.
It's a living document, you know?
Like, we're not making as much money as we thought, so things are kind of changed, so sorry.
But, you know, hey, this is our new interpretation of what...
No, no.
The original intent is what things are supposed to be bound by.
You don't get a 5 gig a month cell phone plan and then get charged $1,000 for 1 gig's use because you have a contract that is supposed to make future decisions comprehensible and predictable.
And so...
Originalism is designed for that.
And originalism is considered to be a conservative doctrine because on the left, the radical activists have generally failed to make their case to the American public in a way that would have the American public vote the way of the radical leftists.
So after, say, the radical leftists were found to be hiding and colluding the mass murdering crimes of a whole bunch of atheist communists, such as Chairman Mao and Joseph Stalin, And after they'd infiltrated the State Department, lost China to Russia and screwed up most of the Cold War politics, the average Christian American is not a big fan of the left.
And so they couldn't make the case to the American public.
And so what they did was they wormed the way into the judiciary and tried to get activist judges to impose upon Americans what Americans would never choose according to democratic principles.
So that's why He was considered to be conservative or, with regards to the Constitution, accurate.
And so conservatives, Republicans as a whole, they want to have issues that the folks can vote on, not to unelected, unaccountable judges who serve for life.
Of course, this policy was put in place, put in place when life expectancy was, I don't know, 30, 40 years old, maybe 50 if you were getting particularly lung in the tooth, but not, you know, the Methuselah-style longevity that we currently enjoy.
So this originalist position opposes what's called legislating from the bench, which is to not create laws, not create policies, not enact new government policies from the bench.
So Justice Scalia and the other originalists say that judging should be a politically neutral act.
And if judging is politically neutral, it means that if you want to make significant changes to the way of life in the United States, you actually have to pass laws and constitutional amendments to, say, bring in Obamacare and things like that.
So this idea of not Making laws for the judges is pretty foundational and very much more accepted on the right, who want to follow the will of the folk, rather than on the left, who want to impose it from above, old-style philosopher king with a gun that you would get out of Plato's Republic.
Now, the problem, of course, with having a constitution that can be interpreted on the fly with whatever you want is that you're actually just imposing rules from above on people who don't want those rules because you're not relying on their votes.
But you can cover yourself, wrap yourself up in the constitution, and it brings legitimacy.
And...
What happens?
You've got nine Supreme Court justices, and a lot of times, you know, it's five-four right down party lines, you know, Democrats versus Republicans, liberals and conservatives, leftists and rightists.
And that should tell you something about the law as a whole, at least the law since the government became its gargantuan-sized, right-stomping behemoth that it's become.
Because the law should be relatively simple to interpret.
You know, when I was a kid growing up, good old Anglo-Saxon common law, ignorance of the law was no excuse because it kind of boiled down to two things.
Number one, do not initiate force against other people.
Number two, keep your word.
And that's criminal law and contract law.
And that was about it.
So if you could figure those two things out, which most of us had by the age of two or three, then you could obey the law.
But when you get a law so complicated that people who've been steeped in the law for many decades, studied it for many decades, still can't agree on a more than five to four combination, well, you've got something that's way out of control.
You don't go to physicists and say, okay, I've got nine physicists in a room, tell me how the solar system works, and you get a 5-4 decision for heliocentric versus Ptolemaic.
No.
You don't say, hey, tell me what's the basic idea behind the theory of relativity?
And they don't come up with a whole bunch of different answers.
So we are in the realm of radical relativism, if not downright nihilism, when it comes to the hyper-complexity, the brain labyrinth of modern Western law.
Now, critics have attacked both Scalia and originalism, noting, quote, if he had had his way, same-sex marriage would still be illegal in much of the country.
Key provisions of the Affordable Care Act, Obamacare, would be discarded as unconstitutional.
Women would have no right to procure an abortion, and affirmative action would be effectively illegal.
Well, I don't know that it would be effectively illegal.
If you want to go and hire a bunch of minorities, nobody's going to stop you.
If you want to start a college and hire and bring in only minority students, no one's going to stop you.
But forcing people to hire less qualified or to bring less qualified people into schools and businesses based upon their race, well, that would be Prejudicial.
That would be bigoted.
So these things, right, the Constitution doesn't really say much about abortion or gay rights or anything like that.
And what that means is that because it's not in the Constitution, what it should be is voted on by the people, right?
That's sort of the basic idea of democracy, which the Founding Fathers were highly suspicious of, but which nonetheless is, as Churchill said, the worst system in the world, except for all the others that have been tried.
So If it's not in the Constitution, people are supposed to vote on it.
Leftists can't win that vote, and so they go for judicial activism.
Scalia was a charming, erudite, good public speaker, apparently a great jurist, not that I'm a legal expert who knows these things, but I'll buy what the people who know tell me.
And his dissents are legendary in legal circles.
And although, you know, the standard people apply labels and think they've won an argument, liberal progressives say, oh, he's extremely conservative, but that's not true.
Necessarily the case he had, what could charitably be called a comprehensive legal philosophy, and he actually did uphold the legality of things that he fiercely disagreed with, such as flag burning, which he hated but defended the legality of, independent of his own personal viewpoint.
How does the Republic die?
Well, Scalia was found dead in his room at the luxury hunting resort Cibola Creek Ranch in Marfa, Texas, by the resort's owner, John Poindexter, who said, The judge, when I found him Saturday morning, was in complete repose.
We discovered the judge in bed, a pillow over his head.
His bedclothes were unwrinkled.
He was very peaceful in the bed.
He had obviously passed away with no difficulty at all in the middle of the night.
This fellow, Poindexter, he's a taxless millionaire, businessman, and a donor to the Democrat Party.
He has also previously received an award from Barack Obama related to his, Poindexter's not Obama's of course, military service in Vietnam.
So it's a bad place to die or to get ill.
Of course, you're in an isolated ranch, there's no cell phone service, and there are some strange ways of declaring death, which we'll talk about later.
Right now, Presidio County Sheriff Danny Dominguez called Presidio County Judge Cinderella Guevara, which sounds like a bedtime story for Cuban revolutionaries, to report the death.
Quote, he says, Judge, I'm at Cibolo Creek Ranch and a Supreme Court justice has just passed away and I need someone here immediately.
Both justices of the peace are out of town at this time.
I said, Sheriff, what did you say?
Which Supreme Court justice died at Cibolo Creek Ranch?
And the phone went dead because our connection was very bad.
Sorry, it's Texas.
Cell phone service, fairly spotty in far west Texas.
There's no cell phone service at all at the ranch.
So this conversation continues.
He called me back and he gave me a few more sentences until it broke up again.
And that's how the conversation went for 20 minutes.
And this is how things end.
Not with a bang, but a...
So Judge Guevara pronounced Justice Scalia dead over the phone At 1.52pm on Saturday, and after Sheriff Danny Dominguez concluded that there were no signs of foul play, also deciding against ordering an autopsy.
Now, originally, Judge Cinderella Guevara diagnosed myocardial infarction, or a heart attack, via telephone as the cause of death.
Now, you might find this a little strange.
I guess twofold.
Number one, this is a judge.
Number one, not a doctor.
Perhaps the judge had just finished delivering a baby in the courtroom prior to walking and extracting someone's molar in chambers.
Number one, not a doctor.
Number two, by phone.
You can determine cause of death by phone.
Maybe you send your consciousness through the wires in remote view through the receiver.
I'm not sure.
Maybe it is...
No, it can't really be a cell phone because they've got no cell phone reception there.
Can't even get video.
Now, the judge did later walk back the statement about a heart attack, noting that she would confer with the justice's personal physician on what specifically to show as the cause of death.
Apparently, they've just given up looking at bodies.
They're just going to talk to other people to try and figure out what someone died of.
Now, Scalia's physician later noted that he had several chronic medical conditions and had gone to the doctors last week for a shoulder problem.
I can only imagine that the shoulder problem that he went for, the doctor said, hey, you know what's a great cure for that?
Go hunting.
Because, you know, how could that hurt your shoulder?
Now, in an interview with the Washington Post, Guevara has said that she rebutted reports that Scalia had died of myocardial infarction.
She said she meant only that his heart had stopped.
Now, I'm neither a judge nor a doctor, but I'm willing to go on record to say that hours after he was dead, His heart had stopped.
I'm willing to go with that.
Guevara said, It wasn't a heart attack.
He died of natural causes, said the judge, who never saw him.
That's just amazing.
And look, the guy's 79 years old.
You know, people who think he died of something other than canola and obesity, I think are barking up the wrong tree, but...
So, Judge Guevara never saw the body, but this is permissible under Texas law.
Hey, you know what's funny?
You know what else is legal under Texas law or illegal?
So, first of all, it is illegal to milk another person's cow, you vampire!
Homosexual behavior is a misdemeanor offense, so no twerking to ABBA in obscenely tight jeans.
Did you know that in Texas the entire Encyclopedia Britannica is banned because it contains a formula for making beer at home?
So you can buy a 3D printer to print a gun, but you can't get an Encyclopedia Britannica because you might figure out how to Up to a felony charge in Texas can be levied for promoting the use of or owning more than six dildos.
I can only really guess What the charge is for using all six dildos at the same time, I'm guessing that the jury would just give you a slow clap as you John Wayne'd your way out of the courtroom.
It is illegal in Texas for one to shoot a buffalo from the second story of a hotel.
So listen, Texans, no native-style hunting of buffalo.
It is illegal to take more than three sips of beer at a time in Texas while standing.
Keep that in mind, people.
A recently passed anti-crime law in Texas requires criminals to give their victims 24 hours notice, either orally or in writing, and to explain the nature of the crime to be committed.
This is also known as announcing, say, that Hillary Clinton will be Secretary of State.
So these are just some of the Texas roundups of laws.
Including, you can pronounce, people dead and the cause of death of that of receiving their body.
Now, within a few short hours, Scalia's body was transported to a funeral home.
It was embalmed and is now on its way to Virginia.
Now, embalming is required by Texas law before a body can be transported out of state.
But, of course, embalming has also eliminated the possibility of a future autopsy.
This is striking some people in law enforcement as, what is it that my girlfriend said when I was in my teens?
A tad premature.
Retired deputy chief and former head of criminal investigations for the DC police, Bill Ritchie.
You have a Supreme Court Justice who died, not in attendance of a physician.
You have a non-homicide-trained U.S. Marshal tell the Justice of Peace that no foul play was observed.
You have a Justice of the Peace pronounce death while not being on the scene and without any medical training opining that the Justice died of a heart attack.
What medical proof exists of a myocardial infarction?
Why not a cerebral hemorrhage?
Exactly.
He went on to say, how in the world can that Texas judge, not even seeing the body, say that this is a heart attack?
A U.S. Marshal can't tell you.
You need a medical professional.
If this was Joe Blow, you'd say, okay, 79 years of age, health problems, maybe natural causes.
But this is a sitting justice of the Supreme Court.
I used to be an instructor in the homicide school.
Every death investigation you are handling, you consider it a homicide until the investigation proves otherwise.
Or I guess until the judge with interrupting cell phone services tells you.
Retired Brooklyn homicide detective Patricia Tufo It's not unreasonable to ask for an autopsy in this case, particularly knowing who he is.
He's not at home, there are no witnesses to his death, and there was no reported explanation for why a pillow is over his head, so I think, under the circumstances, it's not unreasonable to request an autopsy.
Despite the fact that he has pre-existing ailments and the fact that he is almost 80 years old, you want to be sure.
that it's not something other than natural causes.
So, it should be noted, to be fair, that Scalia's family did not request an autopsy.
So, weigh that in the balance if you dare.
So, what happens now?
How do you get a new Supreme Court Justice?
Yeah, be happy you don't have to research this, people.
Get to sit back, brush Cheetos off your boobs, and enjoy this video.
Just before we start, you know, I think it's kind of a cheat.
You know, when priests call themselves Father and judges call themselves Your Honor or Justice, you know, Justice Scalia.
It's kind of priming the pump for how, hey, he's involved with Justice.
He's a just guy.
But look at his first name.
It's Justice.
So, okay, now everyone on the internet must refer to me as Honest Best Philosopher Steph.
Head.
Okay, fine.
So, with that out of the way, let's continue.
So, While vacancies have rarely arisen in presidential election years, there has been one presidential election year confirmation in the modern era, that of Justice Anthony Kennedy in February.
1988.
The seat was vacant for seven months before the Senate confirmed his successor.
This was not the longest Supreme Court vacancy in the modern era.
That was 363 days after Justice Fortas stepped down in May 1969 and the Senate rejected President Nixon's first two nominees.
So, some people are saying, well, it's been 80 years since a lame-duck president.
President in the last term has appointed a Supreme Court justice.
There's some question about that, but you could argue it's been a while.
Now, unless the Republican majority does what they always seem to do, and just give President Obama what he wants...
Control of the High Court is now essentially on the ballot in November.
Now, President Obama announced Justice Scalia's death without even wearing a tie and announced his intentions to replace the justice pretty much before the body was even cold.
I'm pretty sure the cell phone conversation had third-party entry from Barack Obama on that Texas mountaintop or whatever.
Can I appoint someone now?
Can I do that now?
I'm in!
I'm in!
So these are the steps for appointing a new Supreme Court Justice.
Numero uno.
Obama makes a nomination.
Simple enough.
Number two.
Senate Judiciary Committee, where the Republicans currently hold an 11-9 majority, would hold confirmation hearings.
And then vote on whether to send the selection for a full Senate vote.
There's a couple of barriers to get through here.
Number three, in the Senate, Republicans hold a 54 to 46 majority, and a simple majority vote is required to confirm or to reject a nominee.
But a successful filibuster threat could add the requirement of a supermajority of 60 needed for confirmation.
So filibusters have already been threatened, and Majority Leader Mitch McConnell...
Made it clear that, quote, this vacancy should not be filled until we have a new president.
And since, of course, Republicans are hoping to take the White House later this year, that would stand to gain them.
Now, the U.S. Senate is currently in recess.
Something about running for office for some people.
Not sure exactly.
Now, the president could make a recess appointment until Monday morning, February 22nd, 2016.
According to the following Dungeons& Dragons law, quote, So if a Supreme Court justice is installed by Obama through a recess appointment, he or she could serve only through the end of the next session of Congress at the end of 2017 at the latest.
But boy, just think what a highly liberal judge, what damage they might be able to do in just about two years.
Now, although a recess appointment could be Obama's only real opportunity to get a liberal justice on the bench, the White House claims such action will not be taken.
You know, like how you can keep your doctor and your premiums are going to decline under Obamacare, so get ready!
Now, Scalia's death means that the Supreme Court now has three conservative justices.
Chief Justice John Roberts...
Well, except for Obamacare, which isn't a minor detour, Samuel Alito and Clarence Thomas, and four consistently liberal justices, Stephen Breyer, Ruth Bader Ginsburg, Eleanor Kagan and Sonia Sotomayor.
Justice Anthony Kennedy, a little bit more of a wild card.
So, you know, my particular tip from north of the border here to the Republicans, hey, get that Senate out of recess, Republicans!
I don't care what you have to do.
Vote on I Like Ties Day.
Vote on International Title Day.
It doesn't really matter.
Just get the Senate out of recess.
So what happens if it takes a wee while for a new Supreme Court Justice to be accepted?
Well...
In the case of a deadlocked Supreme Court, the decisions made by the lower courts will stay in effect, but they are open to future challenges.
The alternative for the even-numbered court, where the conservative bloc no longer has this clear edge, would be to rehear a current-term case once a ninth justice is appointed.
Now, there are several crucial cases upcoming, which of course makes Justice Scalia's death all the more selfish.
Let's start with one of the most important, Fisher v.
University of Texas at Austin.
A white applicant to the University of Texas claims that the school's admission policies were discriminatory and favored minorities with lesser qualifications, which led to her being rejected.
Now, Scalia generally voted to strike down laws that made distinctions by race, gender, or sexual orientation, and was expected to side with Fisher.
However, despite Scalia's absence, the case may still be decided in favor of the petitioner.
As the more liberal justice Kagan has recused herself of some conflict of interest, meaning that there is the possibility of a 4-3 vote against the university's admission policies.
Just for those who don't know, a lot of universities will artificially inflate the scores of blacks and artificially reduce the scores of Asians in order to get a student body that accurately reflects the The demographics of the surrounding area, despite the fact that blacks score worse on general admissions to college exams than whites do, and Asians score better than whites, so they have to even this out.
Otherwise, it might be, what's the legal term?
Fair.
Second case, Friedrichs v.
California Teachers Association.
We just talked to these fine people.
Link is below.
This is a challenge to the legality of public unions collecting mandatory fair share collective bargaining union dues from non-union employees.
So this case was headed for an almost certain 5-4 decision in favor of the petition of Friedrichs, but...
Without Scalia, a 4-4 tie from the court, should it even publicly announce a decision, would uphold a lower court's affirmation of public union practices.
And these guys wanted the lower courts to affirm it so they could get to the Supreme Court.
With Scalia gone, it might bounce back down, which is, of course, the opposite of what they want.
Number three, Whole Women's Health versus Hellerstedt.
So judges were set to hear arguments on March 2nd for what has been described as the most important reproductive rights case before the court in more than two decades.
This case centers around a challenge to a 2013 Texas state law that, petitioners say, would mean the closure Of about 75% of the state's abortion clinics.
The law established some restrictions on doctors and abortion facilities in the state of Texas.
The restrictions were that doctors had to get admitting rights to hospitals within 30 miles of the clinic and put some restrictions on the RU-486 abortion, what's being called the abortion pill.
So that is...
Still, I guess, in limbo, in stasis until this is going to be sorted out.
The court's decision would address whether the law places an undue burden on women who seek abortions.
The case seems headed for a 4-4 tie, barring support for the petitioners from Justice Kennedy.
So, Zubik versus Burwell.
So these petitioners claim they have moral objections to birth control coverage in health insurance that they provide their employees and claim the arrangement represents indirect participation in the provision of contraceptives and they are calling for exclusions to the law.
The federal government says these employers have workers who do not share The same religious beliefs and would thus be harmed by exclusions.
Unless the case is reheard once a new ninth judge is in place, without Scalia a 4-4 tie is likely.
And if they prevail, then this idea that you can lump everything into insurance plans for the benefit of Minorities of people might be, you know, could men opt out of plans that have birth control?
Could older people opt out of plans that have in vitro fertilization funding and so on?
All interesting questions.
United States versus Texas.
This April, the Supreme Court is set to hear a case concerning President Obama's executive order that would shield more than four million illegal immigrants from deportation, allowing them to work indefinitely and legally In the United States.
Lower courts ruled against the proposal, and without a ninth justice, a 4-4 tie temporarily upholding the lower court's ruling is something, I would say, to be reasonably expected.
So.
Now, even though the Republicans enjoy a majority in both chambers of Congress, It's not as much of a sure thing in the Senate because there are about a dozen rhinos, stands for Republicans in name only, not so many dinos around, lots of rhinos.
There are about 10 of whom voted to confirm Barack Hussein Obama's major choice as Attorney General Loretta Lynch.
So it's not for absolute certain that there's a Republican majority in the Senate because you've got what the Republicans, well, at least some Republicans outside the Senate refer to as Benedict Arnold Wieselbeck turncoats.
They might actually go that way.
However, I think it would be political suicide for anyone to end up voting for Obama's nomination.
You know, he nominates someone in their 40s.
This could be something that America has to live with for the next 40 years.
And a radical left-wing activist judge on the Supreme Court tipping the favor for leftists would erase the existing concept of America very, very quickly.
So it is A very, very significant thing, and of course most Republicans are hoping that the party is going to push back on nominations so they can get one of their guys in there.
So the system as a whole, obviously, 79-year-old heart stops beating and the whole republic is thrown into chaos.
This idea that you use the Constitution as a cover for whatever the hell you want to do is pretty gross.
The Constitution was set up to say, here are the basic principles that define the country.
Everything that's not discussed in here needs to go through the process of democracy and Congress proposing and passing laws and so on.
And this has been completely bypassed with this judicial principle.
Activism.
You know, if you think of gay marriage positively or negatively, abortion positively or negatively, it's not in the Constitution.
So the voters are supposed to decide what happens.
And if liberals were comfortable with, say, reason and evidence, they'd put the case to the folks.
The folks would vote one way or the other.
But they're saying they mistrust the folks.
That's when the left...
People on the left consistently mistrust the folks and want this philosopher-king dictatorship set up, Plato-style, communist-style, because people are not to be trusted to decide for themselves what's good or bad for them.
They must be ordered from above.
So, yeah, rest in peace, Justice Scalia.
It's always sad to see a great mind leave the world, even if the mind is enmeshed in a system that I have some significant issues with.
So...
Let's just take this moment to think about what this means for the system as a whole.
The entire future of a culture resting on the final heartbeat of a 79-year-old guy, out of shape, health issues, fat or at least obese or overweight, this is not a very good system.
This is not a very good system.
I kind of liked the Supreme Court for the first, say, 200 years when it was a boring, dusty institution where people took naps because they weren't going to be disturbed by the thunderclap of anything even remotely important happening in the room.
I liked it when it was boring.
Now that government has become this giant monolith that can order the very atoms around on Venus...
Of course now it has become life and death.
Who ends up in the Supreme Court?
But this life and death moment in the Republic is because of the growth of government power.
If the government was small, restrained, or in my ideal case...
A footnote in history, then we wouldn't worry about an old guy dying.
But right now, the old guy dying, he might take the flag, the republic, and the hopes of dreams of millions of freedom lovers into the grave with him.
And that is the kind of brinksmanship that does not speak fantastically well of a well-adapted and highly evolved system.
This is Stefan Molyneux of Free Domain Radio.
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