The Last Decision of the Supreme Court

When Associate Justice Antonin Scalia died, everyone knew it would be a battle to nominate someone to replace him. They expected President Obama to nominate a liberal justice who would meet significant resistance from the Republican-led Senate. People thought Obama would then follow with a more moderate nominee and the Republicans would capitulate and narrowly accept the nomination. No one thought that three years after Scalia’s death, the Supreme Court would also be dead.
Scalia’s death was not expected. There were three older justices on the Court.  He looked to be in good health; nevertheless, immediately after his death each party began to maneuver for an advantage.
The very next day Obama promised he would nominate someone in a few weeks. Within hours, the Senate Majority Leader Mitch McConnell announced there will be neither a vote nor hearings until after the election.  Although McConnell’s rhetoric was unsurprising, it was unnecessary. The Republicans could have said nothing and just allowed the nomination to stall.
The presidential election moved forward. There were some interesting primary vote outcomes, but in the end it was Donald Trump vs. Hillary Clinton. Trump selected Mark Cuban as his running mate, claiming he liked his entrepreneurial spirit, his enthusiasm, and most importantly his participation on the CNBC show Shark Tank. Trump said, “Mark Cuban is the type of person that ‘Tells it like it is’ and goes on to own whatever he says rather than shrinking away and apologizing whenever the mainstream media attacks him. I see a lot of myself in him.” Journalists wonder if Trump sees ‘starring in a reality show’ as a requirement to be part of his administration.
Years later journalists, academics, and analysts are still pondering how Trump won.
Immediately following the election, the Senate Democrats declared they would not allow any person nominated by Trump to receive a vote. There would be filibuster after filibuster. The Senate Republicans threatened to invoke the ‘Nuclear Option’ and end the filibuster once and for all.
A week after inauguration, Trump nominated Judith Sheindlin to replace Scalia. That’s right, Judge Judy. Trump declared, “She is the type of person that ‘Tells it like it is’ and goes on to own whatever she says rather than shrinking away and apologizing whenever the mainstream media attacks her. I see a lot of myself in her. And she’s from Brooklyn! She’s tough.”
The worst fears have come true; participation in a reality TV show puts you first on the A-list for jobs in the Trump Administration. Charles Krauthammer thanked God Howard Cosell was dead. Cosell originated ‘Tell it like it is’ and he grew up in Brooklyn.  Trump would have made Cosell the Secretary of State.”
The nominees of the Cabinet are horrendous. Just one example, Kim Kardashian is named Secretary of the Interior.  Misinterpreting Interior for Interior Design, she spent all her time redecorating the federal buildings. She started with the Lincoln Monument and hired Banksy to add some color to the statue of Lincoln.
The Democrats cannot stop laughing at Trump’s choice to replace Scalia. The Republicans refuse to fight for the nominee.  The Democrats do not have to filibuster to stop the nomination.
Trump responded, “Screw all of you.”
Fortunately US citizens received a valuable civics lesson on the Supreme Court and its history. They learn that the original court had only SIX justices. The Founding Fathers wanted a two-thirds majority (at least 4-2) for the Court to override congressional legislation or decisions affecting the States. The court grew over time due to the expansion of the Circuit Courts that expanded as the nation expanded. It reached TEN justices during the civil war. But was reduced to the current NINE justices in 1869.
The Court spends the next year unable to issue a decision of any significance. The tally for every major decision was a 4-4 tie. There was not much change in 2018, as Trump refused to name another nominee.
Justices Stephen Breyer and Anthony Kennedy were vacationing together in Minnesota during the Christmas holidays and both died while ice fishing. As they hauled in a yuge (sic) fish, the ice collapsed beneath them and both died from drowning. (The Oxford English Dictionary added the word YUGE in 2016 based on the constant usage by Trump and Bernie Sanders.  Its definition is “something much larger than HUGE.”)
Trump is unmoved by their deaths and does not nominate anyone else to fill the now three vacant seats.
The justices are still deadlocked (3-3) and the Supreme Court is unable to issue any significant decisions.
And then, on March 15, 2019, while celebrating her 86th birthday, Justice Ruth Bader Ginsburg dies. And with her death, so died the Supreme Court. Again, the US citizens received a valuable civics lesson. The Supreme Court can only meet when there is a quorum. When there were six justices, a quorum was four. Today a quorum requires six justices.
The third branch of government is now gone. The US is now unchecked and unbalanced.
Political historians are now blaming Ed Meese for this predicament. Back in 1985 Meese laid out in his speech before the American Bar Association, of reshaping the Court around one coherent jurisprudence of original intention. He started the politicization of the Supreme Court. What neither Republicans nor Democrats could achieve through the ballot box could be achieved by stacking the Court with political puppets. And both parties are guilty.
The constitutional check on President Trump is absent. Trump requested a new census (before the decennial) in 2019 claiming the Constitution was approved in 1789 and the Census has been one year late ever since. The Census shows that there are 270 electoral votes in the Manhattan Trump Tower alone. Accordingly, he is re-elected in 2020 winning 270 electoral votes.
Just my opinion. I may be wrong.

Election Prediction (N=2)

Associate Justice Antonin Scalia is found dead Saturday morning in Texas. Before his body is cold, President Obama announces he will nominate someone soon. Senate Majority Leader Mitch McConnell says the nomination should be left to the next president.

The nomination will be a bruising fight and will undoubtedly have implications for the presidential primaries and general election.

President Obama recognizes the difficulty he will have nominating a liberal judge. He also recognizes that the two leading candidates to represent the Democrat party may have significant problems winning the election against the remaining Republican candidates. Knowing his legacy as president depends on winning a third term through a Democrat successor, he therefore embarks on the following political strategy.

Obama nominates Al Gore for the position of Associate Supreme Court Justice saying, “It’s only fair since the Supreme Court stole the presidency from Gore. It’s payback time.” The conservative wing of the Republican Party is apoplectic.

Ted Cruz, while being interviewed live on Fox News, has a seizure while discussing someone like Gore on the Supreme Court.

The news coverage of the nomination dwarfs the candidates’ campaigns for President. No one is gaining traction in the primaries. As the Supreme Court concludes its last decision on June 30, 2016 (most decisions being tied 4-4), Obama announces that for the sake of the Union he is withdrawing Gore as the nominee. On July 4th, Obama announces he will nominate himself for the position, following Taft from White House to the high court. As soon as he is confirmed, he promises to step down as President and Joe Biden will take his place. Simultaneously, Joe Biden announces he will also run for president representing the Democrat Party.

Ted Cruz, while being interviewed live on Fox News, has a grand mal seizure while discussing someone like Obama on the Supreme Court.

Republicans in the Senate are caught flat-footed and they are unable to stop Obama’s self nomination. As one of the youngest justices on the court he will be able to continue his liberal agenda well past the end of his presidency. At the Democratic National Convention, Sanders and Clinton are unable to stop the Biden wave. All the super delegates choose Biden in the first ballot and no candidate wins a majority. On the second ballot Sanders and Clinton release their delegates to vote for Biden, who selects Michelle Obama as his running mate.

Ted Cruz, while being interviewed live on Fox News, has a stroke while discussing someone like Michelle Obama as Vice President.

Biden, running as a sitting president, wins easily.

While being interviewed live on Fox News, Ted Cruz’s head explodes.

This is just my opinion. I may be wrong.

Election Prediction (N = 1)

My expected outcome from the election is more from my heart than my head. I am part sentimentalist, part strict constructionist, and part anarchist.

First, the sentimentalist

Hillary Clinton wins the Democratic nomination and chooses Tipper Gore as her running mate.

Her national campaign slogan is, “It’s the Women’s Turn Now.” She runs on the plank that if elected President she will tirelessly help “women who have been assaulted or sexually groped in public.” She runs TV commercials in swing states showing Tipper Gore being manhandled by Al Gore at the 2000 Democratic National Convention. Most voters either did not watch the convention, or do not remember Al Gore and think the event happened last week.

Debbie Wasserman Schultz retains her position as DNC chair as she can show savings exceeding $100 million simply by reusing the Clinton-Gore bumper stickers and lawn signs from the 1992 and 1996 campaigns.

Hillary Clinton, through the Clinton Foundation, negotiates a deal with MSNBC allowing Rachel Maddow to retain her one-hour show, and for the remaining 23 hours of air time, MSNBC replays the I Love Lucy episode, “Job Switching.” The Foundation buys the rights to the episode and places it in the public domain, reducing MSNBC’s costs to almost zero.

This episode is considered one of the best from the series. In it, Lucy and Ethel take jobs at a chocolate factory. Small chocolates emerge from a machine on a conveyor belt and must be dipped in liquid chocolate. The speed of the conveyor belt increases, causing mayhem. No one can stop laughing. Meanwhile, Ricky and Fred are at home wearing aprons, doing the laundry and cooking. While ironing, they burn holes through the clothes and the kitchen becomes a mess.

MSNBC viewership finally reaches six digits for 23 hours each day; however, Rachel Maddow falls to last place of all cable news shows.  It appears MSNBC viewers use her time slot for their bathroom breaks. MSNBC is profitable for the first time since its inception. The FEC rules the Lucy episode is not a violation of any campaign-finance laws or equal time requirements, as the program is in the public domain.

Polls show Hillary Clinton slightly ahead after four weeks of this barrage.

After a bruising Republican convention, Marco Rubio wins the nomination. Lacking the financing and infrastructure to win the general election, he chooses Jeb Bush as his running mate. Jeb Bush accepts realizing it would be better to follow the path his father took to become President (VP first) than the path his brother took. Since both Rubio and Bush are from Florida, this has the making of a constitutional disaster. Let’s hope so.

I am not going to describe the details of the campaigns; not a pretty sight. The FCC forces the campaigns to issue letter warnings on all TV commercials so children are spared seeing the horrors.

Meanwhile, back in Washington, D.C., on Election Day and completely ignored by the media, Vice President Biden and Supreme Court Justice Kennedy join a group of Revenant re-enactors and head out to a remote area of Appalachia. They are not heard from again.

And now, the strict constructionist

The election results are in.  Rubio has 269 electoral votes and Clinton 268. How? It doesn’t matter. Say one district in Maine is tied.¹  Or that same Maine district votes for a third party.  (Perot, seeing Obama has won twice feels large ears are now a plus for a candidate and runs a third-party campaign that wins this one electoral vote) Again, it doesn’t matter how. What’s important is that no one obtains the minimum 270 to win.

(My fallback position is that Rubio wins in electoral votes, but the Florida electors are prohibited by the Constitution from also electing Bush as VP. This is not as much fun as the scenario I am going with. But it would also be a hoot.)²

The country must now be spoon-fed a civics lesson on how the Constitution prescribes a winner when no candidate has a majority from the electoral college.

The House of Representatives is asked to determine the President. The current members of the House (2015-2016 term) caucus within each state.³  Each state has one vote. Even though some state delegations have equal representation and cannot agree on one candidate, enough Republican-majority states vote in Rubio and he is declared President. The Clinton Foundation makes a valiant lobbying effort promising to put all Dukes of Hazzard reruns in the public domain if Republicans vote for Hillary, but that effort fails.

And finally, the anarchist

The Senate is now asked to determine who will be Vice President. The new members of the Senate (2017-2018 term) each have one vote. The 2016 election resulted in a net gain of four seats for the Democrats.  The Senate is deadlocked.

The potential tiebreaker, VP Biden, cannot be found.  Jeb Bush files suit against his opponent, Tipper Gore. The case is labeled Bush v. Gore. The media panic. What should it call this lawsuit so as to distinguish it from the previous Bush v. Gore lawsuit? Oh, the humanity. Scholars are brought in to deal with the ensuing “Labeling Crisis.”

First there were two George Bushes. George Herbert Walker Bush v. George Walker Bush; Bush I v. Bush II; Bush 41 v. Bush 43; and Bush v. W.

Then there were ISIS, ISIL, Islamic State, and Daesh.

Now we have two Bush v. Gore lawsuits. Will it be Bush v. Gore I and II? Or Bush v. Gore 2000 and 2016? Scientists are brought in to clone William Safire to write a New York Times editorial to determine the appropriate label. MSNBC provides 24-hour coverage of the cloning process. Although it is just test tubes under incubating lights, their viewership is the highest ever.

The lawsuit is immediately moved to the Supreme Court. The court is split along party lines 4-4.  The potential tiebreaker, Kennedy, cannot be found.

Again, this is just my opinion. I may be wrong.

¹ Maine and Nebraska are not “winner take all” states, rather one Elector is chosen from each congressional district and two Electors are chosen from the statewide vote totals. 

² Electors cannot vote for a President and Vice President from the state they represent.  Therefore, Florida electors would be unable to vote for Rubio and Bush for those two positions.  From the 12th Amendment: “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves”

³ Whether or not the current House and Senate or newly elected House and Senate vote is not exactly set in stone. The only time something like this has happened since the adoption of the 12th Amendment is 1824, when neither J.Q. Adams or Andrew Jackson obtained a majority of Electoral Votes. At that time, the lame-duck congress stayed in session until early March, and they voted Adams President in early February. Today, the new congress is sworn in on January 3rd (20th Amendment), just two weeks after the Electoral College officially votes.  That would leave the lame-duck chambers two weeks to vote on the new President and Vice President. The Senate requires a two-thirds quorum to vote, and the Democrats (currently in the Senate minority) could take a two-week vacation to Hawaii. In 1824 at the end of the Era of Good Feelings and one party rule, both Adams and Jackson accepted Calhoun as their Vice President, so the Senate never needed to vote. The Republican House just requires a quorum of a single representative from each state with half the states represented, and would probably be able to quickly pick the next President despite Democratic opposition. It would be the constitutional crisis of the century.  It would be every bit as messy as 2000, except this time it would be in the hands of congress.