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In 2010, FantasySCOTUS hosted a feature that allowed our fans to predict who would replace Justice Stevens. The results: then-Solicitor General Kagan came in first place, followed by Judges Wood and Garland. No doubt, President Obama checked our site before officially nominating Kagan a few weeks later.

Now that the election is settled, and by all accounts the Senate will move forward on President-elect Trump’s first nomination to the Supreme Court, it is time to launch a new #FantasyJustice tournament by LexPredict. The rules are simple, select the Justice-to-be, and the latest date he or she is likely to be confirmed. You can only vote once, but encourage your friends and colleagues to participate. May the odds ever be in your favor.

 

One of the biggest heartbreaks of NFIB v. Sebelius was that the petitioners managed to convince Justice Kennedy that the ACA was a violation of the separation of powers. On the Roberts Court, persuading AMK on a separation-of-powers case was as good as winning. But, alas, the Chief Justice had other plans in mind. The same frustration plagued me with the Court’s 4-4 decision in United States v. Texas. The Lone Star State managed to persuade Kennedy, and Roberts that DAPA was unlawful. However, due to the untimely passing of Justice Scalia, we were once again one vote shy. I often wondered what Scalia would have done had he been able to participate in U.S. v. Texas. If I had to guess, he was responsible for adding the question presented about the Take Care Clause–this seems especially likely because of his 2012 dissent in Arizona v. United States, and the fact that no one (save the taciturn Justice Thomas) asked about the Take Care Clause during arguments.

To that end, my contribution to the 2015-2016 Cato Supreme Court Review imagines what could have been Justice Scalia’s concurring opinion in United States v. Texas. This counterfactual has Justice Scalia going further than the majority opinion (which found a procedural APA violation), and Justice Alito (who found a substantive APA violation) to conclude that DAPA is not consistent with the President’s duty to faithfully execute the laws.

Perhaps the best part of the piece is that Ilya Shapiro and his colleagues at Cato recreated the formatting of a SCOTUS opinion with a high degree of accuracy. If you look quickly, it appears like it came from a slip opinion! Enjoy.

I admit, attempting to mirror Justice Scalia’s tone and authority was daunting, and I’m sure I fell short, but I hope this provides some semblance of closure of the Term that could have been. For those interested, the final chapter of Unraveled provides an imagined opinion from Justice Scalia in Zubik v. Burwell. That dissent was easier to write, because I could cobble it together from the NFIB joint dissent and his King v. Burwell dissent. For that, though, you have to buy a copy of the book.

To round out this week of announcements, I will be publishing in the Cato Supreme Court Review an imagined opinion of what Justice Scalia would have written in U.S. v. Texas. Keeping with Cato’s tradition, I will not publish a draft before publication date on September 15 (this year Constitution Day falls on a Saturday). I will give you this tease from the introduction:

I write separately to address the “stark” constitutional questions that arise when the “Federal Government . . . does not want to enforce the immigration laws as written.” Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting). Historically, the Take Care Clause of the Constitution has been cited to bolster the executive’s power to act. However, here the problem is not of a “vigorous” and “energetic Executive,” The Federalist No. 70 (A. Hamilton), but of a passive one. Through DAPA, the Secretary of Homeland Security has suspended a law Congress refuses to change, in violation of the President’s duty of faithful execution.

After Justice Scalia’s passing, I assumed that I would be able to at last retire the long-running series of battles between Scalia and Posner, which finished at Round XXVI back in September of 2014. Once again, Judge Posner managed to prove me wrong.

In his contribution at Slate’s Breakfast Table, Posner took this posthumous swipe at Nino, albeit this time criticizing as “absurd” those who praised him–including Harvard Dean Martha Minow and Justice Kagan:

On a different subject, I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.

I’m speechless.

Adrian Vermeule, inspired by The History of England from the Accession of James the Second, stated it better than I ever could:

“From the malice of [Posner] the grave was no hiding place, and the house of mourning no sanctuary” — TB Macaulay. https://t.co/xRptjl7Etj

— Adrian Vermeule (@avermeule) June 25, 2016

I titled this post “The Final Round,” but knowing Posner, this is far from over. And now, Scalia won’t be able to reply.

One of my favorite Scaliaisms was his insistence on dissenting from any citations to legislative history. Even if the opinion was unanimous, you could expect a footnote that Nino did not concur with the reference to the Congressional Record. He insisted that this nudged his colleagues away from citing legislative history. With Scalia’s absence, this is no longer the case.

As I was reading the Court’s unanimous decision in United States v. Bryant, I jumped when I came across this sentence:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain).

I found myself thinking, who the hell cares what John McCain thought. Alas, there was no Scalia dissent to point out that what the Arizonan said on the Senate floor (not even a report!) is utterly and entirely irrelevant to statutory interpretation. Nor will there be going forward. To the extent that Scalia’s dissenting-practice nudged other Justices towards excluding legislative history (dubious), the Eight will now be emboldened to dive deeper into legislative history. His absence is already being felt in subtle ways.

I’ve checked other #SCOTUS decisions that cite the Congressional Record since Justice Scalia’s passing. Justice Thomas referenced it in the majority opinion in Nebraska v. Parker, but he was referring to citations in the Petitioners’s brief. RBG cited it in her concurring opinion in Spokeo and her dissent in Gobeille. So, if my research is correct, Bryant is the first unanimous Scalia-less majority decision that cites legislative history without a dissent.