Ellis Washington
4-4 Tie deconstructs Supreme Court oligarchy
By Ellis Washington
February 17, 2016

A black drape has been placed on the chair of Justice Antonin Scalia (1936-2016)

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

~ Jefferson letter to Wm. Jarvis (1820)

Jordan Weissmann, a fine writer for Slate.com and Slate's senior business and economics correspondent, wrote a recent article regarding the negative impact of Scalia's death will have on the High Court titled, How Scalia's Death Affects This Term's Biggest Supreme Court Cases.

"Because of the death of Justice Antonin Scalia, the Supreme Court will likely be left with just eight justices for the rest of its term – four reliable liberals, three reliable conservatives, and one Anthony Kennedy, who leans to the right but has traditionally acted as the court's swing vote. Since Senate Republicans have already said they are not in any hurry to confirm a new justice so long as President Obama remains in office, we're probably about to witness a number of deeply important cases end in a 4-to-4 split this year," Weissmann wrote.

That last sentence is the crux of his argument and why President Barack Obama and the entire Democrat Socialist Party have since the death of Justice Scalia been obsessed about having the rare historical opportunity to not only replace a sitting Justice, but to replace an judicial enemy of the Progressive Living Constitution with an Evolution Activist Jurist in the mode of a Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan or Oliver Wendell Holmes (appointed by President Theodore Roosevelt: 1902-32).

"And what happens then? When a Supreme Court case winds up in a tie, the justices typically issue a short per curiam opinion upholding the decision of the lower appeals court. That means this term's heavily anticipated rulings on public sector unions and voting representation are likely to end in liberal victories by default. But there's a catch: Those lower court rulings won't apply outside of their own jurisdictions, meaning the issues could be litigated all over again in future cases brought elsewhere in the country," Weissmann argues. Nevertheless, could there be a silver lining for America, for We the People and constitutional jurisprudence with a 4-4 tie, with a divided, yea, deconstructed SCOTUS?

"Meanwhile, cases on immigration and abortion rights are still sitting in Kennedy's hands and thus could still result in at least temporary conservative victories. Finally, affirmative action as we know it could meet its end with a 4-3 decision." As I pondered the question above think about this renegade Court, this unconstitutional oligarchy which has decimated America's culture, society, morality, and history by it's willful, renegade conduct dating back to the Dred Scot v. Sanford (1854) decision that upheld the constitutionality of slavery, thus lighting the fuse of the Civil War (1861-65) – America's most bloodiest war which had higher causalities than all of our other wars combined – 1.5 million deaths.

Weissmann then presents a short synopsis of cases on the 2016 SCOTUS docket and how Scalia's untimely death will (or won't) affect them:

Case: Zubik v. Burwell

Issue: Obamacare's contraception mandate

Outcome in a split: The law will be different depending where you live in the country.

In a 4-4 spilt on SCOTUS Obamacare's contraception mandate (the foundation of socialized healthcare) would be different depending on the state you live in. Recall that in 2014 SCOTUS ruled in the first Hobby Lobby case that private businesses could be excused from the Affordable Care Act's rules necessitating employer-based health plans to pay for birth control on condition that their owners had "deep religious convictions." Following that decision, the Obama administration mandated an "accommodation," which fundamentally let those companies claiming a religious exemption, free from the birth control mandate, however they still had to provide their employees with free contraception.

Not satisfied with this anti-Christian mandate from the Obama administration, many religiously allied nonprofits joined in a class action suit once more, essentially contending that the Court's original compromise is insufficient. Despite the fact that the majority of courts have ruled against them, the Petitioners won a victory at the U.S. Court of Appeals for the 8th Circuit. Therefore, a 4-4 tie by SCOTUS resolves nothing, and the law will be disjointed from one judicial district to another judicial district. In other words, the law will be different depending where you live in the country.

Case: Fisher v. Texas

Issue: Affirmative action

Outcome in a split: There won't be a split.

Plaintiff Abigail Fisher sued the University of Texas at Austin regarding its affirmative action policy after her application was denied, claiming that the school violated the Constitution's Equal Protection Clause by considering race in admissions. Here, Scalia was a likely vote to end racial preferences, nevertheless his death is less important in this case because Justice Elena Kagan has recused herself from the suit. (She has a conflict of interest since when the Obama administration filed a friend-of-the-court brief in the case, Kagan was the Solicitor General.)

The usual swing vote, Justice Kennedy (a Reagan appointee), has sent mixed signals on how he may rule on this case. On the one hand, he's has a judicial aversion to affirmative action demonstrated two years ago where he wrote the decision sending Fisher back to the lower court for an additional rigorous review. However, in the last oral argument on this case, Kennedy mostly protested that the latest description of the case lacked any new evidences, therefore how Kennedy will rule is difficult to determine.

Case: Whole Woman's Health v. Hellerstedt

Issue: Abortion

Outcome in a split: Conservatives win.

This landmark reproductive rights case the plaintiffs are challenging a Texas law that, as Sarah Kliff of Vox notes, has required half the state's abortion clinics to close since 2013 by mandating them to get admitting privileges at local hospitals. If the court of appeals stands, half the all abortion clinics in Texas would be forced to close, and a legal paradigm would be set for additional pro-life state legislatures to limit abortion admission. It is well-known that Scalia was a pro-life champion. However, in a 4-4 tie, the case would possibly remain a conservative win because the Texas jurisdiction is controlled by the U.S. Court of Appeals for the 5th Circuit. This result assumes swing vote Kennedy sides with the conservative wing of the Court.

Hands up don't abort!

Case: U.S. v. Texas

Issue: Whether states can challenge federal immigration policy

Outcome in a split: Conservatives win.

President Obama delivered a contentious executive order in November 2014 permitting certain undocumented immigrants to apply for temporary legal status if they had children who were citizens or green-card holders. However, 26 states including Texas sued to block the action, and a federal appeals court place a hold on the policy until the litigation worked its way through the courts. SCOTUS was tasked to resolve whether states even have the right to sue over the issue, therefore a 4-4 non-decision would have the effect that the lower court decision stands.

Case: Evenwel v. Abbott

Issue: One-person, one-vote

Outcome in a split: Liberals win.

This case concerns the state power for the majority to re-write (gerrymandering) their legislative districts usually to favor the state majority power. Because in America there currently exists 31 Republicans Governors, 18 Democrats Governors, and 1 Independent Governor controlling the states, SCOTUS was set to radically restrict the means that state legislative districts are drawn.

Under the principle of one-person, one-vote, states have conventionally carved up legislative districts that correspond to the entire populations. In Evenwel, the plaintiffs argued that districts should be based on the total number of potential voters. That would exclude minors, unnaturalized immigrants, and felons who had been stripped of their voting rights from the calculation (gerrymandering), having the effect of shifting the process in favor of greatly enhancing Democrat Party voters. The lower court, ruled it was OK for states to continue using total population paradigm. However, Justice Scalia's death will likely precipitate a 4-4 split, thus allowing the decision by the appellate court to stand.

Case: Friedrichs v. California Teachers Association

Issue: Public sector union rights

Outcome in a split: The liberals win.

As a doctrinaire originalist jurist Justice Scalia had no countenance for the constitutionality of American labor unions, therefore the pending case regarding public sector union rights, Friedrichs v. California Teachers Association, the Court is considering whether all union member can be forced under "fair share" laws to pay fees to unions (dominated by the Democrat Socialist Party), in order to cover the cost of collective bargaining on their behalf, even if they're not members (e.g., Republicans, Moderates, and Independents)? In effect mandatory union dues = Democrat Socialist Party slush fund. Taxation without representation.

A decision against the teachers' unions would basically extend right-to-work laws to government employees across the nation and significantly cut into public-sector union revenue, thus decimating a long-standing political funding source by the Democrats based on thievery and coercion through dues confiscation. And as of oral arguments, Scalia's vote would have tipped the balance against union hegemony, however, with the mysterious sudden death Scalia and the fact he is no longer on the court, the decision by the U.S. Court of Appeals for the 9th Circuit, will most like still stand.

Is SCOTUS the most powerful of the 3 Branches?

In an essay I wrote in Jan. 2014, Do you know your Constitution, Part 2, I quoted Hillsdale President and scholar of American History: DR. ARNN: "There's a lot of confusion these days about the relationship of the three branches of government – especially among many who are in government. Some think the judiciary sits atop the other two branches – the legislative and the executive. Others think the president sits above Congress and the courts. In fact, all three branches are equally accountable to the Constitution, and therefore to the people who made the Constitution. The president, members of Congress, and federal judges all take an oath to the Constitution. In making the laws, Congress must adhere to the Constitution. In executing the laws, the president must abide by the Constitution. In interpreting the laws, judges are bound by the Constitution. All the people's representatives are accountable to the Constitution, and therein lies our liberty."

Constitutionally speaking it is both misleading and wrong to ask the question: Which is the most powerful branch of government? Because the original intent of the constitutional Framers placed enumerated powers in each branch that were in their sole domain and from which the other two branches held no power or sovereignty outside the blackletter text of the constitution. However, an existential constitutional crises is precipitated when one branch of government bleeds over into the others' domain.

The most infamous example of this is Chief Justice John Marshall's majority opinion in Marbury v. Madison (1803) which created a new doctrine called judicial review whereby the Supreme Court out of whole cloth claimed for itself "the province and the duty... to say what the law is" and made the judiciary, originally the weakest of the three branches of government. 17 years after the Marbury case, Jefferson was still so outraged at the tyranny of the judicial oligarchy that he expressed to his friend William Jarvis in 1820: "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

Indeed, many legal scholars (including myself), consider this judicial tyranny by Chief Justice John Marshall in Marbury v. Madison to be essentially the Garden of Eden where the Rule of Law and Separations of Powers began to fall along with the collapse of our federalist system of government.


Der Mensch denkt, Gott lenkt. (Man proposes, God disposes).

~ German Proverb

Justice Scalia, in addition to being a strict constructionist, originalist and textualist, was perhaps the most loquacious member of SCOTUS. During oral arguments when the Court would send rapid fire questions to litigants, one of his more famous quotes concerned how Lady Justice (who is symbolized as blind to partisan issues), is according to Scalia not really blind – but peeking, playing favorites – according to his Progressive jurist colleagues:
    "But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed ('penalty' means tax, 'further [Medicaid] payments to the State' means only incremental Medicaid payments to the State, 'established by the State' means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

Veritas et Justitia: Truth and Justice. Lady Justice peeking, bronze sculpture created in 2007 by Audrey Flack

How can We the People and Congress bring SCOTUS back to the U.S. Constitution, back to the Rule of Law since Congress is too cowardly and ignorant to use the impeachment powers found in Article 1, Section 2, Clause 5? Answer: For the next 2-3 years keep SCOTUS at an even number of Justices since there is no provision in the U.S. Constitution that mandates a precise number of Justices on SCOTUS only that the President proposes (nominates) and Congress possess (appoints). This will reign in some of the judicial tyranny by SCOTUS and deconstruct their unjust and tyrannical power over We the People and the Court's treasonous stranglehold over the U.S. Constitution.

Under a President Trump administration on Day One Inauguration Day – January 20, 2017, President Trump should unseal Barack Obama's records (which Obama promptly sealed by his first Executive Order No. 13489 – Aug. 15, 2009). If proven ineligible to hold the office of POTUS then all legislation and all appointments including those judges on the US Supreme Court would be null and void. Unseal the current administration's POTUS records sealed on day one and when found to be ineligible, every Obama executive order, policy and appointee would be rendered null and void by law.

Under his constitutional executive powers President Trump could then appoint real Natural Law constitutionalists to SCOTUS to replace all the anti-constitutionalist Socialist Justices Obama nominated like Sonia Sotomayor (2009) and Elena Kagan (2010) and the dozens of federal judges Obama's appointed all over America. This check and balance would then truly be the first step to reestablishing the Rule of Law in America ... and to indeed "Make America Great Again."

Book Notice

Please purchase my latest opus dedicated to that Conservative Colossus, Supreme Court Justice Clarence Thomas. Here are the latest two new volumes from my ongoing historical series – THE PROGRESSIVE REVOLUTION: History of Liberal Fascism through the Ages (University Press of America, 2015):
However, before the book is officially released to the public, I have to place 100 pre-publication orders (50 orders per each volume). I need your help to make this happen ASAP. Please place your order today for Volume 3 & Volume 4. Of course, if you can order all 100 copies today, the book will become official tomorrow.

Please circulate this flyer to all your email contacts & Facebook/Twitter followers who may be interested in purchasing this opus which will serve as a ready apologetic against the rampant Marxist-Progressive propaganda taught in America's public schools, colleges, universities, graduate schools, and law schools. Thanks in advance to all my friends, associates and colleagues for your invaluable support! Law and History Blog: www.EllisWashingtonReport.com

Invitation for manuscripts

I am starting a new a program on my blog dedicated to giving young conservatives (ages 14-35) a regular place to display and publish their ideas called Socrates Corner. If you know of any young person who wants to publish their ideas on any subject, have them send their essay manuscripts to my email at ewashington@wnd.com.

© Ellis Washington


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Ellis Washington

Ellis Washington is a former staff editor of the Michigan Law Review (1989) and law clerk at the Rutherford Institute (1992). Currently he is an adjunct professor of law at the National Paralegal College and the graduate school, National Jurisprudence University, where he teaches Constitutional Law, Legal Ethics, American History, Administrative Law, Criminal Procedure, Contracts, Real Property, and Advanced Legal Writing, among many other subjects... (more)


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