Conservatives want to count Justice Scalia’s vote in upcoming SCOTUS case, even though he’s dead

Some Republicans are hellbent on blocking President Obama from appointing a new Justice to replace Antonin Scalia. Senators have pledged to do everything in their power to block any of the liberal candidates that Obama may pick but what if that wasn’t necessary?

What if, at least until Obama’s term ended, there was a way to let Scalia cast his votes from beyond the grave?

Over the weekend, Arizona attorney Kory Langhofer made an impassioned argument to KPNX’s Sunday Square Off that, at least for oral arguments that Scalia had already heard, the Court could reasonably make an educated guess about how the deceased Justice would have voted.

“There’s no ouija board required to figure out how Justice Scalia would vote in these things, he’s already voted,” Langhofer explained. “We know exactly what he thought and it’s not unprincipled to say we should give effect to that.”

Langhofer sort of has a point. He reasons that because the Supreme Court hears oral arguments and casts preliminary votes before penning an official decision, Scalia effectively telegraphed how he would have felt about a case had he lived.

Last week, Heritage Foundation fellow Hans von Spakovsky made a similar argument for Scalia’s post-mortem presence in an interview with American Family Radio.

“I think the Chief Justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided,” von Spakovsky said. “Even if he didn’t write his opinion yet, because they know how he would have voted.”

According to the Supreme Court’s doctor, Rear Adm. Brian P. Monahan, Scalia’s death did not exactly come as a great surprise. The 79-year-old Justice suffered from enough “significant medical conditions” that Monahan didn’t consider performing an autopsy to be necessary. We will never know if Scalia foresaw his impending death coming so swiftly or whether his opinions would have changed following oral arguments but…the living Justices could ask him.

If not with a ouija board, then at least through a medium.