"So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion etc.," von Spakovsky said, according to audio posted by Right Wing Watch. "I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted."
Von Spakovsky is a former Bush administration official known for stoking unfounded fears of widespread voter fraud. He served in the Justice Department under former President George W. Bush, but his appointment to the Federal elections Commission was derailed by Senate Democrats in 2008.
He gave the example of Friedrichs v. California Teachers Association, a case challenging teacher's unions ability to charge non-members "agency fees," which are used to fund collective bargaining for employees.
"That case was argued on January 11, so they know how Justice Scalia cast his vote in that case and I think the chief justice should give credit to it," von Spakovsky said.
He is not alone in this theory. Arizona attorney Kory Langhofer on Sunday argued that Scalia's preliminary votes in cases already heard by the Supreme Court should count.