With no apparent sarcasm, an Arizona attorney on Sunday proposed that the late Justice Antonin Scalia’s votes in cases pending before the Supreme Court should still count even though he died before the court issued its rulings.
“There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted,” attorney Kory Langhofer said during a discussion on Phoenix, Arizona, television station KPNX. “We’re at the second-to-last step in how these cases unfold when Justice Scalia died.”
Langhofer explained that the justices have already heard some cases, discussed them and taken an initial vote. He said that Scalia may have even written a draft opinion before he passed away.
“We know exactly what he thought. And it’s not unprincipled to say we should give affect to that,” he said.
Langhofer then compared the situation to the death of a senator after a close vote.
“Think about it in the legislative context. If you had the closest vote possible — 50-50 senators, evenly divided, the Vice President casts the decisive vote,” he said. “Before the President signs it, if one of the senators dies, what do you do? It’s the same thing here.”
Another Arizona attorney on the panel, Thomas Ryan, thought Langhofer’s proposal was a little far-fetched.
“That’s an interesting theory,” he said. “Justices, after they do the conferences can also change their minds.”
“The general rule is: dead justices don’t vote,” Ryan added. “I mean, that sounds cruel, but that’s it.”
Langhofer did not back down, however.
“Don’t you think that’s incredibly speculative though?” he asked Ryan. “They virtually never change their minds. It almost never happens.”
Ryan ultimately called Langhofer’s theory “problematic.”
“If they come out with a decision, and they say this is the way Scalia voted or he would have signed off on this opinion, there will always be some doubt or question as to whether or not that really was the case,” he said.
Langhofer is a prominent election law attorney in Arizona who has said he’s “no fan of government.” He rose to prominence when he was appointed as the special counsel in an ethics case against a state senator who was accused of domestic violence, according to the Arizona Capital Times. He then served in the U.S. Attorney’s office and worked as a lawyer for Mitt Romney’s 2012 campaign.
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