Supreme Court Might Decide Their Second Election

It was a similar crew of conservative justices on the Supreme Court that decided that their long-held beliefs on states' rights were irrelevant and made George W. Bush our next president in 2000. Now, they're back!!! And they might decide yet another presidential election.

 

It was a similar crew of conservative justices on the Supreme Court that decided that their long-held beliefs on states' rights were irrelevant and made George W. Bush our next president in 2000. Now, they're back!!! And they might decide yet another presidential election.

Imagine the damage it does to President Obama to strip him of his signature accomplishment right before the election. It would also allow the Republicans to say -- "See, we told you so! It was unconstitutional all along. It was a wild, socialist over-reach of big government." It creates a permanent stain on the law -- as if there was something horribly wrong with it all along. And it takes it off the books at a moment when it is still relatively unpopular. So, before any of the popular provisions are put into effect it would go in the record books as a complete disaster.

Why don't you just hand the Republicans the election? Which is, of course, exactly what the conservatives of this court would love to do. These conservative justices are given far too much deference in the media. They are largely partisan hacks.

Antonin Scalia is a complete fraud. He will bend any so-called principle to get to the political result he wants. If it's upholding anti-gay legislation or striking down federal laws he doesn't like, he is a huge advocate for states' rights. But if it's marijuana legalization or euthanasia orBush v. Gore, then he hates states' rights. So, which one is it? Here's how you can tell -- which side is the Republican Party on?

Remember, this is a guy who goes duck hunting with Dick Cheney and attends political fundraisers with the Koch brothers. Of course, he doesn't recuse himself from any cases that involve those people. In fact, he votes on their side nearly 100% of the time.

We've been hearing for at least thirty years about the dangers of activist judges. That it is so wrong for unelected officials, like judges, to invalidate laws made by the people's representatives. Now, all of a sudden, the Republicans love that idea! They want to interpret the Commerce Clause in a way that it has not been interpreted since 1937. They want to invalidate a sitting president's signature piece of legislation for the first time in 75 years. And their hack, partisan justices on the Supreme Court can't wait to do their bidding.

The way Scalia, Alito and Thomas are going to vote is certain. There isn't a single Republican position those guys haven't wanted to fondle. They will enthusiastically wrap their legs around the idea that the mandate is unconstitutional. And they will double down by saying it strikes down the rest of the law with it.

John Roberts plays a moderate on TV, so there is some questions about which way he'll go. But in the real world, he always votes with the conservatives because... he is deeply conservative (or more accurately, party line Republican, no matter where the so-called conservative position lies).

So, that leaves us with Justice Kennedy, who is a genuine swing vote. But remember he is the one that swung toward Bush and meddled with how Florida counts its votes despite decades of empty talk about states' rights. If he sides with the rest of the conservative justices, he will forever cement his place on the Hack Hall of Fame as one of the most deeply partisan justices we have ever had. If he helped to decide two presidential elections based on which party he likes rather than his so-called deeply held beliefs, like his oft-repeated deference to precedent, than it would be hard to find a more political and disingenuous justice.

One last thought, which is on the sad incompetence of the Democratic Party. They should be screaming "activist judges" from the rooftops. Instead they are meekly mumbling about how it's unclear which way the court is going to go and how we shouldn't pre-judge. I got news for you -- the Republicans have been pre-judging your bill for years now. You should consider fighting back.

But the primary responsibility is the president's. Why did you agree to the Republican idea of mandates in the first place?

Orrin Hatch (R-UT) was the original sponsor of the mandate in the Senate back in 1993.The Heritage Foundation championed the idea. Mitt Romney was applauded wildly by conservatives when he passed a mandate in Massachusetts. Did the president think they would like him more if he agreed to their idea? No, they have always opposed you at every turn, and they always will. They turned on their own idea the minute you agreed to it -- and now they're using it to kill your whole bill.

When is the president ever going to learn that agreeing with Republicans never helps him? It never helps the country. All it does is make it easier for them to beat you because you made the fatal mistake of agreeing with them.

 

SG Verrilli's Horrible Opening Arguments

Solicitor General Verrilli began his opening arguments in defense of the Affordable Care Act, as many commentators have noted, like a nerd asking the “hot girl” out on a date. In other words, it was awful. For one of the most important court cases in modern history, and perhaps one to join other notable decisions like Roe V. Wade, and the Scopes Monkey Trial, and many others, this is the one time in your life where you make sure you’re prepared and confident. Unfortunately, Verrilli seemed wholly ill-equipped. I guess I can understand there’d be some nerves arguing in front of the Supreme Court, but with Verrilli’s background and judicial history, you wouldn’t think it’d be this bad. One big rule to remember: practice on video and review. Tape yourself and watch the video. Find your weaknesses in the speech, rework them, edit them, and do it again. And if you’re still not comfortable with your performance, you need to rehearse it again. Luckily for Verrilli, he had the Liberal Justices on the Court there to back him up, and they questioned Paul Clement and the States position with as much harshness as the Conservative Justices had gone after Verrilli. With one more day of arguments still to come, we don’t know exactly how poorly Verrilli’s performance will weigh on the outcome of the decision. He didn’t totally blow it, but he didn’t give the President much to cheer about.

 

 

SG Verrilli's Horrible Opening Arguments

Solicitor General Verrilli began his opening arguments in defense of the Affordable Care Act, as many commentators have noted, like a nerd asking the “hot girl” out on a date. In other words, it was awful. For one of the most important court cases in modern history, and perhaps one to join other notable decisions like Roe V. Wade, and the Scopes Monkey Trial, and many others, this is the one time in your life where you make sure you’re prepared and confident. Unfortunately, Verrilli seemed wholly ill-equipped. I guess I can understand there’d be some nerves arguing in front of the Supreme Court, but with Verrilli’s background and judicial history, you wouldn’t think it’d be this bad. One big rule to remember: practice on video and review. Tape yourself and watch the video. Find your weaknesses in the speech, rework them, edit them, and do it again. And if you’re still not comfortable with your performance, you need to rehearse it again. Luckily for Verrilli, he had the Liberal Justices on the Court there to back him up, and they questioned Paul Clement and the States position with as much harshness as the Conservative Justices had gone after Verrilli. With one more day of arguments still to come, we don’t know exactly how poorly Verrilli’s performance will weigh on the outcome of the decision. He didn’t totally blow it, but he didn’t give the President much to cheer about.

 

 

SCOTUS arguments recap - Day two

After initial arguments yesterday, the Supreme Court today slogged headlong into the meat of the arguments for and against the Affordable Care Act mandate (transcript and full audio via NPR).

Nothing new here but specific presentation, and maybe the political optics outside the court.  Politico has a recap of the 7 key points, including the "Brocolli Argument":

SCALIA: “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

VERRILLI: “No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can't pay for it.”

Challengers are already cheering the demise of the mandate, and SCOTUSblog's Lyle Denniston confirms this is going to be Justice Kennedy's case to call.  But where Kennedy is may be up in the air (emphasis mine):

“So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems.  That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation.  Kennedy interrupted to that that he agreed “that’s what’s happening here.”  But then he went on, and suggested that he had seen what Breyer had been talking about.   “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case.”

More interesting, was yesterday a setup? As David Dayden has pointed out: yesterday every Justice agreeing a mandate was not a tax under Anti-Injunction, today Obama's SG arguing it's just like a tax to Congress.

And the politics around of it all.  Roll Call has 5 races where health care will matter either way, and why Democrats will make this about RyanCare. Senate Republicans are squealing tires in reverse, hoping everyone forgets "Replace" is a word. For Obama, it could be win-win.  Mandate struck down, Republicans lose a major rallying point for the general election, Democrats may gain one (Activist judges!).  Robert Reich sees Obama positioned well for Medicare for All if the Affordable Care Act unravels.  And somewhere, Lil' Ricky and the Newt are firing up the attack ads on Romney.

Tomorrow's arguments: Mandate "what-ifs" and the Medicaid expansion

 

Honoring Justice

On March 1st, I had the honor of speaking at the memorial service for civil rights hero and respected jurist Judge Robert L. Carter. These were my reflections:

I had the privilege of serving as Judge Carter’s Law Clerk in 1989. But years before that, I was sure that I wanted to know this man, and to be known by him.

During college, I worked as an intern at the American Civil Liberties Union, and I was assigned to assist Dr. Kenneth Clark in fashioning a school desegregation remedy for, of all places, Topeka, Kansas—which had yet to fully desegregate. Dr. Clark had me read Richard Kluger’s book, Simple Justice, chronicling the road to Brown v. Board of Education.

On page 271, I met a man who Kluger described as “a limber, quiet, and strongly self-disciplined black lawyer named Robert Lee Carter, who came to the [NAACP] Legal Defense Fund after a stormy career in the Air Force.” I was intrigued.

“Carter’s insistence that black officers were entitlted to every privilege that white officers enjoyed,” Kluger wrote, “got him branded a troublemaker and almost tossed out of the service altogether, until Bill Hastie intervened with Washington’s higher-ups.” I had to know more.

I read in Simple Justice, and in other places, that, working with Dr. Clark, Judge Carter had crafted the complex mixture of law, history, and social science that won the day in the Brown case.

I read that the Judge had argued 22 cases in the U.S. Supreme Court and won 21 of those cases.

And I read that when a threatening white sheriff, backed by an armed mob, had mockingly called the Judge by his first name, young Bob Carter replied with a line worthy of Sidney Poitier or Clint Eastwood: “Only my best friends call me by my first name, and I don’t think I know you that well.”

The Sheriff, by the way, was the notorious Cecil Price of Philadelphia, Mississippi, who was later convicted on charges stemming from the murders of 3 civil rights workers there. When Sheriff Price told the Judge “that’s how we do it down here,” the Judge Responded by calling the Sheriff “Cecil.”

This was someone I had to meet.

And then there was the swimming pool story. Though many of you have heard it before, I think it bears infinite repeating.

As a teenager, the Judge’s family moved to East Orange, New Jersey, not far from where my family and I live now. East Orange High was not officially segregated, but black students were intentionally isolated and made to feel unwelcome.

The school had an excellent swimming team, and learning to swim was part of the white student’s phys ed requirement. But black students were allowed to use the pool only at the close of school, on alternate Fridays—after which it was drained, cleaned, and refilled, as the Judge says in his own book, “to protect the white children from contamination the blacks might have left in the pool.”

In 1933, at age 16, young Bob Carter read in the newspaper of the New Jersey Supreme Court’s ruling that all public school facilities available to white children in the state had to be equally available to black children. So the next time the white boys headed off to the pool, Bob Carter joined them.

His stunned teacher threatened him with expulsion. It will not surprise any of you to learn that this did not work. The teacher pleaded with him. Those of us who served as the Judge’s law clerks, or appeared in his courtroom, are aware that this was a particularly ineffective approach.

So young Bob got into the pool. But none of the white kids would get in with him. And none of the other black kids would get in with him. And Bob did not know how to swim, because, of course, he’d been excluded from the swimming lessons the white kids had had.

So week after week until graduation, this 16 year old would get into the pool, by himself, and cling to the side of the pool for dear life until the end of the period.

I later came to work for the Judge, to learn from him, to love and respect him—to bring him breakfast every other morning for a year (something they don’t tell you when you apply for a clerkship)—and to see his fearsome intellect and presence in the Courtroom.

But when I think of him now, I will always think of that 16 year old. Clinging to the side of the pool. Clinging to Justice and Equality, and Basic Human Dignity for all of us—as he did throughout his long life.

Thank you, Judge Carter. And Godspeed.

 

 

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