Little noticed in all the golden jurisprudential nuggets of this past week is the purpose of a rather ballsy argument made on Day 3 of oral argument on the Obama health scam. The two main actors: Chief Justice Roberts and Justice Kennedy. The star: Anthony Kennedy. The argument: A Modest Proposal.
Here is the purpose of the most staggering argument made this week in the Supreme Court, in simplified form (documentation of our claim follows):
1. Obama health scam supporters are trying to intimidate the Justices at the Supreme Court. In particular they are targeting Chief Justice Roberts and threatening to politically assassinate him by utilizing Roberts’ promise to the Senate Judiciary committee to be a modest “umpire” if confirmed.
2. That wily bird, Justice Kennedy, provided the Chief Justice with a most cheeky and daring argument to claim that indeed he, the Chief Justice, is being most modest even as potentially he crafts and coordinates one of the most daring opinions in constitutional history since Chief Justice John Marshall in Marbury v. Madison.
In anticipation of an historical defeat Robert Shrum is screaming that the Supreme Court is “the Tea Party Supreme Court” (Associate Justice Antonin Scalia is scorned as “Injustice Antonin Scalia”).
At the DailyKooks Hopium hole the kooks think repeating “the radical Roberts Court” is the intimidating trick that will work (the DailyKooks Supreme Court “expert” is the Left Talker who endorsed Obama over Hillary because Obama was the “media darling” and this educated fool also wrote Obama would be another FDR!.)
It’s not just the DailyKooks and the Obama protecting strategists. Surprise!, it is also Big Media doing everything possible to intimidate Chief Justice Roberts in particular. Attorney Jeffrey Rosen was tasked by Politico to declare that this week was a “Moment of truth for Justice Roberts”:
“Before this week’s historic Supreme Court argument, conventional wisdom held that the court would uphold “Obamacare” — as its opponents call it — by a lopsided bipartisan margin. [snip]
If the court does, in fact, strike down the mandate by a 5-4 vote, conventional wisdom most likely will crystallize around a new narrative: The Supreme Court is all about politics. [snip]
There’s no question that the conservative justices on the Roberts court have political leeway to strike down Obamacare because of its current unpopularity. [snip]
When Chief Justice John Roberts began his tenure, he said he wanted to be remembered for presiding over a court that reached narrow unanimous opinions — transcending the partisan divisions that have polarized Washington in Congress and the executive branch.
So far, Roberts has had mixed success.
That’s what makes the health care cases a moment of truth for the chief justice. If Roberts presides over a court that strikes down health care reform by a 5-4 vote, his ambition of transcending politics on the Supreme Court will have to be judged a failure.
If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success.
Uniter or divider — the choice is his.”
So it’s vote the way I say or else you are a divider. It does not enter Rosen’s mind that perhaps Obama appointed Elena Kagen should have either recused herself or that she should vote to get rid of the Obama health scam and thereby prove she is not a political hack. And really, “uniter or divider”? Wasn’t it Obama who promised transparency on any health care reform? Wasn’t it Obama who promised eighty percent majorities in passing health care reform? Rosen ignores Obama’s lies and scribes intimidating hackery in support of Obama. But at Politico, Rosen is not alone.
Glenn Thrush has inherited the “Ben Smith JournoLister” chair at Politico. His article intimidating Chief Justice Roberts (and anyone who might vote to get rid of the Obama health scam) is called “Roberts Court On Trial”:
“John Roberts is having his Bush v. Gore moment.
If the wily chief justice felt squeamish about leading the Supreme Court into an election-year political maelstrom, that was nowhere on display Tuesday, when the Roberts-led conservative majority signaled its collective skepticism, even hostility, for President Barack Obama’s health care law.
If the Affordable Care Act goes down — especially if it suffers the same schismatic 5-to-4 blow sustained by the McCain-Feingold campaign finance law in the Citizens United case — critics will accuse the Roberts Court of rigging the game and covering their power play with constitutional doublespeak.
The critics aren’t even waiting for the third and final day of arguments before drawing their conclusions. Roberts’s grilling of administration officials Tuesday — and his willingness to take up polarizing immigration and affirmative action cases in an election year — has already invited comparisons to the late Chief Justice William Rehnquist, whose court decided the 2000 presidential election in favor of George W. Bush.
If the court again splits along a traditional conservative-liberal fault line, the health care debate will further erode the ideal of the court as an impartial arbiter and cast doubt on Roberts’s own idyllic description of his role as judicial “umpire” laid out during his 2005 confirmation hearings.”
Glenn Thrush is supposed to be a news guy not an opinion guy. The above excerpts from Thrush however indicate that he is in line to get a job at the Carney White House Press Circus.
Thrush searched his Rolodex in search of anyone and everyone to trash and intimidate Chief Justice Roberts. He starts with another Jeffrey, Toobin:
“Roberts isn’t a hypocrite. … His judicial worldview is so close to his political worldview, I think he honestly believes he’s an umpire — but this is an incredibly activist court, especially when — sorry, I mean if — it overturns health care.”
Norm Ornstein of the American Enterprise Institute, a frequent court critic, expressed the view of many liberals who think Roberts is, at his core, a partisan who works from a conclusion backwards: “If he’s the umpire, how come he always has a bat in his hand?”
The outcome of the health care case, Democrats and Republicans agree, will go a long way in defining a Roberts Court already ranked among the most conservative in recent history.
In a larger sense, the case is also a critical test of Roberts’s evolving role as the leader of his own court: In decades past, chief justices have labored mightily to secure something approaching consensus on major decisions. [snip]
But Harvard law professor Michael Klarman, who has written two histories of the high court, said the fact that the fight over the health care law is playing out according to the standard Republican vs. Democrat script — the same script as the 2000 election fight — has eroded the idea that the GOP-appointed court is rooted in restraint and precedent-based impartiality.
“The idea they are operating from precedent can’t pass the laugh test, especially after Bush v. Gore. The country is dividing along the same ideological and political lines this time, and so is the court,” Klarman said.”
So if all the Justices appointed by Democratic (or Dimocratic as in the case of Obama) presidents vote to uphold the law they are “rooted in restraint and precedent-based impartiality” but if the Republican appointed Justices disagree they are political animals desecrating the high court – according to Thrush’s attack piece.
Why is Politico doing a full court press attack on the Supreme Court and Chief Justice Roberts in particular? The only answer is shock. Obama supporters for years thought two things about the legal challenges to Obama’s health scam: (1) the suits opposing Obamacare were entirely without merit (“frivolous”); (2) at the final stop, the Supreme Court, Anthony Kennedy would join the majority and force John Roberts to possibly go along and uphold the scam. Then Tuesday came and the shocks followed as they listened.
“But he seemed less critical of the law than Kennedy, whom liberals predicted would be more open to the argument that the law is rooted in the Commerce Clause of the Constitution.
“Assume for the moment that [the health care law] is unprecedented. This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce,” Kennedy began, adding: “I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
Obama supporters thought that Justice Anthony Kennedy would be the one they would woo and win. Kennedy, they presumed, would be the blushing little girl they would get drunk then bed. Kennedy was that sweet old woman juror they would smile at and lightly flirt with to get their way. Kennedy was the ugly girl at the bar that with a few drinks, some time, some sweet words of praise, would surrender her belle chose to the rakes. But that shy sweet plain girl turned out to be the Wife of Bath.
Kennedy’s performance was shocking to those that thought the legal claims in opposition to Obama’s health scam were “frivolous”. These dolts watch MSNBC and thought it was impossible to stop the “big f*cking deal”. Many were like Chris Matthews: I’m pretty suprised to learn that the mandate might be unconstitutional.
But as can be read at that last link to Allahpundit, some on the right cannot believe they are seeing what they are seeing so they come up with their own version of “brilliant Obama”. The right wing version of “brilliant Obama” is that somehow Obama is so brilliant that he had his Solicitor General “throw the fight” at the court because Obama wants the court to throw out the health scam law for some three dimensional brilliant Obama chess playing. Rubbish.
Obama is a boob who thought the court would uphold his scam law, his badly written law. That’s why Obama wanted the court to rule in June of this year. Obama thought he could run on a popular law that the court would rule as constitutional this June. [For the record, Verrilli was not the worst performance by an Obama boob at the high court. That dubious distinction belongs to Elena Kagan who screwed up when arguing Citizens United and for banning books.]
Instead the law remains unpopular and the Supreme Court might, just might throw the whole crooked thing into the garbage bin. The right wing is often as bedazzled as the dumbest on the left with Obama. We think we are correct. Obama is a treacherous boob, who is capable of mucking up even the simplest of matters. If it wasn’t for Big Media protection Obama would be a house husband at the Rezko House while Michelle continued to engage in patient dumping schemes in Chicago.
In today’s article (Pelosi on ObamaCare: “We wrote our bill in a way that was constitutional”) the important Republican/conservative Allahpundit wittingly or unwittingly falls into the trap of Roberts intimidation:
“I think ultimately, rather than torpedo legislation this momentous on a 5-4 vote, he’ll err on the side of letting it stand if the opinion can be written narrowly enough to limit the decision to health insurance and nothing else. And once he makes that move, I think Roberts will join him for two reasons. One: I’m sure he’s sensitive to the grumbling about how divided and partisan the Court often seems, especially after he was confirmed promising to be a neutral “umpire.”
If anyone is throwing the fight it is Allahpundit by buying into the DailyKooks/Thrush intimidation of Roberts. While Roberts might join the majority to uphold the scam – that would only be a ploy to get to write the majority opinion and that would only be if Anthony Kennedy votes to uphold. But will Kennedy vote to uphold?
Allahpundit’s comrade, Ed Morrisey posts via Video: Why the White House should be afraid, very afraid, over the ObamaCare arguments this week:
Will Justice Kennedy vote to uphold (will Ted Kennedy attend the next Michelle Obama diet lecture?) the Obama health scam? The L.A. Times doesn’t think so because of the number, the targets, and types of questions Kennedy asked. Daniel Foster thinks it’s a goner too. The New York Times is busy whistling – through the graveyard – fingers crossed that what they heard this week is not what dear ol’ grandma Anthony Kennedy will really vote.
The Obama loving’ JournoListers believed their own phony nonsense. It was Rectal Myopia. What we urge the Allahpundits of the world to consider is that Justice Kennedy was not only asking questions this week, Justice Kennedy was engaged in something very usual and acknowledged by Supreme Court watchers: asking questions and making comments to influence his fellow Justices as to how they will vote.
Thus, Kennedy by positing that the most modest course for the high court if it strikes down the individual mandate provisions of the badly written law is to strike down the entire law rather than judicially legislate, – was verbalizing a legal brief for the Chief Justice to argue that a ruling striking down the entire Obama health scam law was the modest “umpire” thing to do. It’s a ballsy argument. You must have iron cojones to make this assertion but indeed that assertion was made. It was made by no longer “grandma” Kennedy:
“When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole.
We don’t want anyone to forget that as tough as Justice Kennedy was on Tuesday while discussing the mandate provisions, Justice Kennedy was even more brutal on the third day when Medicaid was on the menu, according to SCOTUSblog:
“Perhaps the most threatening point for the Solicitor General’s argument, and for the Medicaid expansion itself, was a comment by Justice Kennedy — whose vote, as is so often true with a divided Court, might be crucial. Kennedy picked up on one of the points in Clement’s brief, that onerous conditions imposed in a federal grant program raised the threat that the people of a state would not know whom they could hold accountable if a state disobeyed a condition and lost its federal funding for an important public program.
That gave Kennedy an opportunity to talk about one of his favorite subjects: how the citizenry can know whom to blame when something goes awry in government, when the lines get blurred. “Does federalism require,” Kennedy asked, “that there be a relatively clear line of accountability for political acts? Is that subsumed in the coercion test, or is that an independent one” Verrilli conceded that the coercion test was related to concerns about threats to federalism. Kennedy responded that it was “necessary for the idea of federalism that there be a clear line of accountability so the citizen knows it’s the federal or the state government should be held responsible for the program.”
The seeming significance of that exchange was that, if Kennedy were persuaded that the coercion theory was, indeed, a part of the accountability equation, then he might well embrace it. It was not a promising moment for Verrilli.“
One final point, and this one on Verrilli. It is agreed by most if not all that Verrilli stunk up the court this week. We don’t think that is particularly significant. It is Obama supporters trying to rationalize this week’s shocks at the high court by shooting the messenger. Again, here is SCOTUSblog (which supports the Obama health scam), on why not Verrilli but rather Kennedy will provide the rationale for whatever happens:
“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.”
Those that in 2008 thought Obama was the savior, the Mess-iah, are not exactly reassured by the mess Obama has made of their hope for change. This week Obama and his Hopium pickled kooks faced a death panel in black robes. As Charles Hurt wrote, it was a “Brutal week for Obama, the worst of his presidency”.
Hurt cites the hurts on Obama as his Trayvon Louis Gates moment, the hot microphone in South Korea displaying his treachery to come on missile defense, and “uniter” Obama getting a unanimous “NO” vote in the House of Representatives on his budget. Sneers Hurt: “Not that you will see any trace of embarrassment in the face of Mr. Obama. He has mastered the high political art of shamelessness, wearing it smugly and cockily. Kind of like a hoodie.”
Hurt does not mention that this week Big Pink stopped being a concern for a well known Republican writer as the realization dawns on Peggy Noonan: This Obama character seems increasingly dishonest and devious to me
It was a bad week for Obama because he and his scams are finally getting vetted. The ones doing the vetting on Obama scams are wearing black robes – or are those hoodies?