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gavel and stethoscope on flag with law books
One man now basically holds the fate of the New Deal in his deciding hand: Justice Anthony Kennedy. That's because the one hope court watchers, and the Department of Justice, had been holding out—judicial consistency from Justice Antonin Scalia—has been dashed.

Many analysts have pointed to Scalia's concurrence on the 6-3 Gonzales v. Raich decision, in which Scalia endorsed the broad authority of the federal government to regulate interstate economic activities under the Constitution’s Commerce Clause. With Raich, the court decided that Congress had the authority, under its power to regulate interstate commerce, to prohibit a licensed medical marijuana patient from growing on his or her property, even if that cultivation was legal under state law. The case was decided largely on the precedent of Wickard v. Filburn, a 1942 case in which the court ruled that a farmer's wheat crop fell under federal production quotas, even though much of the crop was consumed on his own farm. That ruling cemented the government's power to regulate interstate commerce.

In his concurrence on Raich, Scalia cited Wickard, and argued:

[...] that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
In a new book, however, Scalia appears to be ready to make an about face, not even respecting his own, personal stare decisis, and overturn the Affordable Care Act. In the new book, he:
[...] concedes that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here” in the health care ruling, the Times reports. He notes that while precedent factored into some of them, in other cases it’s “because wisdom has come late.”
So "wisdom" will allow Scalia to reverse his past opinions, just like that. "What's that, I have to reverse every one of my past opinions in order to reach the answer I want on this next case? No problem! In SCOTUS jurisprudence, we call that 'alternate Mondays.'"

Back when Raich was being argued, Adam Cohen in the New York Times argued about the portent for New Deal laws the decision could hold. Writing specifically about Scalia, he seems eerily prescient.

Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.
Scalia has found his more congenial case in the Affordable Care Act, it seems, leading to the scariest thought of the summer: It's all up to Kennedy now.

Originally posted to Joan McCarter on Mon Jun 18, 2012 at 10:16 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  How much did the Kochs pay him to change his (16+ / 0-)

    opinions of the law, or is he just that big an asshole by nature?

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Mon Jun 18, 2012 at 10:26:05 AM PDT

  •  Kennedy is and always has been the key vote (19+ / 0-)

    Alternative rock with something to say:

    by khyber900 on Mon Jun 18, 2012 at 10:26:14 AM PDT

    •  If one could count on (12+ / 0-)

      Scalia not to be an extremist hack, and to actually act like a Supreme Court justice, that wouldn't be the case.


      "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

      by Joan McCarter on Mon Jun 18, 2012 at 10:28:16 AM PDT

      [ Parent ]

      •  He's acted like a justice. (1+ / 0-)
        Recommended by:

        A very very very conservative justice.  A "textualist" justice.  But a Supreme Court justice, nonetheless.  

      •  Did you read his opinion justifying B v. G stay? (11+ / 0-)

        If you read his opinion and then read Stevens' dissent, you'll understand what was obvious 12 years ago:

        The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.
        Anyone who was familiar w/ B v. G and w/ Citizens United knew coming in that there were 4 solid votes against the mandate and 4 solid votes for it.  Since Kennedy, the swing voter, ultimately stuck w/ the party line in both of those prior decisions, one had to suspect that he'd go for the trifecta here.   That's why severability had to be argued w/ vigor.  Instead, it was essentially conceded--the WH chose to rise or fall on the mandate.

        While it's theoretically possible that 5 current Supremes might someday reverse Wickard, I don't think that Kennedy is anywhere close to that point.  FDR passed a government-run retirement system.  He didn't pass a bill  that required Americans to invest in 401k's.  While people can debate over the constitutionality of Uncle Sam serving as a collection agent for AHIP, there's a great deal of distance between the individual mandate and New Deal legislation.

        Were Willard to get elected, were Ginsburg's health to force her retirement, and were she to be replaced w/ someone from the Roberts/Scalia/Thomas/Alito lineage, I'd be much more concerned.  I wouldn't, however, jump that far here yet.

        Some men see things as they are and ask why. I dream of things that never were and ask why not?

        by RFK Lives on Mon Jun 18, 2012 at 11:02:43 AM PDT

        [ Parent ]

        •  Precisely correct (10+ / 0-)

          The health insurance boondoggle was a bad bill in just about every possible respect.

          I don't think too highly of the conservative wing of the Supreme Court, but it was certainly predictable they might strike down a statute requiring people to buy private health insurance.  A government program for health care (or retirement or whatever) simply does not have the same consitutional vulnerability.

          Ironically, if the Democrats had included a public option, they could have defended the private insurance program as an opt-out from the government program.  A private sector opt-out should be A-OK with conservatives, just like a school voucher.


          In the rest of the developed world consumption is taxed to pay for education and health care, in the United States, health care and education are taxed to pay for consumption. Stirling Newberry

          by albrt on Mon Jun 18, 2012 at 11:57:50 AM PDT

          [ Parent ]

          •  The 11-dimensional chess didn't work out so well. (6+ / 0-)

            That masterful, leaderless, leave-it-up-to Max Baucus strategy was not all it was cracked up to be.

            Barack Obama: Gives people who tortured other people to death a pass, prosecutes whistleblowers. Change we can believe in!

            by expatjourno on Mon Jun 18, 2012 at 04:22:36 PM PDT

            [ Parent ]

            •  Scalia may not be consistent, but you certainly (1+ / 0-)
              Recommended by:
              Khun David

              are, expat.  There is no issue, on any topic, in which blame can't be laid at the feet of the President.  

              Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it. --Mark Twain

              by SottoVoce on Mon Jun 18, 2012 at 04:54:43 PM PDT

              [ Parent ]

              •  Yeah. So unfair. Obama had nothing to do with... (1+ / 0-)
                Recommended by:

                ...the legislative strategy or the result of health care reform. He was just a poor, helpless bystander. Not like he could have had any influence at all on the process or the result.

                That's the thing about you ardent supporters. You will always defend Obama, and make personal attacks on his critics rather than answer the criticisms.

                Because you have no way to ever answer the criticisms themselves. Which, in turn, is because you know they are valid.

                Barack Obama: Gives people who tortured other people to death a pass, prosecutes whistleblowers. Change we can believe in!

                by expatjourno on Mon Jun 18, 2012 at 11:14:23 PM PDT

                [ Parent ]

          •  I second that... (1+ / 0-)
            Recommended by:

            "The health insurance boondoggle was a bad bill in just about every possible respect."

            It was rushed through despite being a very bad bill, because they HAD to have something for Obama to sign.  If he'd run on HC reform, and been defeated by the Tea Party with nothing being passed, it would have been his Waterloo (as the story goes).  

            So, unable to pass a bill anybody loved, they passed the lipstick on a pig bill that nobody liked.  Now, they're stuck with it, and it will be overturned a few months before Obama runs for re-election.  

            I'm not sure how that plays out politicially, but it will be a BIG event.  And, when you're winning the game, the last thing you want is a BIG play (re: event) of any kind.  The next month or so is critical.  Obama has chosen to hit (define) Romney hard in May/June with Bain Capital.  If that doesn't stick (and I mean make him a non-viable alternative), then there really isn't much else other than flip-flopper that may convince voters that they should keep this disappointing, underachieving president.  And, if Romney is a viable alternative, then he/they can make a case that Obama had one signature achievement,...and it was unconstitutional.  Struggling swing voters could care less about DADT, and whether or not a Dem killed Osama.

    •  When has Kennedy ever been a swing vote? (1+ / 0-)
      Recommended by:

      When it comes down to major cases, Kennedy has always aligned himself with the conservative cause and he will here also.  This was a done deal from the beginning.

      •  Kelo? (1+ / 0-)
        Recommended by:

        I've suggested in the past that there are similarities to Kelo, where Kennedy joined the court's more liberal bloc (at the time, Stevens, Souter, Ginsburg, and Breyer) against the conservatives (Rehnquist, Scalia, Thomas, and O'Connor).

        Kennedy wrote a concurring decision in that case.  I would not be shocked to see Kennedy vote with a 5-4 majority and write a concurring decision that suggests that the ACA just barely fits within the limits of the Commerce Clause, while seeking to define those limits in a way that might make some liberals pessimistic about improving upon the ACA.

        •  Two seperate issues here (4+ / 0-)
          Recommended by:
          Losty, davis90, MJB, PeterHug

          Unlike you, I will be TOTALLY shocked to see Kennedy voting as you believe he might.  

          I think there is more here than meets the eye.  The conservative-leaning justices see a "win" by Obama in this as something that could help him win re-election which could very well eventually dilute the conservative influence on the bench in the future.  

          There's more here than I think people realize.

          The truth is sometimes very inconvenient.

          by commonsensically on Mon Jun 18, 2012 at 04:49:17 PM PDT

          [ Parent ]

          •  we have a winner (0+ / 0-)

            "But once John Boehner is sworn in as Speaker, then he’s going to have responsibilities to govern. You can’t just stand on the sidelines and be a bomb thrower." - President Obama, 12-07-2010

            by justmy2 on Mon Jun 18, 2012 at 04:52:05 PM PDT

            [ Parent ]

      •  BGL rights? (0+ / 0-)

        Kennedy has consistently taken a dim view of government discrimination against BGL individuals and same-sex couples.

    •  What about Roberts? (0+ / 0-)

      Pretty sure there's speculation of him ruling in favor of the ACA.

  •  It may be up to Kennedy, (17+ / 0-)

    but, I will bet that if Kennedy votes (or, more appropriately, considering the approaching end of term, voted) to uphold, that Roberts would have done so as well, in order to control the assignment of the writer of the majority decision.

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Mon Jun 18, 2012 at 10:27:56 AM PDT

    •  Interesting thought (16+ / 0-)

      I suspect Scalia is going to focus on the whole activity/inactivity red herring to make his decision, which Kennedy seemed amenable to in the arguments.

      OTOH, Kennedy seemed bothered on the third day with the scope of what overturning the mandate would mean for trying to salvage any part of the law. He seemed really taken aback by what it could mean. Which could lead either to striking it all, or upholding. I don't see a middle ground. And I don't see Roberts voting to uphold everything.

      I'll guess we'll know soon enough. And, yes, it Is the Supreme Court, Stupid. It's always been, making your moniker particularly pointed, but this case really puts a point on that.

      "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

      by Joan McCarter on Mon Jun 18, 2012 at 10:33:18 AM PDT

      [ Parent ]

      •  I agree with you (2+ / 0-)
        Recommended by:
        Fury, LordMike

        Kennedy seemed to be literally searching for a reason so that they could line strike the mandate down without decimating the remainder of the law and the repercussions it would mean.

        I still think it will be upheld but also tempered with a Bush v Gore style "This time and this time only" write up.

        --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

        by idbecrazyif on Mon Jun 18, 2012 at 11:05:32 AM PDT

        [ Parent ]

        •  I don't know about that (2+ / 0-)
          Recommended by:
          ivorybill, VClib

          the "this time, and this time only" part.

          I think there's a faction that has been looking for an opportunity to put some limits on Congress' power under the Commerce Clause -- See United States v. Lopez.  I think that for some Justices, the ACA presents that opportunity to say, in effect, "this is a line you (Congress) can't cross under the Commerce Clause."  

          If that's the purpose then the decision will be anything but a "this time, and this time only" decision.  

        •  Striking the mandate and leaving the rest (1+ / 0-)
          Recommended by:

          is IMO the fastest route to single payer (or Medicare-for-all) that currently exists - it will probably make healthcare insurance a product line that cannot make a profit.

    •  Can't remember (9+ / 0-)

      the New York Review of Books article -- months ago -- but the bottom line argument is that Roberts will go with the majority -- not for judicial reasoning -- but because he doesn't want to be on the losing side of perhaps the biggest case (other than Citizens United) of his career at this juncture.  So, the author was guessing 6-3.

      Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

      by gchaucer2 on Mon Jun 18, 2012 at 10:37:27 AM PDT

      [ Parent ]

    •  Maybe, but Roberts would have to switch his vote (2+ / 0-)
      Recommended by:
      Fury, LordMike

      In the justices' conferences in which they vote, the custom is that the chief justice goes first and then each justice in turn from most to least senior.  So Roberts goes first, Scalia second, Kennedy third, etc., and Kagan votes last.  

      It's possible that Roberts could switch his vote in the conference after hearing how Kennedy voted, but not likely to often happen.  Burger did that often when he was chief justice and, according to accounts from inside the court, lost respect among the other justices because of it.

      So it could happen, but I wouldn't assume that Roberts would flip-flop after Kennedy voted.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Mon Jun 18, 2012 at 10:44:48 AM PDT

      [ Parent ]

      •  Don't you think he will know how Kennedy will (0+ / 0-)

        vote in advance of the official vote? Not that familiar with procedure so that may be a stupid question.

        Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear." ~William E. Gladstone, 1866

        by bluestatedem84 on Mon Jun 18, 2012 at 03:38:33 PM PDT

        [ Parent ]

    •  Did you see Greenhouse Thurs re 'Enough is enough' (1+ / 0-)


      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Mon Jun 18, 2012 at 11:07:13 AM PDT

      [ Parent ]

  •  The entire New Deal is not based on Wickard. (14+ / 0-)

    Social Security and Medicare (the Great Society) are not based on Wickard.

    This is what allowed the New Deal:

    United States v. Carolene Products Company, 304 U.S. 144 (1938),[1] was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The defendant argued that the law was unconstitutional on both Commerce Clause and due process grounds.

    The previous term, the Court, under pressure from the Roosevelt administration's court-packing plan, had dramatically changed its Commerce Clause jurisprudence to enlarge substantially those activities considered to be in or to affect interstate commerce; however, it has been argued that the "switch in time that saved nine" followed the natural progression of Justice Roberts' earlier opinions (it was his swing vote in the New Deal 5-4 decisions that authorized the more intensive regulation of the economy).[citation needed] It had also altered its settled jurisprudence in the area of substantive due process, that is, the constitutional law dealing with rights not specifically enumerated in the Constitution. These changes meant that many New Deal programs that the Court would previously have invalidated would henceforth be found constitutional.

    The defendant company was charged with breaking the law described above, and at trial it had filed a motion to dismiss the charges on the grounds that the law was unconstitutional. The United States District Court for the Southern District of Illinois had granted the defendant's motion, and the Seventh Circuit Court of Appeals had affirmed the District Court's ruling.

    Justice Harlan Stone, writing for the Court, found that the law, being "presumptively constitutional" was essentially a legislative judgment, and hence was not for the courts to overrule. Applying rational-basis review, the Court held that the law was supported by substantial public-health evidence, and was not arbitrary or irrational.


    In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest.

    The Social Security cases:
    On May 24, 1937 the Supreme Court handed down its decision in the three cases. Justice Cardozo wrote the majority opinion in the first two cases and he announced them on what was, coincidentally, his 67th birthday. (See sidebar on Justice Cardozo.)

    Mirroring the situation in Congress when the legislation was considered, the old-age insurance program met relatively little disagreement. The Court ruled 7 to 2 in support of the old-age insurance program. And even though two Justices disagreed with the decision, no separate dissents were authored. The unemployment compensation provisions, by contrast, were hotly disputed within the Court, just as they had been the focus of most of the debate in Congress. The Court ruled 5 to 4 in support of the unemployment compensation provisions, and three of the Justices felt compelled to author separate dissents in the Steward Machine case and one Justice did so in the Southern Coal & Coke case.

    Justice Cardozo wrote the opinions in Helvering vs. Davis and Steward Machine. After giving the 1788 dictionary the consideration he thought it deserved, he made clear the Court's view on the scope of the government's spending authority: "There have been statesman in our history who have stood for other views. . .We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton . . .has prevailed over that of Madison. . ." Arguing that the unemployment compensation program provided for the general welfare, Cardozo observed: ". . .there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. . .the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose [other] than the promotion of the general welfare."

    And finally, he extended the reasoning to the old-age insurance program: "The purge of nation-wide calamity that began in 1929 has taught us many lessons. . . Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. . . But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near."

    With these cases decided, Justice Stone could then dispose of the third case in short order. "Together the two statutes now before us embody a cooperative legislative effort by state and national governments, for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other. The Constitution does not prohibit such cooperation

    The New Deal is far more than Wichard.  I hope the ACA is found to be consistutional, and I believe it is, but the activist court may not.  If they find it uncon, it likely will be in a limited way predicated on a distinction regarding requiring a purchase of a product.  

    Overturning Wichard is bad, but not the end of the New Deal.    

    I'm from the Elizabeth Warren and Darcy Burner Wing of the Democratic Party!

    by TomP on Mon Jun 18, 2012 at 10:31:24 AM PDT

    •  Not surprising. (4+ / 0-)
      Recommended by:
      TomP, llywrch, annecros, VClib

      Several Justices have "evolved" over time -- most notably, for example, Justice Blackmun, who was appointed because conservatives hoped he'd provide a vote to conservative Chief Justice Burger (they had long been friends).  In the Brethren, by Bob Woodward, there's an extensive story of Justice Brennan "courting" Justice Blackmum and of his evolution into the liberal Justice he ultimately became.  

      Wickard was always kind of the "outer edge" of Commerce Clause regulation, I think.  The issue in Wickard was whether Congress' authority to regulated interstate commerce allowed it to regulate someone who was growing wheat for his own consumption on his own farm.  The notion was that it affected interstate commerce (reducing the necessity for him to buy wheat, for example). Wickard was pretty much considered the "outer reaches" of the Commerce Clause by those who want a limited reading of Congress' authority under the Constitution.  See United States v. Lopez (1995) (discussing Wickard).

      The notion by some that Wickard might have gone a bit too far is not new.  However, if Wickard remained good precedent, Raich was pretty much a done deal.

      I'm not surprised that a Justice who has always described himself as a "textualist" would conclude that regulating purely intrastate activity (growing wheat and consuming it on your own farm) was outside of the reach of the Commerce Clause.  My only surprise is that he did not come to that conclusion earlier, like in Raich. Perhaps in Raich he cared more about stare decisis, and was less likely to want to rock the boat by saying Wickard should be overturned.  Who knows. But given his constitutional approach, it seems like Wickard/Raich would have always been a stretch for him.  

      What I suspect happens in the ACA case is that Scalia uses this as a vehicle to say that the scope of the Commerce Clause has gone too far, that the individual mandate was a "step too far" in stretching the reach of the Commerce Clause. Whether he specifically calls for the overturn of Wickard, or simply says that this went beyond Wickard and that's too far, we'll have to see.  

  •  I dont trust Justice Kennedy (9+ / 0-)

    "Rick Perry talks a lot and he's not very bright. And that's a combination I like in Republicans." --- James Carville

    by LaurenMonica on Mon Jun 18, 2012 at 10:33:07 AM PDT

  •  Constitutional scholar, (36+ / 0-)

    Adam Winkler, nails it:

    This is typical Scalia. He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When its being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law. Once again, we see that Scalia’s originalism is a charade.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Mon Jun 18, 2012 at 10:33:59 AM PDT

  •  God help us. n/t (3+ / 0-)
    Recommended by:
    Matt Z, LordMike, bluestatedem84

    Being ignored is the difference between being a one percenter and an American.--sweeper

    by SouthernLiberalinMD on Mon Jun 18, 2012 at 10:48:07 AM PDT

  •  Repug Justice Kennedy faces a dilemma (3+ / 0-)
    Recommended by:
    Fury, LordMike, bluestatedem84

    Does he cater to the big money of the insurance companies who DO want the ACA as is because it gives them millions of new customers who will HAVE to pay?

    Or does he cater to the Tea Baggers who want "Obamacare" to fail before November?

    Whatever he does will be the for most evil  reasons possible but I wouldn't want to be in his blood soaked shoes.

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Mon Jun 18, 2012 at 10:56:26 AM PDT

  •  They call him Flipper (2+ / 0-)
    Recommended by:
    Matt Z, LordMike

    Kennedy, that is, based on his prevaricating (sp?) in Bush v. Gore.

    "Life is a bitch, and then you die. And then you come back." Old Buddhist proverb

    by RubDMC on Mon Jun 18, 2012 at 11:00:10 AM PDT

  •  Scalia... (4+ / 0-)

    And the rest of the GOP hoard, have one guiding principle - do whatever it takes to protect the profits of his benefactors.  That's it.  It doesn't have anything to do with 'states rights' or the 'power granted Congress by the commerce clause'.  In the marijuana case - he ruled in favor of the pharmaceutical companies.   Marijuana is cheap, easy to grow and has a lot of medicinal properties without a lot of side affects.  That puts in direct competition with big pharma.  Scalia and his ilk will always rule for the power of the wealthy over the individual.  That is their single guiding principle.

    'Osama Bin Ladien is still dead and GM is still alive' - Joe Biden "Dems kill terrorist. The GOP keeps them around as a boogeyman - so they can continue to steel."

    by RichM on Mon Jun 18, 2012 at 11:00:39 AM PDT

  •  If my (5+ / 0-)

    Aspie son gets kicked off of our health care, we are so screwed!

    "The object of persecution is persecution. The object of torture is torture. The object of power is power. Now do you begin to understand me?" ~Orwell, "1984"

    by Lily O Lady on Mon Jun 18, 2012 at 11:05:10 AM PDT

  •  It may be or it may not be (1+ / 0-)
    Recommended by:
    Matt Z

    we just don't know.

  •  I'd bet the farm if I had one on the end of ACA (6+ / 0-)

    with this SCOTUS. Citizens was the worst decision of my lifetime, so why on earth could we count on Kennedy to be reasonable this time?
    We lose, then fight the next fight and win an even better deal!

    "But Brandine, you're supposed to be in Iraq stopping 911!"

    by leftyguitarist on Mon Jun 18, 2012 at 11:19:24 AM PDT

  •  roberts too (4+ / 0-)
    Recommended by:
    Matt Z, GOPGO2H3LL, buffie, bluestatedem84

    roberts has shown some willingness to uphold the aca.

    he asked  tough questions against the conservative lawyer

  •  So we have found out what Scalia (10+ / 0-)

    means by "originalism". The Original Intent of the Authors was for Antonio Scalia to rule our nation with an iron gavel.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra En théorie, il n'y a aucune différence entre théorie et pratique, mais en pratique, il y a toujours une différence. - Yogi Berra

    by blue aardvark on Mon Jun 18, 2012 at 11:38:56 AM PDT

  •  Don't compare the ACA to the New Deal (9+ / 0-)

    The New Deal consisted of government programs where money was used to improve the lives of Americans. The ACA is a law that improves the bottom line of corporations by forcing everyone in America to give them money. They are completely different.

  •  Huh? (3+ / 0-)
    Recommended by:
    buffie, bluestatedem84, Tuffie

    That criminal pig was always gonna vote to kill Obamacare, because of the Obama part of it.  Um, broccoli anyone?

    In other shocking news, the sun is hot.

    Obama is at war with radical anti-American terrorists. The radical GOP is at war with American women. Take that and run with it DNC, you inept fucking pikers.

    by GOPGO2H3LL on Mon Jun 18, 2012 at 11:50:33 AM PDT

  •  Ginsberg's dire warnings (3+ / 0-)
    Recommended by:
    Gooserock, bluestatedem84, Losty

    I am surprised that no one here has picked up on Justice Ginsberg's comments last week presaging a "major disappointment next week".

    the only thing we have to fear is fear itself--nameless, unreasoning, unjustified terror... FDR first inaugural address

    by blogokvetsch on Mon Jun 18, 2012 at 12:05:07 PM PDT

  •  'Wisdom has come late' (3+ / 0-)
    Recommended by:
    Gooserock, Pluto, indie17

    What arrogance for Scalia to call his version of jurisprudence and the law 'wisdom'. Wisdom has nothing to do with what this lot of supremes have done to our rule of law and our politics.

  •  I Have to Bet They Wait Til 2013 to Take Out (3+ / 0-)
    Recommended by:
    bythesea, kayfromsouth, Losty

    the New Deal.

    You typically hit the people the hardest immediately after an election so they can't touch you for years.

    If they hit the New Deal too hard in striking ACA, seniors could bolt. (Of course there'd have to be some way for them to get the news, which perhaps the right has sufficiently covered by now.)

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Mon Jun 18, 2012 at 12:40:22 PM PDT

  •  If SCOTUS approves the mandate, the way is (1+ / 0-)
    Recommended by:

    open for compulsory privatization of Social Security and other such government programs.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Mon Jun 18, 2012 at 04:03:25 PM PDT

    •  Not really (1+ / 0-)
      Recommended by:

      a plan for private funds in Social Security was tried duing Bush's term (well before ACA) and failed completely outisde of legal problems.
      I think your statement is a slippery slope argument that is flawed in the same way that the 'next everyone will be forced to buy broccoli' argument is flawed.

      You can't invalidate laws because somehow there is a possibility way down the line that a future President or Congress will do something wacky as a result of it.

      •  You don't think a President Romney and a GOP (1+ / 0-)
        Recommended by:

        Congress would do just that if they got the chance?

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Mon Jun 18, 2012 at 07:00:53 PM PDT

        [ Parent ]

        •  They don't need the mandate (0+ / 0-)

          They don't need the mandate to do that.  I think implying that the mandate will allow them to do that is mistaken. They can do that with or without.

          And I think we need to work to make sure they never get elected.

          •  If SCOTUS strikes down the mandate, (0+ / 0-)

            it would be much harder -- if not impossible -- for them to do it.

            I find it hard to imagine even the Roberts court approving the compulsory privatization of Social Security if it has just struck down the health care mandate as unconstitutional.

            The influence of the [executive] has increased, is increasing, and ought to be diminished.

            by lysias on Tue Jun 19, 2012 at 07:39:10 AM PDT

            [ Parent ]

            •  I'm not willing to sacrifice my friend's life (0+ / 0-)

              I'm not willing to sacrifice my friend's life,  on the possibility that somewhere down the line someone might try to privatize Social Security.  Especially when privatizing was already tried during Bush's terms and didn't hit any legal snags then.


      •  If the Mandate stands, there *is* no slope (0+ / 0-)

        to mandatory 401(k)s.

        “The administration should be worried about the level of despair here.” ~Markos Moulitsas at NN12

        by JesseCW on Mon Jun 18, 2012 at 07:36:27 PM PDT

        [ Parent ]

  •  he had to work for a University based in Stockton (0+ / 0-)

    so it figures....

    slutty voter for a "dangerous president"; Präsidentenelf-maßschach; Warning-Some Snark Above"Nous sommes un groupuscule" (-9.50; -7.03) "Sciant terra viam monstrare." 政治委员, 政委!

    by annieli on Mon Jun 18, 2012 at 04:28:59 PM PDT

  •  Five non supremes are evil (0+ / 0-)

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Mon Jun 18, 2012 at 04:32:45 PM PDT

  •  It's been Kennedy (0+ / 0-)

    I thought Scalia might be consistent but at the start of the oral arguments when he repeated points already shot down, it was clear he wasn't going to support the mandate.
    Kennedy is where it rests. I am cautiously optimistic that the mandate will be upheld 5-4 with Kennedy upholding it. He started the oral arguments asking tough questions, but towards the end seemed to be coming around and stating that in view of the current problems with the access and affordability of health care, the mandate would be a good thing.
    Roberts gave some good questions to both sides as well. But I don;t know where he will be on this.

  •  I really truly hope no one actually believed (0+ / 0-)

    Scalia guiding principle is the law, Constitution or ideology.  Bush v Gore proved that without a doubt.   Anyone willing to ignore that debacle does not understand the power of the current RW regime. They have a single goal.  Power.  He has it and is willing to take any action required to maintain it.

    "But once John Boehner is sworn in as Speaker, then he’s going to have responsibilities to govern. You can’t just stand on the sidelines and be a bomb thrower." - President Obama, 12-07-2010

    by justmy2 on Mon Jun 18, 2012 at 04:46:52 PM PDT

  •  Anyone who thought this guy was with us ... (1+ / 0-)
    Recommended by:
    Prairie Gal

    Was seriously off-base to say the least.

    It's Scalia.

  •  this is perfectly consistent scalia. (0+ / 0-)

    anything that causes harm to individuals, or doesn't help them, is his position.

    allowing individual states the right to make their own decisions, regarding the legality of medical pot harmed the health of those who relied on it.

    allowing the federal gov't to mandate that everyone be required to have at least a minimal level of health insurance would help people who currently have none, and thus only seek care when they are (literally) at death's door.

    see, perfectly consistent approach.

  •  What's the beef with the mandate, anyway? (0+ / 0-)

    In my state, you have to have a driver's license to drive a car legally.  It's compulsory.  You have to buy auto insurance to drive a car.  It's compulsory.

    If people can live with that, why can't they live with buying health insurance?  I understand if they're not employed and therefore not earning any money they can't buy it--surely provision has been made for that.

    I don't understand why there's a problem with this.

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Mon Jun 18, 2012 at 05:02:32 PM PDT

    •  completely different. (0+ / 0-)

      There is no mandate for auto insurance.  It's only required if you own and operate a vehicle.  I haven't purchased auto insurance for almost 10 years and I've never had to pay a tax or penalty.

      The ACA requires everybody to purchase health insurance because it is almost certain that they will one day have to pay medical bills.  If theses two mandates were the same, then eveybody(regardless of whether you drive) would be required to buy auto insurance because it is almost certain that they will one day own and drive an automobile.

    •  When did you state start legally requiring (0+ / 0-)

      that you purchase a car and drive it on public roads?

      Pretty hide-bound privileged middle calls argument.

      “The administration should be worried about the level of despair here.” ~Markos Moulitsas at NN12

      by JesseCW on Mon Jun 18, 2012 at 07:37:20 PM PDT

      [ Parent ]

      •  Guess you didn't read it (0+ / 0-)

        I didn't say this state requires its residents to buy a car and drive it.  I said the following:

        In my state, you have to have a driver's license to drive a car legally. It's compulsory.  You have to buy auto insurance to drive a car.  It's compulsory.
        Meaning that if you have a car and wish to drive it while complying with state laws, you must have a driver's license and auto insurance.  Get it now?

        "Religion is what keeps the poor from murdering the rich."--Napoleon

        by Diana in NoVa on Tue Jun 19, 2012 at 08:21:28 AM PDT

        [ Parent ]

        •  But owning a car in the first place (0+ / 0-)

          is not compulsory. You're both right, but about different things.

          "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

          by bryduck on Tue Jun 19, 2012 at 08:54:56 AM PDT

          [ Parent ]

        •  So, you think it logically follows that you (0+ / 0-)

          should have to buy junk health insurance with a huge deductible...because you are alive?

          Get it now?

          Owning a car is a luxury.  Operating it on public roads is a privilege.  Requiring that you have insurance to drive is no different than requiring that you carry malpractice insurance - if you decide to be a doctor.

          You don't have to be a doctor, or drive a car.

          Living is a right.  It's not right that you should have to pad some CEO's pocket simply because you breathe.

          “The administration should be worried about the level of despair here.” ~Markos Moulitsas at NN12

          by JesseCW on Wed Jun 20, 2012 at 12:26:36 AM PDT

          [ Parent ]

  •  If the law is overturned, I believe there (0+ / 0-)

    will be a really loud outcry from many sectors.  Excluding Scalia and Thomas, who are hacks without shame or a sense of history, the justices whose actions are taken to insure electoral benefits to the GOP might take pause before ruling.  At first the call seemed easy, screw Obama and kill the ACA.  But over time, people have gotten used to the benefits that have been put in place so far.  The insurance companies were counting on the mandate.  Hospitals are in the midst of making longterm decisions based on the law.  States have undertaken the work of setting up the exchanges.  Overturn the law and there will be chaos, anger, and a howling from the public.  Even the Tea Party types--the non-rich ones--may hate the law, but they can be fickle, and they don't like having things taken away from them.  "Keep your government hands off my medicare" should really be their motto.  Overturning the ACA may turn people against the GOP.  So the SCOTUS will have to think very hard about the eventual electoral outcome of their decision.  That, and only that, may save us.

    Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it. --Mark Twain

    by SottoVoce on Mon Jun 18, 2012 at 05:03:18 PM PDT

  •  No, Scalia will go with mandate and will be 7-2 (0+ / 0-)

    This isn't even close to a Wickard v. Filburn case, it's well within the power of Congress.  The problem is that it costs a lot to build hospitals and train doctors.  

    If some smarty-pants (let's call him "Mr. Invulnerable") decides that he doesn't want to chip in his share because he's healthy, well what happens tomorrow when he's in a car crash?  We pick up up and take him to the emergency room, where with luck he's patched up and maybe he'll pay his bill and maybe he won't, but if he doesn't, everyone else who does pay insurance will have to carry the load for the fool.

    And this isn't inactivity vs. activity.  So long as Mr. Invulnerable is walking around he's creating a risk.  If he went off an lived in a cave somewhere, maybe I could see that, but he's not, he's driving a car for instance and statistically sooner or later Mr. Invulnerable or someone just like him is gonna need medical care.  So he doesn't get the option of not paying.

    If Scalia is too stupid to recognize this, he needs to retire and become a goat herder in the Wallowa Mountains.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Mon Jun 18, 2012 at 05:04:23 PM PDT

  •  there's nothing scary about relying on Kennedy (1+ / 0-)
    Recommended by:

    because...he's made it perfectly clear that he is a radical, right-wing whackjob who thinks it's okay to allow unlimited amounts of secret corporate money further pollute and corrupt an already corrupt political system.

    There's nothing scary about the fact that this is in Kennedy's hands, because, to me, at least, it's a foregone conclusion that we have five of the most corrupt Supreme Court Injustices in American history. Five people who care more about money than their country. Five people who care only about feathering their own nests (yes...their decisions give more power and, therefore, money, to corporations, of which virtually all of them are likely vested in their financial portfolios).

    The only issue in my mind is what to do when these same five whackjobs decide to flip the bird at the American people again on healthcare insurance reform. Because, they've already demonstrated themselves more than capable of telling the entire American electorate to just simply go...f*** themselves.

    Based on all available evidence, including their childish behavior during oral arguments, their recent history and even recent indications from a member of the court (Justice Ginsburg), it looks like a pretty safe bet that five of the most corrupt Supreme Court Injustices in American history will, once again, misuse their power with radical, right-wing extremist judicial activism the likes of which have never beeen seen before, and tell everything that all of the time, effort, energy and resources spent ever since President Truman first proposed national healthcare...has been for naught.

    We, basically, will need to start over, because it looks like these five whackjobs are on the verge of telling the country that we're going to go back to the same broken, corrupt, healthcare system that we had before.  But, then again, what do you expect from five of the most corrupt people to ever be allowed lifetime appointments to this once illustrious body?

  •  Repeat after me..... (3+ / 0-)
    Recommended by:
    Losty, redstella, roadbear

    The Supreme Court is a Political body.

    They're gonna torpedo eviscerate the Healthcare act. 5-4.  (my guess: reasoning it over extends the commerce clause)

    Obama needs to get out that executive order pen the very next day and sign an order extending Medicare to Everyone who wants it.  Then Demand that Congress fund it, (Medicare will be legal, it's organized under the Taxing authority of the Constitution).  

    It's the House of Representatives responsibility to raise revenue, as it says in the Constitution.  

    This would hit the Republicans much Harder than the Executive immigration order.

    ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

    by NevDem on Mon Jun 18, 2012 at 05:11:05 PM PDT

    •  There's no severability clause in the ACA (0+ / 0-)

      That is the rationale the K-RATS will use to strike down the whole law.

    •  It was with good reason (0+ / 0-)

      that Hamiton wrote in Federalist 78 that the judiciary is the least dangerous branch.  While politically appointed, the Justices were not empowered to substitute their will for the will of the legislature as expressed in statutes or the will of the people as expressed in the Constitution.  When the Court began to engage in considerations of what was right for the country without regard to the Constitution, then it began to substitute its will for that of the people's and became our virtual oligarchy.  

      •  Ol' Alex was simply wrong, but then again, (0+ / 0-)

        who could have foreseen that such scumbags would have been nominated and then confirmed? "Separation of powers" and "checks and balances" have failed us again in the face of intransigent and well-financed radicals . . .

        "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

        by bryduck on Tue Jun 19, 2012 at 08:58:37 AM PDT

        [ Parent ]

  •  Obama this (2+ / 0-)
    Recommended by:
    DeeDee001, vcmvo2

    and understand why, even with his flaws, we must re elect this president. The Supremes are a mess but can you imagine if they get one more righty on the bench?

  •  I see two possibilities (0+ / 0-)

    1) General legal opinion on the mandate has not changed at all in two years and this is just a bunch of drama stirred up by the media for ratings.

    2) Kennedy bases his legal opinions on WaPo opinion columns.

    I think (1) is more likely.

  •  How Can Someone Be So Hypocritical? (0+ / 0-)

    Everyone knew how biased Scalia is for the tea baggers.  We should not be that surprised that this man will change his views on whatever he wants to change it on.  Precedent does not have any baring on this court.  It is so shameful that even conservative leaning judges are appalled at the way this court decides cases.  

    "Don't Let Them Catch You With Your Eyes Closed"

    by rssrai on Mon Jun 18, 2012 at 05:28:23 PM PDT

  •  A few years ago, a history may listed the Worst (1+ / 0-)
    Recommended by:

    Supreme Court Justices in history. I think they chose nine. I would think they would have to give serious thought to replacing two of them with Scalia and Thomas. Two seriously corrupt/contemptible justices.

  •  It was always going to be Kennedy (0+ / 0-)

    Anyone who has read enough of Scalia's opinions should have known it.  It boggles the mind that experienced attorneys from the government ever thought they were going to win Scalia, particularly after all the very public displays of affection he's exhibited for the right.   I'm a fresh law school graduate who hasn't yet taken the bar who knows it.  All you've got to do is compare Scalia's commerce clause opinions and know that his "jurisprudence" is nothing but a steaming pile of reverse engineered crap.

    It was always going to be Kennedy. Kennedy is a swing justice precisely because he loves to be at the center of these controversies.  His vanity is flattered. It's how he gets to author important opinions.  

    We can only hope that, as with Lawrence and Evans, Kennedy will come down on the right side.  My fervent hope is that he will let his ego drive him - if the court strikes down the ACA there's no way Kennedy gets to write the opinion.  If he is the fifth vote that upholds it, there's a very good chance the liberal bloc will give him the opinion.  

    Theoretically Roberts could change his vote in that case and take the opinion himself, but then I think we'd see a plurality opinion as Roberts attempts to narrow the holding as much as possible, the more liberal justices object (I'm thinking Sotomayor here, maybe Ginsberg) and write separate opinions and Thomas - joined perhaps by Scalia - writes again of his standing dissent to Wickard and all its commerce clause progeny.  

    I think Roberts isn't quite stupid enough for that.  If the ACA is going to stand anyway I don't think he'll want to risk the Supreme Court's reputation by muddying the waters with a confusing plurality opinion.  

    They who would give up an essential liberty for temporary security, deserve neither liberty or security. ~Benjamin Franklin

    by TehWondahkitty on Mon Jun 18, 2012 at 06:31:08 PM PDT

  •  Question (0+ / 0-)

    Doesn't the quote from Scalia actually mean that ACA will be struck down?  The word "ruling"...  Doesn't this confirm it?

    In the preface of his new book, Scalia, writing about himself in the third person, concedes that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here” in the health care ruling, the Times reports. He notes that while precedent factored into some of them, in other cases it’s “because wisdom has come late.”

  •  More from Scalia (1+ / 0-)
    Recommended by:

    "In general, Justice Scalia writes, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, he writes, illegitimate.


    Justice Scalia acknowledges one powerful limit on his commitment to textualism. Court precedents must ordinarily be respected even when they were based on misguided readings of the relevant texts, he writes, under the doctrine of “stare decisis,” which is (according to Mr. Garner’s “Dictionary of Modern Legal Usage”) Latin for “to stand by things decided.”

    But there are exceptions to the doctrine, Justice Scalia writes. For instance, he says, “the Supreme Court should not give stare decisis effect to Roe v. Wade,” the 1973 decision that identified a constitutional right to abortion."

    So, in other words, he decides what words mean and then makes up his own rules, depending upon the case.

  •  If the ruling hinges only on the mandate (0+ / 0-)

    there is nothing here with any bearing on the New Deal.

    “The administration should be worried about the level of despair here.” ~Markos Moulitsas at NN12

    by JesseCW on Mon Jun 18, 2012 at 07:31:59 PM PDT

  •  The only thing consistent about Scalia (0+ / 0-)

    Is his adherence to serving the political needs of Republicans. A couple of University of Louisville law professors thought Obamacare will be upheld, probably on a 6-3 vote with Kennedy and Roberts.  In order to get his "pound of flesh" on limiting the final decision, Roberts will end up voting with the majority, so he can write the majority opinion.  

    As for Scalia, one of the professors said he is "an Originalist when it suits him."  Otherwise, the only consistent thing about Scalia is his legal inconsistency.  For Scalia, it is all about promoting the Republican Party and its policies.

  •  ACA gaining popularity (1+ / 0-)
    Recommended by:

    When I called my father on Father's Day Sunday, midway through our conversation my dad told me he was going to vote for Obama this November. Why was this so unusual? He voted for McCain in 2008. This time, however, he told me he was not going to let his feelings about color (he was admitting he voted with a racist attitude four years ago) prevent him from voting for President Obama this time because in his opinion, "President Obama has been the best president ever."  I was shocked to hear him say that, not because I didn't agree with him, but because I had long understood his problems with racism as a young boy and later grown man growing up in Texas during the Civil Rights era of the 1960s.

    I asked him what made him come to see things this way, and the first example out of his mouth was the President's Health Care bill. My mother died last July, and she had been on Medicare for years and paying tons of money for drugs after they reached the donut hole. She and my dad knew that Obama was going to close that donut hole gradually as the legislation went into effect.

    But the one point he made that he noted had cemented his embracing of the President's ACA bill was the ability to keep his youngest son on his insurance until age 26. My brother recently graduated from college, and though he was lucky enough to get a job, he had no health insurance. Dad's policy had covered him all the years he was growing up, and now that he is trying to launch a new career of his own, he can stay insured on dad's policy -- thanks to Obamacare! -- until such time as he can establish himself and make sure he will be covered by insurance without the need of my dad's policy.

    I was delighted to hear him say this. My father was a longshoreman for 37 years working for the Houston Port Authority, a hardscrabble, sometimes dangerous job. He is nobody's patsy, and he also is no demagogue. He calls things as he sees them. His racism of the past has been gradually moderating and changing, like it has for a lot of people in this country, and he now sees the job that our first African-American president has done and he thinks he is doing his best for ordinary, middle class people like himself. He also spoke passionately about the way the Republicans have tried to stop Obama from helping the country, even as their actions have been harmful to the nation. I was surprised to hear him call Boehner and McConnell by name as people who have been "traitors" to the people who are barely hanging on in this terrible recession.

    Finally, he had nothing good to say about Romney, whom he described as the "flip-flopper" of all times, the man who would say anything to get people to vote for him. I ended that conversation proudly thinking about how far my father had come, and hoping in some small way that he was representative of a lot of Americans who may not have supported Obama four years ago, but who now see the Republicans for who they are, and who now embrace the President for being a man who is trying to help them despite the obstructionism of the GOP.  That call gave me hope. Hope that the change Obama promised four years ago may still happen once he is re-elected to his next term. Thanks, Dad! Love you more than you can know.

  •  Justice Kennedy will vote with other conservatives (0+ / 0-)

    Justice Kennedy's always seemed to me to be a decent enough person--for a conservative, anyway. But I doubt he'll possess the intestinal fortitude to go against the other conservatives on the SCOTUS on this issue. If he did, he'd be running a serious danger of some crazed Tea Partiers meeting him in some parking lot with tire irons in hand.

  •  Udoing the progressive century (0+ / 0-)

    If the court kicks the ground out from under Obamacare, the Great Society, the New Deal, and over a century of progressive regulation of the economy they will have taken from the Democrats the last point of difference between them and the GOP with significant appeal to the ordinary, white people of America in the voting booth.

    With all that off the table, after all, what can Democrats run on against the party of the plutes?

    Well, you say, they still have race and the culture wars.

    And if the GOP goes with its libertarians and its Wall Street wing, ditching the Christian agenda and coming down for amnesty and open borders?

    Hell, at that point, why have two parties, at all?

  •  Lochner and West Coast Hotel (0+ / 0-)

    Surely there is nothing new in a reversal of jurisprudence by the SCT, even longstanding jurisprudence.  Witness the 40 year old Lochner era of the Court which came to end with West Coast Hotel.  That period too was fraught with politics.

    Just another reason not to view the SCT as the final protector of freedom -- that protector is the people through duly enacted amendments to the Constitution.  

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