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An aerial view of a woman's softball game showing the batter, catcher and the home plate umpire.
The SCOTUS' strike zone has widened
extremely to the right
[I]t's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. [...] The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically. [Ridiculing emphasis supplied] - 2005 Washington Post Editorial urging the confirmation of Samuel Alito as Justice of the Supreme Court
In 2005, now Chief Justice John Roberts was testifying before the Senate Judiciary Committee, which was considering his nomination by President George W. Bush to replace William Rehnquist as Chief Justice of the United States. In his opening statement, Roberts described the role of justice on the Court as one of neutral arbiter, an umpire calling balls and strikes—a role that required modesty and restraint:
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

The umpire analogy was particularly facile, if not dishonest. Justices of the Supreme Court are part of the policy "game." And, as I noted at the time, every umpire's strike zone is different. The near seven years of the Roberts Court has demonstrated this as few have in our history. But at the time, many urged that Roberts deserved confirmation, based on his credentials, his intellectual capacity and his profession of fealty to the concept of judicial restraint and modesty. Emblematic of this view is law professor Jeffrey Rosen, who wrote in many forums that Roberts should be confirmed. But one of the more striking "Rosen" moments was his description on NPR of an exchange  between Senator Patrick Leahy of Vermont, then the ranking member of the Democratic minority on the Judiciary Committee, and Roberts:
SIEGEL: I want to ask Jeffrey Rosen about one moment in the questioning which struck me a great deal. That was when Patrick Leahy of Vermont was questioning Judge Roberts, and we heard Judge Roberts talk about a Supreme Court justice whom he admires tremendously; one of his great role models is Justice Jackson.

Professor JEFFREY ROSEN (George Washington University Law School): I'm so glad you noticed that moment because I did, too. It was my favorite moment, as well. Leahy was questioning Roberts about his views of congressional power, [...] And it was a wonderful moment, both because it did seem to be Roberts' quite elegant answer to the claim of Democrats that he would just enact the views that he'd expressed in the youthful memos, but more importantly, it showed a deference to congressional authority that many of us have been unsure about whether he has. It was interesting that several senators, and not only Democrats, questioned him quite closely about whether he would defer to Congress' fact-findings and strike down lots of federal laws; Specter and Kyl as well as Leahy. [Emphasis supplied.]

Personally, I was quite sure that Roberts would, to the extent possible, attempt to "enact the views that he'd expressed in the youthful memos." I was also sure that Roberts would "show deference to Congressional authority" when it suited him and would not when it did not. Eventually, people like Jeff Rosen saw it my way. In 2010, he wrote:
What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. [...] If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal. [Emphasis supplied.]

I think we can change that "may" to "has," precipitating the first full throttle confrontation between the president and a narrow majority of conservative judicial activists since the New Deal. The funny thing is that President Obama's economic policies have largely been center-right conventional, not the transformation of our understanding of the national government that the New Deal produced.

As many of us believe, the policy that has now become the center of the storm of the confrontation between the president, the Congress and the Supreme Court—the individual mandate—is not actually an "economically progressive" policy. It is a price paid to garner the political support believed required for the passage of the Affordable Care Act. The progressive policy would have been, of course, Medicare for All, or at least auto enrollment in Medicare for the uninsured.

Based on the oral arguments, the extreme conservative bloc of the Supreme Court has adopted the off the wall attack on the constitutionality of the mandate. Absent a repudiation of nearly 200 years of Court jurisprudence (we'll talk about the notable exception of the Lochner Era Court decisions in a moment), there is no serious argument for the unconstitutionality of the mandate. (For my writings on these subjects, see this, this and this for a few.)

The Court's adoption of these unserious arguments has brought dismay to many:

If [the Supreme Court] decide[s] [the ACA case] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” - Akhil Reid  Amar, Professor, Yale Law School
For the rest of us, we have no choice but to fight to stop this extreme conservative Constitutional winter.

(Continue reading below the fold)

There is no handwringing (or crying) in activism over the Supreme Court. Certainly the conservative movement is seeing its opportunity and it is taking it. Consider George Will:

Conservatives, however, cannot coherently make the case for Romney as a shaper of the judicial branch until they wean themselves, and perhaps him, from excessive respect for judicial “restraint” and condemnation of “activism.” [...] Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.
What does Will mean by "liberty?" He means "economic" liberty—the liberty to not be subject to minimum wage laws, the liberty to not be "burdened" by regulations, the liberty to not abide by civil rights laws, the liberty to pollute the environment, the liberty to have our financial system operate like a casino. In a concurring opinion by DC appellate court judge Janice Rogers Brown (PDF), joined by conservative judge David Sentelle (of appointing Ken Star infamy), the extreme conservative ideal was expressed, the overthrow of the New Deal jurisprudence that overturned the Lochner Era. The opinion is clear in its view and so remarkable that I believe an extended excerpt is required:
The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

[...] In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). See also Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185–86 (1935); Steffan v. Perry, 41 F.3d 677, 684–85 (D.C. Cir. 1994) (en banc).

This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified. See James Madison, Notes of Debates in the Federal Convention of 1787, at 39, 42 (W. W. Norton &
Co. 1987). [. . .] But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.

[...] The judiciary justifies its reluctance to intervene by claiming incompetence—apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm—or deferring to the majoritarian imperative. [...] The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. [...] In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” [...] Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of [economic] liberty deserves more respect—a lot more. [Emphasis supplied.]

A more profound disrespect for democracy would be difficult to imagine. A more fundamentalist adulation for belief in the need to protect the Titans of Plutocracy is hard to imagine. But this is the constitutional vision of the Republican Party. But what was once off the wall now is "mainstream." It is the promise of the extreme Republican Party—a return to Herbert Spencer's Social Statics and the Lochner Era. A return to the era when minimum wage laws violated "liberty of contract." A return to when the national government (or state governments for that matter, compare Lochner to  Nebbia ) could not enact civil rights laws, or environmental laws, or laws regulating insurance companies.

This is who the extreme, radical Republicans are and this is what they want. Will wrote:

if Obama wins he may be able to create a liberal majority; if Romney wins he may be able to secure a conservative majority for a generation.
Will is right. And that's why the most important progressive project of this election is the reelection of President Barack Obama. If he is defeated, the Republican project to a return to the Lochner Era will be full speed ahead. The return of Social Darwinism will be the order of the day.

Nothing can be more important to the progressive project than stopping this attempt to "unconstitutionalize" progressive government. For if the Supreme Court declares a return to the Lochner Era, every progressive value we cherish will be in the most severe jeopardy.

In his famous dissent in Lochner v. New York, Oliver Wendell Holmes wrote:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. [...] The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [...]

I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

Justice Holmes's view of the Constitution eventually prevailed in the late 1930s New Deal jurisprudence. President Franklin Delano Roosevelt's 1937 Constitution Day speech (authored by Felix Frankfurter) eloquently expressed our progressive view of the Constitution:
In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance.

Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. We did not need to have a Civil War to recognize the constitutional power of Congress to levy taxes upon those most able to pay. We did not need twenty years of exploitation of women's labor to recognize the constitutional power of the states to pass minimum wage laws for the protection of women. Those were unwarrantable costs in restoring to the governments of both the nation and the states powers for action which the Constitution itself had not denied them. Nothing that possibly could have been gained by delay can justify such a price. We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. If wise reform is delayed too long, resentments, grievances and injustices accumulate to such a degree that orderly, wise reforms are rendered impossible and unreasonable and forcible measures in one form or another come to prevail. Time is vital in statesmanship, and orderly reforms, too long delayed or denied, have too often in modern history jeopardized peace, undermined democracy, and swept away civil and religious liberties.

These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. I ask you laymen for whom George Washington and Benjamin Franklin spoke at Philadelphia 150 years ago—look into the simply worded Constitution which I hope is in your hands tonight. Read it in the light of our history and in the light of its expressed purpose—to form a more perfect union and provide for the general welfare.

Then see if you can find anything in it which says that the government of the nation cannot help the one-third of its population engaged in national agriculture to stabilize their national market.

See if you can find there anything which says that the government of the nation cannot require a system of pensions for the vast army of railway employees on whose vigilance and well-being rests the safety of everything and everyone moving on the great railway systems.

See if you find anything that says the government of the nation cannot help to reorganize the sick coal industry which operates in so many states of the Union and provides the motive power for national industry and transportation.

See if you can find there anything which forbids the government of the nation to regulate the unholy practices of the great network of public utility holding companies which, admittedly, have proved too powerful for State regulation.

See if you can find there anything which forbids the government of the Nation to apply every resource of science to the development of a great river basin, to improve its water transportation, to end its floods, to conserve its natural resources, to demonstrate the potentialities of electricity, that greatest servant of democracy.

I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things.

They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. When the framers wanted to be specific, they could be specific. They forbade titles of nobility and attainder of blood, for instance, in no uncertain terms. But when they came to the great areas of governmental action, they used vagueness and silence as conscious instruments for the flexible statesmanship of the future, as they had used explicit denial as a guarantee of the observance of what to them were eternal verities unaffected by time and circumstance. [...]

It is a well-known saying that men are subdued by the medium in which they work. And men whose daily work is the nice use of language in conveyances and contracts and legal instruments of every variety, where the rules of the game provide that nothing is included in the scope of the document unless expressly mentioned, instinctively forget what the statesmen of 150 years ago at Philadelphia and the statesmen of their own profession did not forget—that a Constitution is a great instrument of government—not a conveyance, not a contract, not even a statute. That is why when a great lawyer does triumph over his absorption with words and with the limited outlook of individual interests—when he adds vision to his technical skill, then he is a statesman indeed.

The most important sentence ever written by Chief Justice Marshall is a part of the opinion in which over one hundred years ago that great Chief Justice established the constitutionality of the legislation which saved the banking system of this country in 1933 and insured the safety of your deposits for the future. In that opinion Marshall, who had fought through the Revolutionary War and had experienced all the difficulties of his generation in the founding of a nation, admonished those who would narrowly limit the great document to remember "that it is a Constitution we are expounding."

 And the modern Marshall—Mr. Justice Holmes—who like Marshall had seen the price paid on the battlefield to establish a nation, elaborated the thought of Marshall in these memorable words: "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610 (1914).... "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Missouri v. Holland, 252 U.S. 416, 433 (1920).

Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government makes all the difference in the world.

In the last 25 years government, State and Federal, has struggled particularly hard to utilize the powers given them under the Constitution to create economic conditions under which the great mass of people would feel convinced of justice and security. Those efforts have included attempts at establishment of minimum wages and maximum hours, prohibition of child labor, encouragement of the unionization of labor, reasonable stabilization of farm and industrial markets, conservation and development of natural resources, regulation of utilities and of other public businesses in private hands. Consistently the lawyers representing those interests wishing to block such efforts have invoked the Bill of Rights to protect their clients. Until last spring, for instance, they had argued successfully that it interferes with the freedom of a charwoman to work if an employer is not permitted to underpay her. And until last spring they had argued successfully that it interferes with the property of an employer to refuse him the right to discriminate against an employee who joins a union, while at the same time large corporations were indulging in espionage to root out union workers, as outrageous in essence as any search and seize prohibited to government.

I have often wondered whether those interested in the realistic protection of the individual and of minorities against intolerance and arbitrary power appreciate the danger to minorities of such perverted applications of great constitutional provisions. For unless government can succeed in creating conditions under which the great mass of people do feel convinced of justice, economic security and ample scope for human dignity, that tolerance of differences and that general concern for fair play which are the real protection of the individual and minorities will disappear. As a practical matter that tolerance and that concern rest only in small part upon legal formulas. Far more importantly they are the natural reflection of magnanimity of spirit in the masses which in turn depends upon generally distributed well-being.

No one cherishes more deeply than I the civil liberties achieved by much blood and anguish through many centuries of Anglo-American history. No one is more zealous that the safeguards they write into the Constitution be scrupulously and undeviatingly observed in spirit as well as in letter not only by government but by all those who wield a private power comparable to that of government.

But we should be deaf to the teachings of history and the admonitions of other lands if we do not recognize that civil liberties and non-discrimination against minorities can long be maintained only in a contented society. [...]

More and more the guarantees of civil liberties to which minorities have looked in this country for protection available in no other land depend for real effectiveness upon the full usefulness of the affirmative powers given to government to safeguard the life of the nation.

The men who signed the Constitution 150 years ago were fundamentally much more realistic about these things than we are today.... To them the protection of civil rights was not a platform for politicians nor a breastwork for corporation lawyers. For those rights these men or their fathers had come to the new country when it was not a comfortable country to come to. And to vindicate those rights these men themselves had written the Declaration of Independence and had fought a war. Freedom of speech, freedom of religion, freedom from unreasonable searches and seizures, and a fair trial for the humblest accused—sacred from attack not simply from tyrannies and oppressions which they had known and experienced but from whatever forms of tyranny and oppression the evil ingenuity of intolerant men might devise—were at the very top of their thoughts.

And yet when in the midst of such economic chaos as we faced in 1933, they came to write the Constitution, their first concern was not with written guarantees of these civil rights but with the formation of a government strong enough to bring economic order and economic security to the land. There was no Bill of Rights at all in the Constitution as it was first signed 150 years ago tonight. The Bill of Rights was added a year later by the first Congress as the first ten amendments.

We profited by the spelling out of those rights which for them were so fundamental as to require no literal spelling out. But it is significant that in their judgment the first thing they felt they needed, to preserve the liberties for which they had fought, was a central government, strong enough to avert economic chaos. They knew that guarantees of tolerance written on parchment were nowhere near as important as guarantees written in the hearts and the character of the American people so long as those hearts and that character were not embittered by economic distress.

Tolerance and concern for fair play are virtues which do not flourish in the stony soil of economic want and social distress. They are flowers that grow only when nurtured by a fertile soil and a warm sun. And none of us to whom the protection of minorities is a daily concern can have any illusions that in a world of aggression and of sudden and imperfectly understood economic disruptions no minority has any assurance of tolerance and fair play unless by the affirmative use of governmental power we succeed in this generation in collaborating with the private processes of economic enterprise so as to enable every class of our society to live at least on a level of civilized decency. Those of us whose circumstances have been cast in fortunate lots are too prone to bear with fortitude the hardships of a goodly portion of our fellow countrymen and women.

There is a group which—either in secret despair that inevitable calamity can be averted or in reckless ignorance of the day-to-day problems of those who are not lost to fear—would deny the government powers it needs to protect us and ask it to make bricks without straw. To such people, misinterpreters of the Constitution seem fortunate allies indeed.

Happily the great mass of the American people have lost neither their courage nor their common sense. And the framers of the Constitution, who had the greatest courage and common sense in history, have left us instruments with which we can use both. Their handiwork did not shackle us. They left us free if we will use all of the Constitution they bequeathed to us Their legacy was the wisdom which they embodied in the Constitution and that included the opportunity and the right to draw upon such wisdom as each generation can summon to the problems each generation has.

The Bill of Rights is precious to all of us. The reserved powers of the States to deal with matters of purely local concern are also precious. But the great affirmative grants of power to a strong national government democratically responsible to all of the people, is no less precious—for without such a national government, civil liberty and states' rights would have scant chance of survival in the modern world. Let us give our allegiance not to a part but to the whole Constitution. The exercise of the whole Constitution is the real way to guarantee the effectiveness of every part of it.

The perennial conflict of American history and the conflict of today centers around the way you look at the Constitution, whether you look at it through the narrow eyes of the partisan lawyer, whether you invoke the whole of the Constitution or only that part of it which seems to serve the purposes of certain limited interests in the nation which from time to time seek to appropriate the Constitution as their special shelter. This is the controversy that has cut athwart every effort of American society to adjust itself to new circumstances. For this is the question which concerns not the expedience of legislation, not the application of the method of trial and error in solving new difficulties; this is the problem that challenges the power of statesmen to find solutions. It touches the very existence of government. The misinterpretation of the Constitution is a fortress which democracy on the march simply cannot afford to leave untaken on its flank or in its rear.

We shall hold to this true course; we shall be most loyal to our history and most reverent to the framers of the Constitution if we view it as the great interpreters have always viewed it, as Marshall viewed it, as Holmes viewed it

Thus only will we be true to the avowed purposes of the Constitution itself—"to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity...." [Emphasis supplied.]

This is the vision we are fighting for. This is the vision that the reelection of President Obama can help to preserve. It is our most important fight this year.
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Comment Preferences

    •  Dread Scott indeed. This is the color of Roberts' (15+ / 0-)

      court. What a total disgrace! Citizens was insanely expanded in the worst decision in modern history, especially because the result is perverted justice for all Americans! Every one of us!

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

      by leftyguitarist on Sun Jun 24, 2012 at 08:42:24 AM PDT

      [ Parent ]

      •  If Obama loses the GOP could appoint... (18+ / 0-)

        two or three new judges.  That would create a conservative judicially activist block of seven or eight now, and 5 or more  that could be in power for decades.

        Say welcome to American Fascism if the GOP wins in November.

        "The right to be heard does not automatically include the right to be taken seriously." -- Hubert H. Humphrey

        by Candide08 on Sun Jun 24, 2012 at 08:51:43 AM PDT

        [ Parent ]

        •  that might frighten me more if (2+ / 0-)
          Recommended by:
          shaharazade, 3goldens

          the Obama Administration was not currently arguing positions before the Supreme Court in a number of areas that are identical to the positions that were argued by the Dubya Administration.

          •  And a Romney administration would improve this (15+ / 0-)

            picture how?

            •  it won't. but it also won't make it any worse. (0+ / 0-)

              When both parties argue the same things, it doesn't matter who the judge is, or which party is making the arguments.

              •  It could make it worse. Much worse. Way worse (26+ / 0-)

                Think of Robert Bork on the court.  There could be more right wing activists than that in line for appointment.  

                The sort of lawyers that go straight from law school to the upper floors of corporate law firms, who defend corporate interests and become distinguished in doing so, those are the people likely to get appointed to the Supreme Court and to the federal benches that the executive branch oversees.  

                The entire judiciary could become a solid pro-corporate block.

                To say that it could not get worse is just amazingly naive. There is a much worse scenario and it may just become a reality.

                hope that the idiots who have no constructive and creative solutions but only look to tear down will not win the day.

                by Stuart Heady on Sun Jun 24, 2012 at 09:29:47 AM PDT

                [ Parent ]

                •  "There's no difference between Gore and Bush." (19+ / 0-)

                  Same kinda thinking.  We're not going to get anyone as progressive as we'd like, but saying it doesn't matter who the judges are is, as you say, incredibly naive.

                •  And it would convince the democratic party that (4+ / 0-)
                  Recommended by:
                  3goldens, boophus, Mistral Wind, vcmvo2

                  they have to become even more right-wing to win elections.

                  To some extent, the USA would start to resemble Germany 1934, and liberals would eventually be targeted for ruination, disenfranchisement and discrimination in the Romney America.

                  Give this new breed of republican all the power and you ain't seen nothing when it comes to authoritarianism American style.

                  Romney - his fingernails have never been anything but manicured.

                  by Pescadero Bill on Sun Jun 24, 2012 at 09:58:24 AM PDT

                  [ Parent ]

                  •  Well Look For Me To Switch Teams Then (1+ / 0-)
                    Recommended by:
                    NM Ray

                    Since 2004, my 80 year old Republican mother has wondered why I've been dragging around books like "They Thought They Were Free" and "Rise And Fall Of The Third Reich" and "Mein Kampf" even though I am a hard core liberal and made them listen many rants about the drift of the GOP into Fascist cliches.  

                    I told her that I see the country entering a a 20 year period of violence, hunger, poverty, illiteracy, and disease under GOP rule, and that I am ready to embrace the darkness of their vision. Heck I might even join a church to really wallow in it, since they are close to acknowledging their "faith" has degenerated to straight political propaganda. . There may even be good job opportunities since they are neck-deep in retards and my need someone with more than one firing brain cell.

                    Surprisingly after a decade of not wanting to hear me say these things, my mom was like "I get it. I'm too old to care, but you do what you need to survive." She finally understands that the GOP has become a neofascist party.

                    There’s always free cheddar in a mousetrap, baby

                    by bernardpliers on Sun Jun 24, 2012 at 12:17:24 PM PDT

                    [ Parent ]

              •  Oh, sure it would (6+ / 0-)

                Look at all the state legislatures that were taken over by Republicans.   Anti-gay, anti reproducitve rights are being pushed.

                No need to speculate--just look at what is already happening.

              •  I'm so tired of this (8+ / 0-)

                "Obama and Romney are the same" BS argument.  Explain to me, if they're the same, why are the republicans willing to spend billions to defeat him?

                Obama is not a dark-skinned anti-war socialist who offers free healthcare. You're thinking of Jesus.

                by DMiller on Sun Jun 24, 2012 at 09:33:07 AM PDT

                [ Parent ]

                •  (sigh) I didn't say "Bush and Obama are the same" (0+ / 0-)

                  I said "The Obama Administration [is] currently arguing positions before the Supreme Court in a number of areas that are identical to the positions that were argued by the Dubya Administration."

                  That is a simple fact.  period.  Whether you like it or not, it is true. You can argue that it's OK, you can argue that it's not OK, but you CAN'T argue that it's false.


                  May 30, 2009 10:09pm
                  Obama Justice Department Continues Bush’s ‘State Secrets’ Argument…Again

                  In a court filing submitted in the middle of the night, President Obama's Justice Department is continuing the "state secrets" argument of his predecessor in litigation over the National Security Agency's Terrorist Surveillance Program.

                  •  Lenny, you're taking a handful of cases, if ... (6+ / 0-)

                    ... that, and going to HUGE conclusion that IF the two sides argue the same thing, then which adminiration makes the next nomination to the Court doesn't make a difference.

                    Do you really believe that?

                    [We can argue the collective importance of that handful of cases and I'll point out one or two (DOMA comes to mind) where the administration refused to support a case that precedent almost demanded it argue for.]

                    You are hanging a major conclusion on a pretty slim reed. Much as you dislike a few of the positions this administration takes on case-by-case, not caring whether there are more than five justices to make such conservative decisions and write such sweeping opinions, is pretty silly, isn't it? Or am I missing the gist of your comments?

                    Obama and strong Democratic majorities in 2012!

                    by TRPChicago on Sun Jun 24, 2012 at 10:53:07 AM PDT

                    [ Parent ]

                    •  you're reading far more into my statement (0+ / 0-)

                      than you should.

                      I'm simply pointing out that the whole "they'll get to set the Supreme Court" argument would scare me a lot more if both parties weren't making the same arguments to that Supreme Court (and for a handful of cases, they cover some pretty major points).

                      Just like the whole "we passed health care reform!!" argument might actually mean something to me if it wasn't the same health care program as theirs.

                      But then, the whole "lesser of two evils" argument never impressed me very much anyway.

                      •  Well, you were responding to a comment ... (0+ / 0-)

                        ... of someone who was concerned that a GOP win could allow appointing two or three more justices.

                        So it wasn't too hard to read your comment as a disproportionate reaction to positions the administration took on a handful of cases. That, I expect, is why so many of us disagreed with your comment. Not that we weren't also disappointed with that handful of cases or that we didn't share your concerns, but that having even one more rankly conservative justice wouldn't scare us as much.

                        That would scare the hell out of me. And I'll take a second Obama term no matter how much more I wish he'd hewed to Progressive issues and outcomes.

                        Obama and strong Democratic majorities in 2012!

                        by TRPChicago on Sun Jun 24, 2012 at 01:42:44 PM PDT

                        [ Parent ]

              •  Just like Bush II wasn't worse than Gore? (4+ / 0-)
                Recommended by:
                orlbucfan, boophus, vcmvo2, JayBat

                Wasn't that what Nader argued?

                Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

                by coral on Sun Jun 24, 2012 at 09:41:13 AM PDT

                [ Parent ]

              •  When both argue for the same thing?? What are you (2+ / 0-)
                Recommended by:
                spritegeezer, NM Ray


                The argument is not the principal problem.  The "bought and paid for" attitude of Justices Scalia and Thomas is very distrubing.

                They DON'T EVEN ATTEMPT TO HIDE THEIR BIASES.  The biases are out there for anyone with eyes to see.

                Thomas's wife is a right wing zealot who runs an advocacy group.

                Scalia goes hunting with litigants like Dick Cheney while the case is before the Supremes.

                The Supremes take the position that conflict of interest rules that apply to all other Federal judges have no legal force as applied to them, and that their "discretion" controls.

                How much more blatant do you need it to be before you "get it"?

                "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

                by BornDuringWWII on Sun Jun 24, 2012 at 02:21:08 PM PDT

                [ Parent ]

              •  Not any worse (0+ / 0-)

                unless you care about reproductive choice, marriage equality and the environment.

        •  That could change us from a democracy to an (7+ / 0-)

          complete corporatocracy with peons and masters. Is this the revenge of the southern rebels?... an excursion around all the human and moral progress back to a feudal land where the rich and powerful can simply decide life or death for all others as they legalize any method and any laws to allow them to use others like livestock... Will we be happy in feedlots and cages.

          This has been my theme for over a year ... its the Supreme Court... No matter how disappointed we are with the progress President Obama has made, he is our last defense against a resurgence of the mentality and morality that allows slavery. Isn't it ironic that it is a black man who is our best hope to keep most of us out of corporate slavery and breeding programs...

          There is a resurgence of the despots who are now not fighting just for the right to make thier own laws at city or county or state  but to make them at the federal level so that overturning thier pulling us back to medieval evil will be near impossible. Does anyone think that the laws the rethugs are attempting to restrict voting won't be approved by this corporate owned court? Does anyone really think that discriminatory laws won't be found constitutional if they benefit the rich and powerful?

          They can use power words for what they want to bring about anything but it is literally slavery to the corporations and the rich. We have a man who is extremely wealthy backed by the extremely wealthy outright saying he wants to be elected to cut his own taxes while he raises taxes on the middle class to destroy it... and fools can not see this.

          This SC is full of RW corporate lackeys .

          How can you tell when Rmoney is lying? His lips are moving. Fear is the Mind Killer

          by boophus on Sun Jun 24, 2012 at 11:48:45 AM PDT

          [ Parent ]

          •  Excellent summary. (2+ / 0-)
            Recommended by:
            spritegeezer, leftyguitarist

            Scary, but on target.

            I find just a bit of irony in the "southern rebels"  coming from an agricultural society now being the tool to attempt to lock-in a corporatocracy.   Gutting the department of education surely will help.

            From a purely ruthless, strategic POV the GOP has devised a series of actions that will be hard to defeat.

            "The right to be heard does not automatically include the right to be taken seriously." -- Hubert H. Humphrey

            by Candide08 on Sun Jun 24, 2012 at 11:55:40 AM PDT

            [ Parent ]

          •  Republicans=Confederates. I've been saying that (1+ / 0-)
            Recommended by:
            NM Ray

            for a long time. They have zero credibility, don't deserve any respect, and most of their leaders are tyrannical evil powerful men, just like the confederates. The question is, why do so many Americans support the Confederacy?

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

            by leftyguitarist on Sun Jun 24, 2012 at 07:37:53 PM PDT

            [ Parent ]

      •  The results of Citizens United have shown that (1+ / 0-)
        Recommended by:

        in the Conservative "World" while "All animals are equal,...SOME animals ARE MORE EQUAL than others"!  

        And just like the mind-controlled, clueless animals of Animal Farm, working class people who support ReTHUGlican and Corporatist policies are responsible for their own undoing.

        Robber Baron "ReTHUGisms": John D. Rockefeller -"The way to make money is to buy when blood is running in the streets"; Jay Gould -"I can hire one half of the working class to kill the other half."

        by ranton on Sun Jun 24, 2012 at 03:16:47 PM PDT

        [ Parent ]

    •  The 12/9/00 B v. G stay was when the worm turned (28+ / 0-)

      I still recall chuckling to myself as I read the FL Supreme Court decision on 12/8/00.  That decision was clearly cloaked in state law by design.  I figured it was bulletproof from federal challenge, and the 11th Circuit, w/ its 8-4  GOP majority, wouldn't touch the case.

      The stay of the count entered a day later was effectively a decision on the merits.  In fact, Gore was already picking up votes in Orange and in Lake Counties at the time that the stay was issued.  Scalia's opinion supporting the stay made his motivations clear:

      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. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires
      The Stevens dissent higlighted the true audacity of the stay:
      To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.
      Deciding a disputed presidential election by judicial fiat was an unprecedented assertion of raw political power that violated basic principles of federalism and judicial restraint that purportedly underlay the judicial philosophy of the 5 member majority.   Once that line was crossed in 12/00, it was easy to cross it in future decisions.

      3 of the 5 members of the B v. G majority are still around, and Roberts was part of the Bush legal team.  They have the power, they used it in Citizens United, and they used it again in the SEIU case this past week.  They'll use it in the MT case, and they'll sure as hell use it on the ACA case.

      While I'm not ready to say that we're going back to the Lochner era, it is obvious that we have a highly politicized Court that has no qualms about asserting itself via 5-4 decisions.  The invididual mandate was probably always a lost cause w/ this SCOTUS.  I still don't understand why there was no severance clause in the bill and why there was not a vigorous argument on severability by the WH.

      W/ all due respect to Prof. Amar, the nature of the contemporary Supremes was established 11.5 years ago.

      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 Sun Jun 24, 2012 at 08:48:13 AM PDT

      [ Parent ]

      •  I quite agree (9+ / 0-)

        Bush v Gore was the moment when we lost all semblance of an independent judiciary in the US, and gained just another partisan battleground.

        It is something we all will come to regret in the future. When "checks and balances" are dependent upon partisan whim, there are no longer any checks or balances. And that road always leads to the same place.

        •  And what was the response of the American (8+ / 0-)

          people to Bush v Gore?

          We rolled over.

          When do we stop rolling over?

          We get the government we deserve.

          •  R_O_M_N_E_Y (1+ / 0-)
            Recommended by:

            Mitt Romney is making it Clear.

            He is offering the WORST Government that MONEY can BUY!

            "As long as Corporations control Government, there is no reason for Government to regulate Corporations!" John Roberts, Citizens United (SNARK)

            by NM Ray on Sun Jun 24, 2012 at 09:31:57 AM PDT

            [ Parent ]

          •  Occupy gave me hope (4+ / 0-)
            Recommended by:
            cpresley, 3goldens, nyceve, investorb

            But Occupy too has shrunk to just a shadow of itself.

            Inevitably, of course, something will happen. Even the darkest of times don't last forever. And the future does not look very bright for the "conservatives"--they have lost most of the younger generation, simple demographic change in the US will cripple them, and the bottom line is that even dictatorships can only survive if they bring home the goods--and we're not getting any goods.

            It's just a matter of time till they over-reach and destroy themselves.  All ideologues do that eventually.

            But it will be a rough ride in the meantime.  :(

          •  I don't think we get the government we deserve (6+ / 0-)

            That's too facile an argument. We did elect Obama. Though his administration has been far more conservative than many of us on the left would like, it was a momentous landmark in American history. He won a great victory. The right is hugely funded, and they struck back with fury, organization, and money.

            The fact that some health care legislation has been enacted was extremely important. If the Supreme Court leaves any of the bill intact, it will be an advance...not anywhere near what ordinary Americans need, but some lives will be saved, some misery averted.

            Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

            by coral on Sun Jun 24, 2012 at 09:48:27 AM PDT

            [ Parent ]

          •  Gore rolled over. We took our lead from him. (2+ / 0-)
            Recommended by:
            RFK Lives, nyceve

            He should have kept fighting.

            We rarely get the government we deserve, we almost always get a worse government than we deserve.  Saying we 'get the government we deserve' is saying that we 'deserve' to have the healthcare fiasco we live in currently, that people 'deserve' to wind up being diagnosed at stage 4 cancer because our government won't treat healthcare as a human right.

            •  Goopers took to the streets in 12/00--Dems didn't (7+ / 0-)

              Recall the crowds outside Gore's residence chanting: "Get out of Cheney's house?"  Broward is one of the country's bluest counties, yet there were massive demonstrations outside that courthouse, but no Dem counter-demos.  Will anyone ever forget the Brooks Bros Riot in Miami-Dade?  Since I know one of the judges who cut and ran then, I sure as hell won't.

              Dems played way too nice then, and they never learned from that experience.

              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 Sun Jun 24, 2012 at 10:09:17 AM PDT

              [ Parent ]

            •  Gore took a bullet for the nation (6+ / 0-)

              as Bob Herbert said... and stepped down so as to keep all-out hell breaking loose.

              But, I'd say that if he could do it all over again... he'd fight to the death this time. It's better to die on our feet than to live on our knees.

              And I'd say that the phrase, "Who could have known?" is applicable to the 2000 election. The Democratic Party and its leadership were blindsided by the corrupt coup d'etat waged by the Republicans and their minions.

              In my honor he pulled out old forgotten dignity and walked straight in a crooked world. ~~poetry of young Barack Obama

              by bronte17 on Sun Jun 24, 2012 at 10:13:08 AM PDT

              [ Parent ]

              •  All hell should have broken loose (1+ / 0-)
                Recommended by:
                RFK Lives

                Actually it did.  It broke loose on Iraq and our own military members and veterans. It broke loose on us in the form of the Patriot Act and other legal shenanigans designed to keep us skeered and civil liberty-less.  Gore should have stood up for all of us.  He made the wrong call.  

                Shine like the humblest star.

                by ljm on Sun Jun 24, 2012 at 10:28:50 AM PDT

                [ Parent ]

                •  The buck stops with Gore, of course. (3+ / 0-)
                  Recommended by:
                  Joan McCarter, RFK Lives, JanL

                  But, you had Warren Christopher and his "softness" and Joe Lieberman's betrayal (of us and our military AND his Party).

                  And the SCOTUS betrayal of their country and the sheer audacity to tell the judicial system "you don't get to use our precedent again, it's a one time thing just for us" will mark those schlubs on that Rehnquist Court for all time as the partisan tools they are.

                  We've walked through hell and brimstone since that time, so hindsight is a bitter reflection of what should have been done to alter the landscape, but wasn't. And the ache is a huge chasm on our psyches.

                  So, we don't want that again. That means fight like hell.

                  In my honor he pulled out old forgotten dignity and walked straight in a crooked world. ~~poetry of young Barack Obama

                  by bronte17 on Sun Jun 24, 2012 at 10:40:05 AM PDT

                  [ Parent ]

                  •  Gore was the guy who (1+ / 0-)
                    Recommended by:

                    wanted to lead the nation.  He won the election.  None of those other guys were elected.  It doesn't matter if it was Al Gore or Bart Simpson.  They guy who won the election and wanted to lead the nation, should have done so.  It's not about hindsight.  I'm old enough to have a good idea about what was coming with Dick Cheney.  Al Gore should have known as well.

                    Shine like the humblest star.

                    by ljm on Sun Jun 24, 2012 at 12:21:37 PM PDT

                    [ Parent ]

          •  I dunno (0+ / 0-)

            It is possible to be outgunned.  Look at what happened to the OWS protesters.  There really has to be another way to protest without getting your head bashed in or tear-gassed while you quietly sit on the ground.

            Shine like the humblest star.

            by ljm on Sun Jun 24, 2012 at 10:35:34 AM PDT

            [ Parent ]

      •  Probably because the law doesn't work (6+ / 0-)

        With a severance clause and they knew it. Furthermore, why make the 5-4 judicial activist's job any easier by pointing them to how they can undermine it?
           I couldn't agree more, btw, that the nature of the conservative supremes  was established - I would say 'made obvious' - by Bush v. Gore, although if you read Professor Dershowitz, it was present even before that.  

        An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head. -- Eric Hoffer

        by MichiganChet on Sun Jun 24, 2012 at 09:18:09 AM PDT

        [ Parent ]

        •  Yes it was (0+ / 0-)

          When Nixon put Rehnquist of the SCOTUS, a guy who defined strict constructionist judge to mean (according to John Dean who found the memo in the WH where he wrote it) "a judge who never finds a civil rights plaintiff over a defendant he likes or a defendant over a prosecutor."  That's the very definition of a biased judge.  For his bias, he got to be chief justice.  He got to pass "Go" and collect $200.  He didn't get sent to "jail" in the form of an impeachment.  How many biased judges have ever been impeached?

          Shine like the humblest star.

          by ljm on Sun Jun 24, 2012 at 10:33:17 AM PDT

          [ Parent ]

          •  Just one, and he wasn't removed (0+ / 0-)

            Samuel Chase, in 1805. He got off for a number of reasons, IMHO not least because he was a Signer of the Declaration of Independence and it would not only be "unpatriotic" to remove him, it would be a political black eye the fledgling United States could not afford. (Also, possibly, because some Senators hated him too much and bent over backwards to be "fair" - a flaw in the American character that persists to this day.)

            If it's
            Not your body,
            Then it's
            Not your choice
            And it's
            None of your damn business!

            by TheOtherMaven on Mon Jun 25, 2012 at 10:15:32 AM PDT

            [ Parent ]

      •  Agree (0+ / 0-)

        I'm not sure where we go from here.  The Supreme Court has shown itself since B vs. G to be shameless in their willingness to act as political agents of the republican party.   They hate equal protection, but that was their basis for stopping the vote.  They doubled down on their shamelessness when they said their decision could never be considered precedent for any future cases.  

        When the ACA goes down, they will be throwing out their entire case law regarding congresses authority to regulate interstate commerce.  There are no serious arguments that congress does not have the authority to take this action.  

        I think the best thing the dems can do is win elections and continue to call out the court on every outrageous decision it makes.  It won't make a difference for most voters, but you have to continue to fight.   Elections really do matter.

        I would like to ask Bill Clinton if he has ever felt responsible for the Roberts court?  if he keeps it zipped in the oval office, Bush loses Florida by a margin that the SC could not have stolen.

    •  Has anyone noticed that in that photo (1+ / 0-)
      Recommended by:

      the umpire would be correct to call a strike because the batter swung on the pitch?  That pretty much matches my sense of this case: bad ump, but batter error.

      Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

      by Seneca Doane on Sun Jun 24, 2012 at 10:40:54 AM PDT

      [ Parent ]

    •  Three Of The Five Worst SCOTUS Decisions (0+ / 0-)

      Were roughly in the last 20 years or so

      Citizens United is horrible, but it's not as bad as Bush v. Gore or US v. Leon.

      For those not familiar with Leon, which was a Scalia decision, it involved an invalid search warrant which somehow magically became valid because the police had a good faith belief it was valid. When you have reasoning like that, who needs a 4th Amendment?

      The right wing on the 4th is purely results oriented (well, they had the contraband, didn't they?), ignoring the intent of the Founding Fathers who intentionally set up a system of justice where sometimes a guilty person gets off free as the admission price for not convicting an innocent man.

      Moreover, the most outrageous thing about cases like Citizens United is that our judicial system at least in theory, is to protect minority interests. I never realized the Fortune 1000 was an oppressed minority needing protection by the judicial system.

  •  Well... (17+ / 0-)

    ...when you go out to the grocery store and can buy broccoli of your own free will, and without coercion by authoritarian federal government dictates, I guarantee you'll see the light and praise Scalia in the produce section. And then you'll see a few grocery clerks without health insurance stocking potatoes. You should tell them about your freely-bought broccoli.

    it fitfully blows, half conceals, half discloses

    by Addison on Sun Jun 24, 2012 at 08:07:49 AM PDT

  •  That JRB opinion is really breathtaking (9+ / 0-)

    What, again, are we doing with that dry powder we reserved by allowing her confirmation? (I use "we" advisedly, as it's pretty clear that the people who made that decision don't have their interests well-enough aligned with ours, in large part because they do not fear us.)

    Ok, so I read the polls.

    by andgarden on Sun Jun 24, 2012 at 08:08:43 AM PDT

  •  an independent non-ideological judiciary is (8+ / 0-)

    an absolute requirement for any functional democracy.

    Sadly, we no longer have one. Our courts have become agenda-driven partisan playgrounds just like the rest of government.

    That will be our legacy to future generations.  And they will hate us for it.

    •  False equivalency (2+ / 0-)
      Recommended by:
      bronte17, vcmvo2

      I'd suggest that one should be careful how one expresses that thought.  It's not a "both sides do it" situation, any more than what's been going on in the US Senate is.

      Grab all the joy you can. (exmearden 8/10/09)

      by Land of Enchantment on Sun Jun 24, 2012 at 09:02:57 AM PDT

      [ Parent ]

      •  um, I didn't say anything about "both sides did it (0+ / 0-)

        Indeed, if you look down a bit further in the comments, you'll see a cite a very specific instant, and a very specific side, when it happened.

        •  Perhaps not explicitly (1+ / 0-)
          Recommended by:

          But it can be read implicitly in what you said.

          Our courts have become agenda-driven partisan playgrounds just like the rest of government.
          False equivalency, IMO, is one of the most important message concepts to amplify out to the world these days.  I'm pretty sensitive to anything that doesn't alertly repudiate it at every opportunity.

          Put another way:  People who routinely engage in false equivalencies - who believe in them - wouldn't have any reason to disagree with your remarks.

          Grab all the joy you can. (exmearden 8/10/09)

          by Land of Enchantment on Sun Jun 24, 2012 at 09:18:06 AM PDT

          [ Parent ]

          •  Aren't you (0+ / 0-)

            politicizing the situation in regards to the court here? If equivalence had not been given to the political hard line right,  and the 'free market' interpretation of the constitution had not been adopted by both parties as the way forward we would not be in this by-partisan  pickle. The current Democratic party has eschewed the New Deal and given the likes of Scalia and Roberts legitimacy.  

            False equivalence is not a 'message concept' that you can use when under the guise of by-partisan and free market ideology the basic democratic concepts of the constitution and our democracy that FDR spoke about are being dismantled . Holding the line for the future by electing a Democratic administration that not only gives equivalence to this abhorrent anti-democratic ideology and interpretation of the constitution but calls it the way forward is our only choice.

            Messaging away the heart of the matter with false rhetoric  is not even politically beneficial. People are well aware of the fact that the 'general welfare' or common good plays no part in either side's agenda at this time. You weaken that necessity for people to see the long term ramifications of giving the extremist practitioners of this ideology a majority on the court when you dismiss the grievances of those who see little difference with good reason.

            The case presented by Armando here takes it out of the realm of current partisan politics and gives people an overview of what's at stake. Why undermine this message by calling out people who care about progressive and democratic interpretation of our sacred documents for speaking up? Your repudiation requires people to believe false messaging and obscures what is really at stake here.

            Yes, both side's have brought us to this point, that is not a false equivalence. This does not mean that if the RW manages to win our side, the peoples side, will be 'unconstitutionalized'. You are undermining the need to convince progressives and anyone who believes they have no choice, that they can at least, hold the line and have a legal leg to stand on. This makes it easier for those of us who aren't buying this administrations rhetoric and messaging to hold our noses and vote.    


  •  Roberts was always going to do this (8+ / 0-)

    The real failure was getting that hack Alito on the court.

    In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

    by vcmvo2 on Sun Jun 24, 2012 at 08:18:23 AM PDT

  •  The US Constitution in the Robert Court (6+ / 0-)

    = a harsh, severe set of rules for the conduct of Social Darwinism and protection of oligarchic privilege in the U.S.

  •  We will see (4+ / 0-)
    Recommended by:
    annecros, devtob, cheerio2, 3goldens

    I doubt this law is going to survive - the polling on it gives the court a free pass in terms of the politics.

    We will regret not defending ACA with every fiber we had.

    Obama's polling now looks OK -but  in the end unless the economy generates some forward momentum I think the right is going to win.

    The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

    by fladem on Sun Jun 24, 2012 at 08:24:15 AM PDT

  •  The Constitution will always be reinterpreted. (5+ / 0-)
    Recommended by:
    ybruti, althea in il, shann, flavor411, wsexson

    That's sometimes a good thing (Brown vs. Board of Education) and sometimes a bad thing (Citizens United).

    But it's a lie to say the Constitution means anything more that what five people with lifetime appointments want it to mean.

    It's basically a political document administered by political appointees.

    "The disturbing footage depicts piglets being drop kicked and swung by their hind legs. Sows are seen being kicked and shoved as they resist leaving their piglets."

    by Bush Bites on Sun Jun 24, 2012 at 08:24:31 AM PDT

  •  If the mandate dies, then Raich must die as well (5+ / 0-)
    Recommended by:
    Pete Cortez, orlbucfan, twcollier, JanL, elmo

    If the SCOTUS invalidates the ACA's mandate on commerce-clause grounds, then I hope that before the end of this year, district court judges start dismissing federal marijuana-related prosecutions in states with permissive pot laws, on the ground that, after the SCOTUS' decision on ACA, Gonzales v. Raich is no longer good law because the Controlled Substances Act is an unconstitutional exercise of Congress' authority under the Commerce Clause.

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

    by MJB on Sun Jun 24, 2012 at 08:26:58 AM PDT

    •  Using the precedent set by Bush v. Gore (7+ / 0-)

      They may issue a ruling stating that the ruling cannot be used as a precedent in future cases.

      This is suggested tongue-in-cheek -- I think. With this court, who knows?

      On additional thought, am I actually questioning the legitimacy of the US Supreme Court? I certainly do not consider this court legitimate as an independent non-ideological source of legal decisions. They are politicians masquerading as Justices.

      The US Supreme Court has by its actions and rhetoric ceased to be legitimate. Whiskey Tango Foxtrot - over

      by Rick B on Sun Jun 24, 2012 at 08:51:42 AM PDT

      [ Parent ]

    •  Sadly, that does not follow (12+ / 0-)

      I agree with 99.3% of what Armando has written here, but the refusal to engage Randy Barnett's constitutional arguments is a mistake.  As I expect that we will see, they can't be waved away that easily, nor can the Obama Administration's stubborn and stupid insistence on making PPACA a vehicle to reclaim untrammeled authority to legislate pursuant to the Commerce power in autumn 2009 be undone or ignored.  They should have experimented with something less important.

      Yes, you can keep Raich and still overturn PPACA.  As Barnett argued, the cases are distinguishable and the latter is in relevant part one of first impression -- and that's as big of a fig leaf as an activist judge needs.  The public may not understand it and legal scholars may denounce it, but an adverse decision this week will not appear to be unprincipled.  I'd expect lots os quoting of the "this is not a tax" statements from 2009.  And trashing the whole bill instead of just the mandate and its later provisions is an even easier call.

      What should the Justices do?  If they properly follow their customs, they should ignore most of what the Obama Administration and Congressional Democrats said (including in court) about it not being a tax and they should uphold the law as an exercise of the taxing authority.  Functionally, the mandate is a tax, not a "tax penalty" (and Scalia will have lots of fun with that one this week), and it passes muster constitutionally as a tax.  For Congress to have used the wrong constitutional justification is not a good reason to spike the law.

      The problem is that the Justices don't have to do this.  This is how good, responsible judges act; this Court can literally say "oh, that's too confusing, it's too much trouble, it's Congress's job to get it right, let them do it over again."  It's morally and ethically wrong, and turning one's back on Court custom, not to come up with a reasonable way to uphold the law if a Constitutional way to do so is available -- but it's not actually wrong for a court to say "no, sorry, I'm not going to do this; you send it back to me in proper form and ask me again."  We're in a position where we have to come to the Court as supplicants, relying on their courtesy and kindness -- and that should never have been allowed to happen.

      Liberal legal thinkers wanted to reclaim the expansive power of the Commerce Clause more than they wanted to pass health care reform.  Democratic politicians wanted to avoid being accused of raising taxes more than they wanted to pass health care reform.  Business-friendly interests wanted to ensure that there could be no expansion of the right to health care insurance more than they wanted to pass health care reform -- which is why they argued against severability (making the Court's rejection of severability quite easy.)

      Our leaders' priorities were out of order.  We should have called this a tax from the very outset, swallowed the political harm (which would not have exceeded what we faced in 2010 anyway), and taken the policy win without fighting over the Commerce Clause.  We were gambling with people's lives.  Now we are left depend on the kindness of strangers to kindness.

      Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

      by Seneca Doane on Sun Jun 24, 2012 at 10:18:49 AM PDT

      [ Parent ]

      •  You are misreading Barnett's argument re Raich (1+ / 0-)
        Recommended by:
        Seneca Doane

        Barnett argued that Scalia could vote to kill the ACA and not be inconsistent with Scalia's concurring opinion in Raich.  (Example of Barnett discussing Scalia and Raich is at (scroll to the bottom).

        I realize that Scalia concurred separately in Raich and engaged in some judicial gymnastics in order to concur with the "anti-drug" judgment while not invoking the Commerce Clause.  But Scalia's opinion was not the opinion of the Court in that case.

        The opinion of the Court majority in Raich -- joined by Justice Kennedy -- absolutely relies upon Wickard and its very broad reading of the commerce clause.  This is from the majority opinion in Raich:

        Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128—129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. . . .

            Our decision in Wickard, 317 U.S. 111, is of particular relevance. In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained Congress’ power to regulate the production of goods for commerce, that power did not authorize “federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm.” Wickard, 317 U.S., at 118. Justice Jackson’s opinion for a unanimous Court rejected this submission. He wrote:

        “The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” Id., at 127—128.

        Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

            The similarities between this case and Wickard are striking.

        The fact that a decision invalidating the ACA might not be inconsistent with Scalia's concurrence in Raich is not very relevant.  

        What is very relevant is the fact that if the SCOTUS decision on the ACA enunciates a new reading of the commerce clause that is significantly more narrow than Wickard, then the legal underpinnings for the Court's opinion in Raich are gone, and by all rights Raich should then no longer be good law.

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

        by MJB on Sun Jun 24, 2012 at 04:27:59 PM PDT

        [ Parent ]

        •  You're presuming that there's nothing to the (0+ / 0-)

          "activity vs. inactivity" distinction, which was not presented in Raich and so far as I can tell was never raised in any case before.  I've argued that into the ground here and I expect that I'm going to be addressing it again tomorrow.

          We liberal legal scholars have convinced ourselves that it does not really matter, despite some dissenters like me, but I don't think we'll convince the public.  The distinction makes sense to people when they're presented with it.  We're ignoring that.

          Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

          by Seneca Doane on Sun Jun 24, 2012 at 10:42:31 PM PDT

          [ Parent ]

          •  Neither "activity" nor "inactivity" (0+ / 0-)

            appears in the constitution.

            And neither Wickard nor Raich involved "activity" that was "among the several states" ... one might say that both involved only interstate "inactivity".

            Of course, it's possible that the court that gave us Bush v. Gore will choose to use that newly-invented distinction, but that's just one of many possible forms of sophistry they might use in their results-oriented jurisprudence.

            But what do I know, I'm neither a judge nor a professor.

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

            by MJB on Sun Jun 24, 2012 at 11:04:01 PM PDT

            [ Parent ]

      •  In for a penny, in for a pound (1+ / 0-)
        Recommended by:

        If this Court is going to toss out three quarters of a century of jurisprudence to invalidate the ACA, I don't think putting in a tax instead of a penalty would have made any difference.

        Let's be honest here. Republicans (and that includes the ones on the Supreme Court) dislike the ACA for the same reasons they have historically disliked Social Security, Medicare and Medicaid.

        Social programs created by Democrats that actually help people tend to generate votes for Democrats. There's the real rub.

        •  They'd have had no basis even to bring the case (0+ / 0-)

          That's my problem with Armando's argument -- by rejecting the notion that there could be any jurisprudentially justifiable reason for such a decision based on the Commerce Clause, it simply invites a nihilistic response.

          In fact, though, unnecessarily putting all of our chips on the Commerce Clause is what allowed this case to go forward -- and there's no compelling reason to think that the Supreme Court would overturn PPACA without a reasonably well-sized fig leaf, which is what they now have to work with.

          The decision's not going to seem dumb to the average person.  Tragically, it won't.

          Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

          by Seneca Doane on Sun Jun 24, 2012 at 10:45:35 PM PDT

          [ Parent ]

  •  What strikes me about FDR's speech... (19+ / 0-)

    (besides the content) is the language used.  A modern politician, speaking at such a high level on such complicated matters would be labeled a liberal elitist!  And shunned!  We have dumbed down our world so much it is pitiful.  I blame television.  :)

    Great piece, Armando!  I feel as if I learned a great deal.

    Was a cold and dark December when the banks became cathedrals...

    by althea in il on Sun Jun 24, 2012 at 08:28:29 AM PDT

    •  What my grandmother said (2+ / 0-)
      Recommended by:
      devtob, JanL

      TV would be the ruin of our nation.

      •  Not it wasn't TV that was the ruination... (14+ / 0-)

        ...Several years back, I found a recording of the very first hour of CNN was 1980, when the network launched.

        It was telling.  It was an hour filled with hard news and serious international coverage, aimed at viewers who were assumed to be interested and engaged in the world around them and desiring to be informed about more than the latest celebrity gossip.

        And that's the version of CNN that became a dominant news channel in the nineties.  Quality journalism was offered...and the offering embraced by a share of the American public.  Similarly, the big three (ABC, CBS, NBC) had outstanding news departments for many years.

        I blame the massive consolidation and corporatization of the media combined with the massive fractionalization in terms of number of channels available.  It turns out that having 500 channels that are largely controlled by the same three conglomerates results in programming far inferior to what was offered on three channels in a much less consolidated world.

        So don't blame television.  Blame deregulation.

        Political Compass: -6.75, -3.08

        by TexasTom on Sun Jun 24, 2012 at 08:55:56 AM PDT

        [ Parent ]

        •  Indeed. TV is but a medium. A tool to be used by (0+ / 0-)

          those that own the ability to broadcast. They paint what information they want the public to see. It could as easily be used to honestly inform as dishonestly misinform.

          I'm pretty convinced there's been very much a sinister conspiracy to purposely dumb-down the populace by the concentrated owners that ability.

          Romney - his fingernails have never been anything but manicured.

          by Pescadero Bill on Sun Jun 24, 2012 at 10:47:27 AM PDT

          [ Parent ]

          •  Not necessarily a conspiracy (1+ / 0-)
            Recommended by:

            Good journalism is expensive, whereas chattering heads and mindless celebrity gossip are cheap to churn out in large quantities.  And back in the day, CBS, NBC, and later CNN were all run by people who did have some concept of public service, not just maximizing profits.  

            Does anyone think that the current management at any of the media conglomerates sees their companies as anything other than profit centers?

            Political Compass: -6.75, -3.08

            by TexasTom on Sun Jun 24, 2012 at 03:30:00 PM PDT

            [ Parent ]

      •  Then there is the followup (6+ / 0-)

        Putting news under entertainment and demanding a profit from it has been the ruin of TV. You can see that from the proliferation of reality (meaning cheap junk air time filler) shows and from the absence of news.

        But on the bright side, TV was the creator of christian broadcasting and of the national conservative movement .

        The US Supreme Court has by its actions and rhetoric ceased to be legitimate. Whiskey Tango Foxtrot - over

        by Rick B on Sun Jun 24, 2012 at 08:57:06 AM PDT

        [ Parent ]

        •  Throw in the American notion of "profit" (0+ / 0-)

          Here, profitability is defined as a ratio, which you can keep high by cutting costs.  You don't bring in more money, but you can pretend you are.  

          This link is an excellent piece at Forbes about how this type of thinking is destroying American innovation.  Because why bother spending money to put out a good product (and make more revenue), when you can just cut costs, put out shit, and make the same revenue (or less!), yet still be profitable.

          The future, that's why.  But good luck getting our management to think about the future.

          Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

          by nominalize on Sun Jun 24, 2012 at 04:57:43 PM PDT

          [ Parent ]

          •  Essentially that's managing the financial statemen (1+ / 0-)
            Recommended by:
            joe wobblie

            It's playing with numbers on paper and does not address what happens in the business itself in any real sense. You can manipulate the financial statements for a few years, but what you are actually doing is destroying all the things built in the past in order to get the results run through the Income statement.

            There has long been a fantasy that a manager can manage a business by manipulating the income statement and balance sheet accounts, but that will lead to exactly what you describe. Much of the value of a company will never appear on the books because accounting cannot measure it.

            A perfect example of this is the value locked up in the skills and attitudes of the employees. Employees bring a set of skills with them that do not appear on the books. Then they develop new or better skills through experience. Again these do not appear on the books. The firm also builds trust in its suppliers which is if great value. In a tight time the firm might be slow-pay for a bit, something they can do with prior trust. Using that improved the net revenue for a short time as you bring in revenue and don't pay the expenses. But that trust disappears quickly and then it is gone. You've converted an invisible asset into revenue and then it ceases to be worth anything for future revenue (the definition of an asset is something that will mean revenue in the future.)

            Accountants themselves get lost in the weeds of making all the numbers turn out right each quarter and rarely concern themselves with what the firm does to create products and services of value. Managers who built the company take care of managing the real company, so accountants only have to make sure the numbers on the financial reports follow all the rules. Then the initial managers move on and they are replaced by younger people, many of whom do not know how to manage a business - just financial reports.

            If the company is taken over by Bain Capital or another vulture capitalist they will normally get rid of the existing management and move in number crunchers so they can get their money back with a profit. But they will almost always be destroying important parts of the company when they do. That may be appropriate if the company makes buggy whips. Often though, the outsiders are just bankers and bankers live entirely in the financial reports and property ownership documents. They rarely have the skills to actually know how to build a company.

            The US Supreme Court has by its actions and rhetoric ceased to be legitimate. Whiskey Tango Foxtrot - over

            by Rick B on Sun Jun 24, 2012 at 08:41:08 PM PDT

            [ Parent ]

    •  TV has a lot to do with it. We're also in a (5+ / 0-)

      anti-intellectual eddy that drags the nation round and round every so often.

      Even if I knew that tomorrow the world would go to pieces, I would still plant my apple tree. -Martin Luther

      by the fan man on Sun Jun 24, 2012 at 08:34:10 AM PDT

      [ Parent ]

  •  Still holding out hope for Roberts (2+ / 0-)
    Recommended by:
    devtob, MichiganChet

    And that the mandate will be upheld (because it is constitutional).

    •  Norman Goldman agrees with you (nt) (1+ / 0-)
      Recommended by:

      Sometimes . . . I feel . . . like a redneck with chopsticks . . . Dreaming of squirrel while I'm sucking down squid . . .

      by Pale Jenova on Sun Jun 24, 2012 at 08:38:09 AM PDT

      [ Parent ]

    •  Several years ago, the thought that any one would (0+ / 0-)

      Say that would have made me chuckle, not so much any more.

      I don't expect anything more than a partisan hack opinion.

      With Liberty and Justice for the 1%

      by wrights on Sun Jun 24, 2012 at 09:07:39 AM PDT

      [ Parent ]

    •  Well, remember that the mandate was a Repub idea (3+ / 0-)
      Recommended by:
      orlbucfan, wsexson, JanL

      When it first came out, and in essence fits with Repub 'principles': it preserves the rights of for-profit corporations; it doesn't regulate pharmaceutical company pricing; it goes against this idea of 'freeloaders' mooching off the public purse; and in of itself does nothing to constrain health care costs, nor is it clear that it really achieves the goal of universal health care coverage. So yes, I suppose it is possible Roberts the dishonest will uphold this completely constitutional exercise of legislative power, but not because he has any progressive instincts in him.

      An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head. -- Eric Hoffer

      by MichiganChet on Sun Jun 24, 2012 at 09:27:48 AM PDT

      [ Parent ]

      •  indeed, the only reason the goppers oppose the (5+ / 0-)

        mandates is because the other side passed them.

        If McCain had won and passed RomneyCare instead of us, the Repugs would be cheering it, and we Dems would be telling everyone what a corporate give-away it is.

        It's all just partisan patter.

        •  Scuse me, we already said it (1+ / 0-)
          Recommended by:

          But, since it actually attempts to provide health care coverage to a number of Americans priced out or forced out of the current system - who ultimately drive up health care costs for all the rest of us - I believe the Dem opposition would be quite muted. You would have to live in fantasyland to think we would mobilize our own 'death panel's' and angry teabaggers the way our enemies did.

          An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head. -- Eric Hoffer

          by MichiganChet on Sun Jun 24, 2012 at 10:21:26 AM PDT

          [ Parent ]

    •  There's no hope for Roberts. . . (2+ / 0-)
      Recommended by:
      3goldens, JanL

      Scalia, Alito or Thomas.

      Who knows what Anthony Kennedy will do.  That is the Question!

      "As long as Corporations control Government, there is no reason for Government to regulate Corporations!" John Roberts, Citizens United (SNARK)

      by NM Ray on Sun Jun 24, 2012 at 09:44:20 AM PDT

      [ Parent ]

    •  You were right! (0+ / 0-)

      With Liberty and Justice for the 1%

      by wrights on Thu Jun 28, 2012 at 02:01:08 PM PDT

      [ Parent ]

  •  Ridiculing emphasis supplied (2+ / 0-)
    Recommended by:
    devtob, coral

    It's one of those circumstances where even a dedicated cynic has a hard time keeping up.  Damned shame so much is at stake.

    (Now I'll go back and read the rest...)

    Grab all the joy you can. (exmearden 8/10/09)

    by Land of Enchantment on Sun Jun 24, 2012 at 08:35:53 AM PDT

  •  I remember watching both the Roberts (11+ / 0-)

    and the Alito confirmation hearings, thinking, "Goodbye," to my hopes for a progressive turn in America for the next 15 to 20 years.  My other thought was, "they're lying."  The Roberts court also seems to be refighting the Civil War, approving state's rights when it suits them, usually over oppressive class participation or moral statutes.  They are Constitutional Fundamentalists only if you interpret the Constitution as protecting rich, white men (landowners).  Everybody else can depend on the charity of said rich white men or go to hell.  

    Life is good. Injustice? Not so much.

    by westyny on Sun Jun 24, 2012 at 08:38:53 AM PDT

  •  It appears that Roberts lied to the Senate (8+ / 0-)

    If the House could refer Roger Clements for trial for lying to Congress, why shouldn't the Senate refer Roberts for prosecution for lying to the Senate?

    The US Supreme Court has by its actions and rhetoric ceased to be legitimate. Whiskey Tango Foxtrot - over

    by Rick B on Sun Jun 24, 2012 at 08:40:26 AM PDT

    •  He has sovereign Immunity (1+ / 0-)
      Recommended by:
      joe wobblie

      Really annoying, sovereign immunity.  It's good to be king.

      Shine like the humblest star.

      by ljm on Sun Jun 24, 2012 at 09:06:38 AM PDT

      [ Parent ]

      •  Impeach, then (1+ / 0-)
        Recommended by:

        The Senate most definitely has that power.

        They never will, though, so therefore perjury before the Senate during judicial confirmation hearings... isn't. Lie at will, whatever it takes to get you in!

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Jun 24, 2012 at 09:41:15 AM PDT

        [ Parent ]

        •  Art I section 2e (1+ / 0-)
          Recommended by:
          joe wobblie

          "The House of Representatives ... shall have the sole power of impeachment."

          Art I section 3f
          "The Senate shall have to sole power to try all impeachments."

          Conviction requires a 2/3rd vote of the Senate and the punishment is limited to removal from office and being barred from holding " ...any office of honor, trust or profit under the United State;"

          Need I say it's politically impossible at this time to impeach a Justice? Talk about tying the hands of the cops and the courts.

          The US Supreme Court has by its actions and rhetoric ceased to be legitimate. Whiskey Tango Foxtrot - over

          by Rick B on Sun Jun 24, 2012 at 11:52:03 AM PDT

          [ Parent ]

          •  It's BEEN politically impossible since 1805 (0+ / 0-)

            when Samuel Chase was impeached and the Senate refused to convict/remove.

            For all intents and purposes that made it impossible to impeach a Supreme Court Judge, ever again (although one or two were publicly embarrassed into resigning).

            If it's
            Not your body,
            Then it's
            Not your choice
            And it's
            None of your damn business!

            by TheOtherMaven on Mon Jun 25, 2012 at 10:28:01 AM PDT

            [ Parent ]

        •  Ahh...the Republican way added to the sin of (0+ / 0-)

          omission!  It's how ThugGov Walker got elected...twice!

          Robber Baron "ReTHUGisms": John D. Rockefeller -"The way to make money is to buy when blood is running in the streets"; Jay Gould -"I can hire one half of the working class to kill the other half."

          by ranton on Sun Jun 24, 2012 at 03:36:37 PM PDT

          [ Parent ]

  •  Citizens proves Roberts lied at those hearings, (5+ / 0-)
    Recommended by:
    devtob, MKS, coral, 3goldens, JanL

    his court is a one sided monstrosity that disregards stare decisis, and imposes its will on a vulnerable public.
    Citizens was completely unnecessarily expanded in the opinion, it was used in the most heinous way to pervert justice for all Americans, yes, indeed, DREAD SCOTT is the most comparable decision.

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

    by leftyguitarist on Sun Jun 24, 2012 at 08:40:38 AM PDT

  •  I'll fight (7+ / 0-)

    But can I just acknowledge that this is the price paid for "keeping our powder dry".  I'm still so pissed about that crap!  Dry nation is broken all to hell now.  Dry powder is even overrated for fixing a chapped ass.

  •  Look, they are just a bunch of calcified old (1+ / 0-)
    Recommended by:

    fucks passing judgment on the rest of us.

    The real power in America is held by a fast-emerging new Oligarchy of pimps and preachers who see no need for Democracy or fairness or even trees, except maybe the ones in their own yards, and they don't mind admitting it. ~ Hunter S. Thompson

    by Saint Jimmy on Sun Jun 24, 2012 at 08:42:52 AM PDT

    •  Unfortunately, some of them are not THAT old. (1+ / 0-)
      Recommended by:
      Saint Jimmy

      Robber Baron "ReTHUGisms": John D. Rockefeller -"The way to make money is to buy when blood is running in the streets"; Jay Gould -"I can hire one half of the working class to kill the other half."

      by ranton on Sun Jun 24, 2012 at 03:38:31 PM PDT

      [ Parent ]

  •  Somewhat to the side of the topic, has anyone else (5+ / 0-)
    Recommended by:
    devtob, NM Ray, coral, 3goldens, orlbucfan

    noticed how fragile Ginsberg is looking these days?  I wonder if she's putting off retirement until after the election in the hope Obama will appoint her successor.

    Those who forget the pasta are doomed to reheat it.

    by CarolinNJ on Sun Jun 24, 2012 at 08:49:32 AM PDT

    •  She's been unwell for some time now (6+ / 0-)

      The Right is salivating over the chance to replace her with another Far Right appointee in their 40s.  She's got cancer, and it's less than certain that she could survive another 4 years if a Repulican's elected.  If she were politically motivated, she would have retired when Obama could appoint a successor.

      I have a bad feeling about where this might be headed.

      Grab all the joy you can. (exmearden 8/10/09)

      by Land of Enchantment on Sun Jun 24, 2012 at 08:53:47 AM PDT

      [ Parent ]

    •  If she retires, she's gotta do it before 2014 (0+ / 0-)

      and Obama needs to lean on her -- hard -- to do so. Assuming we keep the Senate this time, we're not going to keep it in 2014. The map is simply prohibitive. We ran the table in 2008 and those seats are up again in 2014, and it's an off year. The only bright spot is Maine, especially if Susan Collins retires. That's our lone pickup opportunity.

      From there it's a big drop to Kentucky, and the rest are easily worse. Most of the red seats up are very safe R; the blue seats are not so certain on the D side. At least AK, MT, SD, AR, LA, and NC are quite shaky; AR and LA severely so. MT alone might have an easy out for us if Schweitzer primaries Baucus out. And now Rockefeller in WV is looking like he will retire as well, leaving a dangerously open seat.

      If she refuses to either retire by 2014 or commit to staying on until after 2016, and has to leave the Court under a Republican Senate majority, she needs to be persona non grata in the progressive and Democratic communities. No lucrative speaking tour, no honoraria, no cushy advisory board position with the ACLU or anyone else, no awards, no respect, a retirement shunned into isolation and insignificance. Dems and progressives need to send a message that we play to win. The Republicans would twist arms to make sure their justices retire when they control the WH and Senate; we should too.

      •  Um, hello? (0+ / 0-)

        Are you aware that Justice Ginsburg is 78 years old and has gone through bouts of colon cancer and pancreatic cancer?
        She went through surgery, chemo and radiation without missing a day on the bench.

        In the context of these facts, your comment seems out of place. I'm sure when Justice Ginsburg retires, it will be because she must.

  •  Naive Left Thinking has led us here. (1+ / 0-)
    Recommended by:

    This week, we will witness, not only the overturn of the ACA, but the conviction of a sitting Attorney General on charges of Contempt of Congress and


    I have written David Axelrod on twitter about this to no avail.  

    I hear only crickets from the left.

    I guess I will just stop reading and listening to the news.

  •  We've been in an extreme constitutional winter (6+ / 0-)

    I'd go so far as to call it an extreme constitutional nuclear winter.  That was obvious in 2000 with the selection of Bush/Cheney.

    Shine like the humblest star.

    by ljm on Sun Jun 24, 2012 at 08:57:46 AM PDT

  •  Big darkness, soon come (5+ / 0-)

    That line is from Hunter Thompson but, sadly, I think it fits.

    Whether the ACA act is struck down, or even if its upheld, the march of Conservatism/Republicans to radically alter - in essence, eliminate - democracy in the USA will move forward.

    Sorry for the gloom and doom, but everything I've heard from my (diminishing in number, yet willing to speak to me) conservative friends indicates an acceleration in altering this coutnry and making it a plutocracy.

    Increased ability for employers to fire workers: You work for a company that pollutes, but belong to Green Peace? You're fired.  Critical of the company/industry on FaceBook or DailyKos? Adios.  Eventually, if you make political contributions or sign a recall that aligns you against the owners' agenda (ie, you're a Democrat) - you're out the door.  I've heard this as an employer's rights argument, similar to why employers should have the right to fire any pro-union employee.  BTW, back a hundred years ago in the Lochner era, the Supreme Court ruled that employers could fire employees for just that.

    There will be more SC  regressive judgments favoring the Plutocrats, especially if Romney is the President.  If Obama stays, expect many more "States right's" arguments  to come up - you hear the 10th Amendment propaganda on the RWNM.

    Restricting who can vote: Sure there is voter suppression right now.  But the bold move is to just outright limit who can vote.  Get more from the government than you pay in?  You don't get to vote. Its the next step after the "47% don't pay taxes" brainwashing sets in.  Yuo need "skin in the game" and/or protperty oowner (paying property taxes) to be able to vote.  Radical?  Absolutely, but I its making the rounds among the conservative true-believers. Make it so the bottom 30-50% of income earners (plus most students and retirees) are not allowed to vote. That combined with threats of losing your job for non-Republican support (online, petitions, mailing lists, contributions, etc) and a "permanent" Republican majority is quite doable (think Mexico's one party rule for about 70 years). Sure we'll still be a democracy - at least in name, but not in practice.

    The plutocrats desire for absolute rule has never really gone away, and its been proactive since the 70s (Southern Strategy, Powell Memo, religious fundamentalists).  We've got a tough fight ahead of us.

  •  Roberts' Umpire--Karl Rove and C of C (0+ / 0-)

    This Roberts' "umpire" comment reminds me of when the Senate allowed hardline Miss.segregationist and Eastland protege Harold Cox to go on the federal district bench. Many Dems. said that Cox's Judiciciary  hearing comments were a joke. When Cox said he would "uphold the law," he meant segregation and lynching. When Roberts spoke of being an "umpire," he meant giving "home cooking" calls to the Federalist Society, Karl Rove, and the Chamber of Commerce. As they said in the 1930's ,"may God save us from this 'Honorable' Court." And also watch how Roberts calls the plays for anti-immigrant Cong. Lamar Smith tomorrow. For more on HCR, immigration, and GOP zanies, read  this  

  •  That's how the post-Bork game is played. (3+ / 0-)
    Recommended by:
    Darmok, Simplify, VClib
    The umpire analogy was particularly facile, if not dishonest.
    Sure, but that's the sort of thing that judicial nominees are required to say.  That's why we call the process kabuki theater: there are rigid roles that the parties have to play.
  •  Roberts would call a strike on a pitchout (10+ / 0-)

    and a ball on a pitch right down the middle, to achieve his intended outcome. He was groomed and selected for this job since he was barely out of law school, the job being overturning 150 years of progressive legislation and precedent, and he's been doing it spectacularly, better than his biggest fans imagined possible.

    Of course, this will all be overturned someday, as he's only delaying the inevitable and on some level surely he knows that, that he's the guy sent in to prevent a 4 game sweep with a loss in games 5, 6 or 7 all but certain. You simply can't hold back progress, and only the most pathetic and pantywaisted of reality-denying fools doesn't know that and tries to prevent it

    Athwart history my ass, every single modern conservative is a bratty little shit at heart who just doesn't like to play well with others. Some of them will have their day in the sun, but sooner or later the sun always sets. It's just the suffering that ensues in the interim that's so terrible, unnecessary, and pointless.

    What's WRONG with these people?!?

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Sun Jun 24, 2012 at 09:10:58 AM PDT

    •  I'm inclined to agree (2+ / 0-)
      Recommended by:
      NM Ray, shaharazade

      I think we are seeing the decline of the whole "conservative" movement. Simple demographics will cripple it, and its own continuing failures will kill it.  And keep in mind too that we no longer live in a world made up of nations--we live in a global power structure where multinational entities who owe loyalty to no government, run things.  It's just a matter of time until the economic entities who really have the global power step in and, quite literally, lay down the law. The "only remaining superpower" is, like every other national government, just a bit player now.

      •  The Trans-Asain (0+ / 0-)

        trade deal makes this quite clear. National sovereignty and 'national interest' is trumped by the multinationals. The vampire squid's grip is tightening and our  government is quite willing to offer up the blood they need to remain implanted.    

      •  History is cyclical (0+ / 0-)

        There are alternating liberal/progressive and reactionary/regressive eras, in an endless push/pull dance between the forces of progress and the forces of regress. Who prevails depends upon will, resources, outside factors and forces and luck.

        They had their run, motivated by crazy ideology and narrow group self-interest and empowered by a weakening liberal movement and support for its mission. But their run is now ending, as their numbers dwindle, energy dissipates and constituent groups diverge, while liberalism is finally on the upsurge. All they have is a temporary lock on congress and the courts. That will eventually end.

        Oh, and the money. But I don't believe it can buy as much as some think it can.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sun Jun 24, 2012 at 02:41:40 PM PDT

        [ Parent ]

  •  Awakenings (0+ / 0-)

    There will come a day, when they don't have Obama to kick around anymore, when it will dawn on the radical right that there are no black UN helicopters nor an Agenda 21 conspiracy and that they've been working all this time for trans-national corporations, and it will come when those corporations decide it's not wise to have an armed populace around. It's not good for business.
    Hell hath no fury like a political movement scorned.
    You can see it already in the Ron Paul revolutionaries and the mistrust of Romney's Mormanism.

    •  Although Obama's end is clear, (0+ / 0-)

      the day that the corporatists (Fascists) see no need to hide behind the UN, NATO, or NRA is not near.

      Mormons are the cult of the future because they respect Corporatists (Fascists) and they are high on life.  They have no need for Ron Paul's marijuana.

  •  Cogent and persuasive case for re-electing Obama (3+ / 0-)
    Recommended by:
    coral, andgarden, JanL

    The laundry list of disappointments many progressives have experienced during Obama's first term is tens of pages long. But, the possibility of an ultraconservative "supermajority" (meaning 5 solid votes) on the Supreme Court indeed has the potential to utterly and permanently dismantle every single even mildly progressive policy advance of the last 80 years.  The damage--to human beings and the environment, for starters--would be catastrophic.  It seems likely that Justice Ginsburg will retire next term, and the forces of darkness only need one more.  I am sure Scalia and Kennedy would retire if Romney is elected, and we could expect their replacements to be in their 50s and in robust health.

    On the other hand, President Obama could end up appointing replacements for two (Scalia and Kennedy) members of the conservative bloc.  I think it is more likely, though, that Scalia and Kennedy would stubbornly hang on past the end of Obama's second term.

    So, we are faced with the certainty of an entrenched ultraconservative majority if Romney is elected; and the possibility of a tenuous "moderate" majority if Obama prevails.  The choice could not be more stark.

  •  "Herbert Spencer's Social Statics" (1+ / 0-)
    Recommended by:

    When I first read that line from Oliver Wendell Holmes's dissent in Lochner, I laughed out loud.  It was a great line.  I thought it was funny because it was a good turn of phrase that expressed what I thought was an obvious idea.

    Now, that line is more serious in that people actually have to stop and think if the Constitution favors any particlar kind of politics.


  •  How many laws have been struck down by (0+ / 0-)

    the Roberts court?

    How does that compare to prior courts?

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Sun Jun 24, 2012 at 09:22:45 AM PDT

    •  A partial answer -- (0+ / 0-)

      According to, 158 acts of Congress were struck down between 1789 and 2002, or .74 per year.

      Roberts became Chief Justice in 2005, which would lead us to expect 5 Federal statutes struck down during his tenure.

      Back to The Google for me, so I can find out how the court compares to that expectation.

      LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

      by dinotrac on Sun Jun 24, 2012 at 09:29:16 AM PDT

      [ Parent ]

    •  the first rule of a sniper: (3+ / 0-)

      It's not how many you shoot---it's WHO you shoot.

      First rule for a judicial ideologue:

      It's not how many laws you strike down, it's which ones.

      •  So far, one provision that deserved to be shot (0+ / 0-)

        down, and potentially one more.

        Citizens United was correct.
        If the mandate is struck down, that will be correct.

        Certainly less radical than Brown v. Board of education, which didn't overturn and federal statutes, but upended a 60 year old precedent and overturned who knows how many state statues.

        And, of course, that genuinely radical decision was also correct.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Sun Jun 24, 2012 at 10:52:41 AM PDT

        [ Parent ]

        •  well of course you know I'll disagree (0+ / 0-)
          Citizens United was correct.
          If the mandate is struck down, that will be correct.
          Mandates may be a stupid useless Republican idea for corporate welfare, but I'm not particularly convinced that they are unconstitutional. Maybe by the Ron Paul Libertarian definition of "unconstitutional"--but then they're nutty anyhow.

          And Citizens United was a flat out stupid decision. Any court that can argue with a straight face that the government has no compelling interest in preventing "the mere appearance of influence or access" in its elections, is simply idiotic.

          •  It's a very high standard, and that compelling (0+ / 0-)

            interest must be sufficient to supercede the First Amendment.

            I know you disagree, but mere appearances don't strike me as sufficiently compelling to strip away First Amendment rights.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Sun Jun 24, 2012 at 11:34:57 AM PDT

            [ Parent ]

            •  me, I think it matters if elections appear crooked (0+ / 0-)

              I think it matters a lot.

              In fact I think democracy is impossible without making sure that elections don't appear crooked.

              •  It does matter a lot, I agree. (0+ / 0-)

                But the validity of elections is also questionable if you censor political speech.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Sun Jun 24, 2012 at 11:42:40 AM PDT

                [ Parent ]

                •  that's simply not a serious argument (0+ / 0-)

                  Let's stop a thousand random people and ask them "which would make you doubt the validity of an election more---a situation where Global MegaCompany Incorporated is not allowed to donate money to to influence any elections, or a situation where Global MegaCompany Incorporated can spend as much money as it wants to influence elections."

                  The idea that GlobalMegaCompany Inc loses its free speech rights if it can't spend a million times more than anyone else, is just ludicrous.

                  How about we limit both my and Global MegaCompany Inc's total contributions to the same $x amount, so we both have exactly the same "free speech rights" in the election.  And that way people won't need to think "gee, I wonder if Global MegaCompany Inc's $bazillion contribution influences the election more than my $10 does?"

                  •  Not a serious argument? (0+ / 0-)

                    Oh my goodness, have ever actually checked the facts of Citizens United?

                    The law struck down was one that could prevent me and a few of my neighbors from trying to get our views out in the weeks leading up to an election if we chose to limit the financial risk to our families by forming a small corporation.

                    The law was overly broad and that's not acceptable when limiting First Amendment rights to engage in political speech.

                    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                    by dinotrac on Sun Jun 24, 2012 at 12:39:46 PM PDT

                    [ Parent ]

                    •  come onnnnnnnnnn (0+ / 0-)
                      The law struck down was one that could prevent me and a few of my neighbors from trying to get our views out in the weeks leading up to an election if we chose to limit the financial risk to our families by forming a small corporation.
                      This isn't about you and your neighbors, and you know it just as well as I do.
                      •  It is, no matter how stubbornly you wish (0+ / 0-)

                        to deny it.

                        The actual fact scenario of the case with the Hillary film was closer to me and my neighbors than it was to your MegaGlobCorp.

                        When it comes to the First Amendment, stifling the little guy is not acceptable collateral damage.

                        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                        by dinotrac on Sun Jun 24, 2012 at 12:57:53 PM PDT

                        [ Parent ]

  •  it's here (4+ / 0-)

    it started with bush v gore.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Sun Jun 24, 2012 at 09:23:39 AM PDT

  •  Armando, thanks (2+ / 0-)
    Recommended by:
    coral, 3goldens

    for the great diary.

    It is good to see all this laid out.  And the FDR speech is priceless.

    The conservatives and their Federalist Society have been poisoning the Judiciary for decades now, and we are  seeing the fallout from that.  We now have a Republican Supreme Court that is not principled, and is not basing decisions on deferring to the states or precedent.   Bush v. Gore, Citizens United and now the ACA.  It is just supporting the Republican Party's most recent political position.

    We need more Diaries like this.  We need a liberal counterweight to the Federalist Society.  

  •  Still getting the umpire analogy wrong (3+ / 0-)
    Recommended by:
    bgold, coral, orlbucfan

    The problem isn't that umpires have different strike zones.  As long as the different strike zones are applied uniformly to each team, the worst outcome is slight uncertainty because outcomes may differ at the borders.


    The problem is that the Roberts' court strike zone moves all over the place depending on which team is pitching.  Asked if the commerce clause reaches marijuana grown in the home, and Scalia says yes.  Asked if the commerce clause reaches a product/service that constitutes 1/6 of the nation's economy, and we can be pretty certain Scalia will say no.

    When conservative policies are challenged, the strike zone is very, very large.  Everything is Constitutional.  When liberal policies are challenged, the strike zone shrinks to nothingness.  Everything is struck down.

    A fundamental aspect of the rule of law is its predictability.  When judges adjudicate without regard to precedent, or even their own prior writings, they can't really be said to be judges anymore.  They've become politicians.

    •  Greenwald on justice system (0+ / 0-)

      Glenn Greenwald's Liberty and Justice for Some is an eye opener on how extremely two-tiered our justice system has become, with near total impunity for the wealthy and political elites, and severe punishments meted out for lower and middle classes.

      Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

      by coral on Sun Jun 24, 2012 at 10:16:50 AM PDT

      [ Parent ]

  •  My take on this is we are living (3+ / 0-)

    in a new gilded age, but gilded ages are short term--almost by definition. Greed destroys.  It is not sustainable.  The level of greed is evidenced by the almost hysterical and irrational type of neoliberal, making money on money capitalism we are now seeing.

    Business knows this, but Judges, Justices and other ideologues do not.  I think the justices see this as a vanguard and the way the country should operate, when really it is a passing phase.  In short, I think the current conservative court will be the object of near universal ridicule in less than 10-20 years, as will our current neoliberal, phony debt driven economy.

    “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

    by Publius2008 on Sun Jun 24, 2012 at 09:33:01 AM PDT

    •  Maybe... (0+ / 0-)

      but I think your time periods are off and you way overestimate the intelligence of voters and the capability of the media to sucker them in.

      I was just reading the wikipedia autobiography of an old 'friend' of mine.  The conservative Arthur Finkelstein.  Here is a quote from him.  Think about it:

      He said Proposition 13 (just passed in California) shouldn't be inter-preted as

      "evidence people want services cut. They want taxes cut,"
      and voters aren't sophisticated enough to understand that one leads to the other.
      •  That means someone didn't do (0+ / 0-)

        a good job of being persuasive.  I live in the real world and I know how people feel about taxes-they pay them and don't know or appreciate what they get for them.  The govt needs to be more transparent and accountable as to how and why money is spent.  Because the services govt provides are oftentimes much more indispensable than people realize.  

        There is also the issue that many think that certain groups or classes are essentially parasites.  Defeating that prejudice is a battle in itself.  But I don't want to get into that here.

        “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

        by Publius2008 on Sun Jun 24, 2012 at 09:47:49 AM PDT

        [ Parent ]

        •  I attended Tufts where PT Barnum (1+ / 0-)
          Recommended by:

          was one of the founders.

          He didn't think much of the common man.  His comment about suckers being born every minute expressed his cynicism.

          I tend to believe Arthur is correct.  People don't connect taxes with services.

          And, I do biomedical science research for a living.  I it is difficult, nigh impossible, to explain my discipline to those of below normal intelligence.

          It should be noted that one half the population (by definition) is of below normal intelligence.

      •  Right-wing anti-tax propaganda (3+ / 0-)
        Recommended by:
        bgold, orlbucfan, wsexson

        has been highly orchestrated and funded. Advertising works. There has been no equivalent push from the opposite end of the spectrum.

        Instead the Democratic party has been loathe to advocate for the value of taxes, public services, and the benefit of keeping some services, such as prisons, parks, utilities, publicly owned and managed.

        Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

        by coral on Sun Jun 24, 2012 at 10:20:13 AM PDT

        [ Parent ]

        •  I agree with this (1+ / 0-)
          Recommended by:

          The advantages of the commons have never been subject to proper public airing in America.  Newspapers (and all media) are privately owned.  That means that they have a prejudice in favor of private property and private ownership.  Unfortunately that means that the public view is only obtained through the lens of private ownership.

          At one time, when US Unions were powerful, there was the possibility of understanding the benefits of the commons through a worker's lens.  But, private capital tried very hard to disempower Unions.  And, they have very largely won.

        •  we're all anti-keynesians now (2+ / 0-)
          Recommended by:
          bgold, ljm

          Both parties argue over HOW MUCH to cut "entitlements" and "government spending", not WHETHER to.

  •  From seed to tree (0+ / 0-)

    The jeremiads of this article, like the Roosevelt speech quoted, reflect problems that grow out of their own initial standpoints. To cut to the very bottom, their view is founded on the notion that all law is but a reflection of the victory of some partisan interest, and that the Constitution is merely one set of laws—fairly old, but of no more intrinsic worth than any other law. In fact, its antiquity is more a measure of its obsolescence than of vitality.

    As the law is a reflection of partisan politics, so "justices of the Supreme Court are part of the policy 'game.'" And the final conclusion must then be that the SC is nothing more than another venue for the clash of interests that is politics. It's Our justices vs. Their justices—but the one sure thing is that, as Thrasymachus and his spiritual descendants have ever claimed, 'justice' is nothing but the advantage of the stronger.

    Shockingly and surprisingly, we reap what we sow.

  •  Book coming from you Armando? (1+ / 0-)
    Recommended by:

    That would be excellent.

  •  Good and thought-provoking (0+ / 0-)

    diary. Definitely deserves its FP status.

    Inner and Outer Space: the Final Frontiers.

    by orlbucfan on Sun Jun 24, 2012 at 09:47:29 AM PDT

  •  'For Life' appointments strike me as being very (1+ / 0-)
    Recommended by:

    anti-democratic, and more similar to third world dictatorships than anything else.    I would suggest a constitutional amendment to allow SCJ to serve for maybe 10 year terms, and for Presidents to be able to change out the 'chief' justice if they so desire at their own inaugurations.

    •  The original idea (0+ / 0-)

      Was for the courts to be the weakest branch of government and thus the judges got a lifetime job.  That was, because the founders knew that there would be a huge body of law the judges would have to know and study to keep up with the judicial times.  They knew this, because the common law in England was based on case law and it already had volumes and volumes.  The expectation was that judges (who didn't have WestLaw or other computer tools) would spend a lifetime studying the law to make their decisions.  Now (or for some decades actually) they decides there are too many cases and they can't possibly keep up, so they make the ones they don't want anyone to see (calling them not precedential) unpublished.  The plan was for them to never be available on WestLaw or other legal tools).  Given the way courts function now, with all the clerks and computer assistance, the original intent may no longer apply.  I'd have to think about that one, before I throw the baby out with the bathwater.  I think our entire court system needs an overhaul.  What we've got isn't working, if the point of going to court is to get a just decision and not a politically motivated or biased mean spirited one.

      Shine like the humblest star.

      by ljm on Sun Jun 24, 2012 at 10:50:58 AM PDT

      [ Parent ]

  •  If Scalia Can Just Decide That The Cases (1+ / 0-)
    Recommended by:

    he decided on using certain precedent decides it is no longer correct can't those case decisions be challenged again in court?  Every decision that Scalia made based on the prior precedent and now changes his mind on said precedent should be challenged in court.

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

    by rssrai on Sun Jun 24, 2012 at 09:58:59 AM PDT

    •  Nope (0+ / 0-)

      Can't go back to those cases, unless you can prove Fraud on the Court and get the cases vacated to be retried again.  New cases would have to be brought to overturn the precedent Scalia now thinks is wrong.  Of course, the judges in that circuit might like the current precedent and decide to make the new case unpublished.

      Shine like the humblest star.

      by ljm on Sun Jun 24, 2012 at 10:53:48 AM PDT

      [ Parent ]

  •  historicially, the supreme court has been the most (1+ / 0-)
    Recommended by:

    Corrupt institution ever. With the notable exception of the Warren and Berger courts, they have constantly looted this country with completely out of touch decisions, from Dred Scott to Plessy v. Ferguson, to Lochner v. New York. We need an FDR who will threaten to pack them if they don't behave themselves.

    It's high time that we call them what they are, an unekected body of corrupt legislators.

  •  this has been inevitable since 2000 (1+ / 0-)
    Recommended by:

    not to open the 'lesser evil' can of worms but ...

    If, and it's a huge if, the Dems regain the House and hold the other two branches they'd have to start playing really hard ball. Investigations into Alito and Thomas conflicts of interest.

    The sadder part is there is a large portion of the country that is rooting for this team just because they hate us so much or (and?) have bought into some cartoon ideology of FREEDOM and INDIVIDUAL LIBERTY both of which are nice slogans employed in the destruction of the society we built in the 20th century.

    If you didn't like the news today, go out and make some of your own.

    by jgnyc on Sun Jun 24, 2012 at 10:17:15 AM PDT

  •  FWIW (3+ / 0-)
    Recommended by:
    orlbucfan, indie17, vcmvo2

    Wow - epiphany time thanks to this diary. I always felt fairly well educated in 50's and 60's America.  I thought I understood and appreciated America's labor struggles - Triangle Fire, John L. Lewis, Eugene Debs, Al Shanker. And FDR: hey, New Deal and government protection and help for poor and hard working Americans.
    No, I did not understand. I took my stable world for granted, I took this world as natural and obvious for any reasonable person. I assumed that, by and large, reasonable, knowledgable people would discuss, debate, and decide things in a reasonable way. I thought of big business in a fairly benign way. GE, Chase Manhattan, General Motors, Dow, United Fruit, U.S. Steel, Boeing - their leaders were citizens, they were interested in the success of America, of Americans. Their excesses had to be restrained for the good of everyone, even them (and even they could recognize that), and they had to contribute to the country through taxes, and would contribute through philanthropy, they would negotiate hard with the unions but still walk away prosperous, and their drive and genius was otherwise best left free, and they and their corporations would give us all a better life.
    But it is only now, seeing what has happened the last ten years, seeing what is arrayed before us: selfishness, greed, corruption, shamelessness devoid of human principle, the betrayal, the ridiculing of civilized life, all distilled down to pure poison; and that, played against FDR's world as described in his speech above make this clear: FDR was not  (just) the New Deal. It was a fight to the death. A fight against ruthless business, and corruption and physical force and money expressed anywhere and everywhere  - in legislatures, in courts, on picket lines. That's why everyone loved FDR - he took them on, he was on our side, for once! And he won! And what is happening now is only the continuation of that fight, anywhere and everywhere and any way they can. The last ten years have tipped the scales against us. Our  Supreme Court and our "laboratories of democracy" in the red states have given us all a shocking glimpse of what awaits us if we lose this fight, if we lose this election. One of my colleagues would often wag his finger in my blank naive face and angrily exclaim: "These people are not your friends!" Yes - these people are not our friends.

    Bold at inappropriate times.

    by steep rain on Sun Jun 24, 2012 at 10:35:42 AM PDT

    •  What awaits us is Netanyahu's Israel (0+ / 0-)

      No, not in the conventional understanding of AIPAC and its influence here.

      Rather Netanyahu's Israel as a country. The state is openly and unashamedly an arm of the right: internationally, the state willfully provokes enmity and hostility from former allies.
      The idea of this last is twofold. Enmity from without helps raise solidarity within, especially among those who have not understood that Bibi likes it this way. As for those who do understand, if "the boss is crazy" (old Israeli expression), political opposition will often be too scared to call the behavior out for what it is.
      After all, it sounds nuts that a country should willfully provoke foreign hostility that could hurt it in the long term—unless, of course, the only goal is short-term consolidation of power. That's a sign that one's rulers are extremely dangerous cynics; no wonder many are scared.
      At this point most progressive parties have joined Netanyahu's governing bloc; in what may have initially been an attempt to draw Bibi to the left, but has played out as fearful going-along-to-get-along.

      The international relations of Bush 2001-2008 often look counterproductive at face value, but make sense when viewed through this same prism: the more foreign enmity we can create (if we don't care about repercussions), the more domestic power we can seize—as long as enough people don't put two and two together.
      Romney is quite plainly willing to reenact the same process. Disastrous international relations aren't a bug; they're a feature.

      Why, by the way, should the massive corporations that prefer Republicans want this kind of international mayhem? Won't they lose a lot of markets in the long run?
      Yes—but in the short term Republican dominance will allow them to go for broke exploiting us domestically, and individual CEOs expect to have moved on with their winnings before the system implodes.
      It's not even about business or commerce: it's about the personal success of the few individuals who happen to be in charge at the moment.

  •  Winter is Coming (0+ / 0-)

    sorry, somebody had to say it...

    Now, if Romney gets elected, winter will really be here.  The odds that at least Ginsburg steps down in the next four years are very great....

    Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

    by dizzydean on Sun Jun 24, 2012 at 11:32:35 AM PDT

  •  I started to read this (0+ / 0-)

    and hadn't noticed who wrote it. It did not surprise me to see it was Armando. It's a really good argument that does not depend on partisan loyalty, a pols persona or ideology but addresses what is at stake.

    My only question is how do we the people reverse what these Supremes have already done to dismantle the New Deal and more importantly the concept of the general welfare and economic equity?

    Fat chance the Third Way Dems who are running the party and have the power, will nominate or appoint any progressive or even  moderate who isn't an ideologue in the by-partisan NWO.

    Like Simpson, who they found acceptable, they will hide behind and work for by-partisan 'victories for compromise'. They have no more interest in preserving the New Deal and seem to have nothing but disdain for the interpretation of the constitution that Holmes or FDR advocated.


  •  Bill Klem was an umpire who once was offered (0+ / 0-)

    poison be a female fan who became more and more outraged at his calls behind the plate that day.

    She apparently said to him "If you were my husband, I would give you poison."

    His response was "Madame, if I were your husband, I would take it."

    Where is this lady now that we REALLY need her?

    "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

    by BornDuringWWII on Sun Jun 24, 2012 at 02:12:53 PM PDT

    •  Also attributed to Winston Churchill (0+ / 0-)

      and various other major political and/or cultural figures. (The would-be poisoner in the Churchill example was Lady Nancy Astor...American by birth, member of Parliament by right of marriage and money - especially money.)

      If it's
      Not your body,
      Then it's
      Not your choice
      And it's
      None of your damn business!

      by TheOtherMaven on Mon Jun 25, 2012 at 10:44:24 AM PDT

      [ Parent ]

  •  Armando, thank you for saying this. (0+ / 0-)

    To my mind, nothing is more important for progressives than making sure that we do not allow the extreme RW ideologues to recapture the Court.  They are very close.  If Romney wins, Roe (and possibly Griswold) will be history, and Lochner will be back before his first term is over.  THAT is what is at stake this November.  All else pales in comparison.

    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 Sun Jun 24, 2012 at 04:10:25 PM PDT

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