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The Supreme Court building in Washington DC
With Congress useless, it's now Obama vs. SCOTUS.
So says Lawrence Tribe at Slate, writing about the bad-but-not-as-bad-as-they-could-have-been series of decisions that came out of the U.S. Supreme Court this term. With specific regard to the Hobby Lobby and Harris cases, which respectively undermined women's access to reproductive health and the ability of public sector workers to organize, Tribe notes:
Hobby Lobby and Harris demonstrate a consistent theme of this term: The seeds of conservative transformations lurk in the court’s narrow decisions. Will Hobby Lobby remain merely a rule for closely held corporations, or does it herald a sea change in the court’s willingness to carve gaping holes in laws of general application for failing to accommodate religious objectors? Does Harris symbolize the first chess move (or, more accurately, the second) in a game that ends with the destruction of public-sector unions? It may be too soon to tell.
Personally, I would also add McCutcheon v. FEC to the list of cases used to plant incrementalist seeds of conservative ideology. In this case, the court ruled in favor of the wealthy by holding—with the usual 5-4 ideological breakdown we have come to expect from this iteration of the Roberts Court—that aggregate limits on contributions violated the First Amendment. As with both Harris and Hobby Lobby, the ruling was "narrow" in the sense that it could have been much worse: if Justice Thomas had had his way, the court would have gone so far as to strike down all limits as unconstitutional. By that standard, surviving a campaign contribution case while losing only the aggregate federal limit is almost a relief.

But we shouldn't expect that the court will be content with advancing the conservative movement in these bite-size, incrementalist ways. Rather, it has established a methodology of using the more limited decisions as a pretext to rewrite or eliminate laws on a wider scale in subsequent decisions. Jeffrey Toobin at The New Yorker explains how this strategy was used to unwittingly assist the assistance of liberal justices in gutting the Voting Rights Act:

The template here is the court’s voting-rights jurisprudence. In the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, the court upheld a challenge to an application of Section 5 of the Voting Rights Act. Chief Justice Roberts’s decision was “narrow,” and it even drew the votes of the court’s more liberal members. Four years later, though, Roberts used the Northwest Austin precedent as a wedge to destroy both Section 4 and Section 5 of the Voting Rights Act, as well as much of its effectiveness, in the case of Shelby County, Alabama v. Holder. The liberals who signed on to the Northwest Austin decision howled that they’d been betrayed. But it was too late.
Given the intentional uselessness of Congress, American governance has now become a battle between the Obama administration seeking to do whatever it can unilaterally to enact a liberal agenda, and the Supreme Court strategically eking out a way to advance conservatism through rearguard actions—with the exception of LGBTQ rights, where Justice Kennedy provides a 5-4 majority to the the liberals on the bench. And with four justices age 75 or older—two from the liberal wing, two from the conservative wing—the decisions made by possibly the next president, or maybe even during the last 18 months of the Obama administration, will loom especially large. We will either get a chance to stop the conservative winds blowing down the Supreme Court steps, or watch with little recourse as they strengthen to gale force.

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Comment Preferences

  •  SCOTUS indeed blows (30+ / 0-)
    SCOTUS: 'The wind is blowing in a conservative direction'

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "If we appear to seek the unattainable, then let it be known that we do so to avoid the unimaginable." (@eState4Column5)

    by annieli on Fri Jul 04, 2014 at 05:04:17 PM PDT

  •  It is so terrifying, the power they hold over t... (12+ / 0-)

    It is so terrifying, the power they hold over this country. If we had that kind of split in our favor, there is no way we would go against the people in this manner.

    •  Depends on Who You Think the "We" Who'd Hold (2+ / 0-)
      Recommended by:
      Bailey2001, oldpotsmuggler

      the Court would be.

      Legislatively, we've not advanced the people economically since LBJ, and the people have been overall in decline since near to that time.

      If the Democratic Party that often held the WH or Congress during that period was represented by the majority on the Supreme Court, I don't think it's obvious that they wouldn't be periodically going against the people, and sometimes pretty hard.

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

      by Gooserock on Fri Jul 04, 2014 at 05:16:22 PM PDT

      [ Parent ]

    •  one would hope (11+ / 0-)

      But on the buffer zone issue, the court was unanimous.  Free speech of evangelical Christians won over the right of women to have access to health care without the threat of physical assault that the lack of buffer zone provides.  As I have previusly mentioned, I have been there when the Christians attack with the religious conviction equal to a suicide bomber.  The removal of buffer zones, even with the caveat that smaller zones might be legal, is a conservative opinion that puts the right of extremely superstitious people over the rights of rational people.  It is the equivalent of saying that shooting someone who is about to cause you to break a mirror is justifiable homicide.

      She was a fool, and so am I, and so is anyone who thinks he sees what God is doing. -Kurt Vonnegut Life is serious but we don't have to be - me

      by lowt on Fri Jul 04, 2014 at 06:08:37 PM PDT

      [ Parent ]

  •  Whipped up a tornado actually. (1+ / 0-)
    Recommended by:
    silverfoxcruiser
  •  This is nothing new this term. (12+ / 0-)

    The decision on the Affordable Care Act contains the same elements.  Really -- political views aside -- that was a masterful move by Chief Justice Roberts.  He joined with the Court's liberal wing in finding the affordable care act Constitutional, and got the headlines saying that.  At the same time, he wrote an opinion that put limits on Congress' power under the Commerce Clause, one of the issues that conservatives care most about. When that decision is cited in the future, I suspect it will be cited as much for its limitations on Congress' Commerce Clause power as anything else.  While the left was celebrating the decision upholding the ACA, there was an undercurrent of glee among some conservatives for the limitation on Commerce Clause power.  

  •  It is terrifying and obscene that idiots like T... (17+ / 0-)

    It is terrifying and obscene that idiots like Thomas and Alito will be there forever. Just so heartbreaking too. All those people out there who sneered "don't talk to me about how the Supreme Court matters I am not voting for Obama" ... Whether it was here on dk or out there. Ugh. Such ignorance should never be tolerated again.

    •  Who said that about Obama? (2+ / 0-)
      Recommended by:
      Tuffie, Stude Dude

      I remember a lot of that for Gore and the loss of votes to Nader that cost us the presidency and allowed Bush to appoint Roberts and Alito.

      Are you talking about during the Hillary Wars™? If so, a lot of people said a lot of things but I don't think many followed through.

      Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters. -- President Grover Cleveland, 1888

      by edg on Fri Jul 04, 2014 at 07:30:18 PM PDT

      [ Parent ]

  •  But we kept our powder dry... (3+ / 0-)
    Recommended by:
    irmaly, mrblifil, oldpotsmuggler

    so, there's that...

    If we abandon our allies and their issues, who will defend us and ours?

    by Bryce in Seattle on Fri Jul 04, 2014 at 05:37:28 PM PDT

  •  The Supreme Court is the top issue (14+ / 0-)

    in my opinion.  Its decisions touch all aspects of our society.  It doesn't matter how great the President is or how fantastic your representative or senator are if everything they do gets gutted by the reactionary wing of the Supreme Court.

    May you be spared from people who tell you, "God never gives you more than you can handle."

    by ccyd on Fri Jul 04, 2014 at 05:41:27 PM PDT

  •  Lawrence tribe is wrong. (20+ / 0-)

    The Roberts Court is the least ethical and most corrupt USSC I can recall. Mr. Tribe is far too kind to them if he thinks they are making "constitutional" rather than political decisions.

    "The tides go out, the tides come in...Nobody knows why." Glenn Beck, 2014.

    by old mark on Fri Jul 04, 2014 at 05:42:26 PM PDT

  •  The SCROTUS Five know their time is limited (13+ / 0-)

    and are trying to squeeze in as many far-right decisions as possible before one of them heeds nature's ultimate call, whose replacement will almost certainly be a lot more liberal given electoral realities and shifting the majority leftward for likely the next 20 years. They're hoping that even if most of their decisions will be overturned, enough will not to make a difference.

    "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

    by kovie on Fri Jul 04, 2014 at 06:06:40 PM PDT

  •  I Thought Gore & Bush Were Exactly The Same (6+ / 0-)

    Maybe that assessment was a bit off?

    And as the song and dance begins, the children play at home with needles, needles and pins.

    by The Lone Apple on Fri Jul 04, 2014 at 06:34:54 PM PDT

  •  Take heart friends... (7+ / 0-)

    Since Obama's been elected, and despite this insane clown posse we call SCOTUS, we have enacted universal health care, legalized weed and public retail sales in CO and WA, and LGBT marriage equality in almost half the US and counting...that doesn't sound like we're losing.  

    The victories of the Right have all been procedurally limited and against the overall will of the people as shown in poll after poll.  Even when they had power under Bush, they didn't try to challenge Roe v. Wade.  [it's a fundraising thing]  I wouldn't count on it next time - if there ever is one. They are burning everything down now including their own bridges.  For them to recover their momentum will require a major course change - or outright thievery, which is not out of the question, but not a winning strategy in the long-term. I wouldn't even be surprised if they find the law of unintended consequences biting them in the ass eventually - kind of like the creation of the Tea Party itself.

    This week the court proved how retrograde they are, and it is clear that their 5-4 decisions and their extra-judicial biases will not stand the test of time.  The court is the way it is because of Republican presidents.  We have the power  - and maybe the will - to stop that. [Google Mayday PAC and donate now!]  

    The real tragedy is the terrible waste of time, money, energy and humanity that will need to be expended to reverse these nonsensical decisions when there are so many more important issues to address that literally impact the survival of our species [and they are fighting those too].

    A happy, confident prediction to leave you with on July 4th: Sarah Palin will be President before Keystone XL is built.  

    Be safe!

    •  not quite UHC (2+ / 0-)
      Recommended by:
      Creosote, Philip Woods

      actually, not even close.  We have mandated universal insurance coverage, which is better than what we had.  what was bizarre to me was that during the debates, it was accepted that there was still going to be people without insurance even counting subsidies and medicaid expansion.  i live in NC and Pat McCrony rescinded the medicaid expansion that Gov. Bev Purdue put into place.  there are over 500 north Carolinians without health insurance - far from universal.

      The ACA is good, in fact it offers way better insurance than i get from my employer.  but, lets not start calling it universal health care when it is all about health insurance and still leaves gobs of people without health insurance all across the US.

      •  "Single payer is off the table." Now (0+ / 0-)

        contraception coverage will be "off the table" for some. Next vaccinations, blood transfusions, antibiotics, etc., will be "off the table". Eventually "the table" will become a thin TV tray that easily slides off one's lap.

        Once the True Believers get an inch, they'll go for the marathon. Look at abortion. Despite Roe v. Wade, the right to an abortion is being nullified state by state with laws forcing clinics to operate with standards above and beyond Biohazard Level 4.

        The Supreme Court, with a 250 foot buffer zone around their hallowed steps, just ruled that 35 feet was too much of a buffer for antiabortion creeps who want to get in the face of and even block patients from entering clinics. Of course most handgun shooters can't reliably hit a target at that range either.

        I'm glad I'm not a constitutional scholar because that would be a waste of life, sort of like living at Loch Ness in anticipation of the appearance of "Nessie".

    •  NOT UHC. Mandated for-profit health insurance (0+ / 0-)

      there's a huge difference.

      Hillary does not have the benefit of a glib tongue.

      by The Dead Man on Sun Jul 06, 2014 at 11:47:52 AM PDT

      [ Parent ]

  •  Heaven help us ... (1+ / 0-)
    Recommended by:
    silverfoxcruiser

    if one of the conservatives croaks or steps down. Do you really think Republicans will let an Obama nominee through? Or will they fight to the death to defer it until after the 2016 election?

    Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters. -- President Grover Cleveland, 1888

    by edg on Fri Jul 04, 2014 at 07:33:42 PM PDT

  •  Common theme in all these decisions (3+ / 0-)
    Recommended by:
    drmah, VClib, bull8807

    Limitation on government power.

    Not a bad thing in the aggregate, maybe a bad thing in particular cases.

    Everyone is a libertarian about some things (e.g. pot legalization, gov't can't search your cell phone without a warrant). Your political ideology is generally about in what directions and how far your libertarianism extends (though I suppose there are some fascists that believe in a government empowered to do whatever the hell it feels like).

    (Though ironically enough, Hobby Lobby isn't a case about libertarianism... it's a case of the 1993 Democrats passing a bad law that's coming back to bite them now).

    (-5.50,-6.67): Left Libertarian
    Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

    by Sparhawk on Fri Jul 04, 2014 at 07:38:53 PM PDT

  •  SCOTUS approval will continue to decline (5+ / 0-)

    But the Conservative 5 don't care.

    I recall a poll this past week in which Congress' approval was only 7%, SCOTUS 30%, and Obama 29%.

    One concern is the subsequent breakdown in public trust of all branches of the government, thus fulfilling the wishes of the Kochs, Norquist, Tea Party, and other anti-government thugs.

    The right cannot be allowed to win control of the Senate.

  •  All Criminals Overreach.....Get Cocky (9+ / 0-)

    The current Supreme Court has gotten far too big for it's black,
    silken robes.  Even Hobby Lobby & Eden Foods will live to regret this decision.

    They may be riding high.....for now.  However, they're not going to win another national election for a long, long time unless they wake up & take note of the demographic time bomb & the hornet's nest they just stirred up.  

    Women have long memories.  

  •  If we had a Dem controlled Congress (0+ / 0-)

    Would they try for impeachment? These decisions have a rotten smell that needs airing.

    •  laughingRabbit - NO, they would not (1+ / 0-)
      Recommended by:
      bull8807

      While impeachment is a political, and not judicial, process no Supreme Court Justice will ever be impeached for how they rule on cases. That isn't an acceptable cause for an impeachment.

      "let's talk about that" uid 92953

      by VClib on Sat Jul 05, 2014 at 07:38:27 AM PDT

      [ Parent ]

      •  Sadly (0+ / 0-)

        I see that allowing religious beliefs to trump science and the rights of others, as well as working to tilt the balance of power towards the top is not a violation of 'good behavior'. Have to catch them with a bribe in their pockets.

  •  How is it possible? (1+ / 0-)
    Recommended by:
    bull8807

    That in the greatest nation in the world, a schmuck like Clarence Thomas can have so much power?

    In loyalty to their kind, they cannot tolerate our minds. In loyalty to our kind, We cannot tolerate their obstruction.

    by mojave mike on Fri Jul 04, 2014 at 10:32:59 PM PDT

  •  The claim that a ruling does not set precedent (3+ / 0-)
    Recommended by:
    ptressel, Creosote, ezdidit

    is a bit like the bumper sticker that proclaims: "Not responsible for accidents".

    Anything the court does precedes whatever follows; it cannot pretend otherwise. Suppose a lower court cited the HL decision as its rationale. Would SCOTUS overturn it on the ground that "We didn't really mean it"? Poppycock.

    Primo pro nummata vini [First of all it is to the wine-merchant] (-7.25, -6.21)

    by Tim DeLaney on Fri Jul 04, 2014 at 10:42:31 PM PDT

  •  So I guess now a corporation can draft its own ... (0+ / 0-)

    So I guess now a corporation can draft its own creed and, by vote of the board of directors, adopt it as its "deeply held belief". That would allow pretty much anything to be codified into the basis for an objection to a law.

    •  tjh - not true (0+ / 0-)

      The "sincerely held religious belief" legal standard is well developed and cannot be gained overnight. The administration stipulated at the trial court level that Hobby Lobby met the standard and that's why there was never a finding of fact, or any litigation on that point. Once decided at the trial court level the Appellate Court and SCOTUS had no authority to challenge Hobby Lobby on that issue. Going forward any company seeking the same treatment could be required to meet the test in a court hearing.

      "let's talk about that" uid 92953

      by VClib on Sat Jul 05, 2014 at 07:42:44 AM PDT

      [ Parent ]

  •  The Supremes are sensitive to social unrest... (1+ / 0-)
    Recommended by:
    bull8807

    Laws cannot stop violence, and legal accommodation always comes too late.  Read Nick Hanauer:

    ...Our country is rapidly becoming less a capitalist society and more a feudal society. Unless our policies change dramatically, the middle class will disappear, and we will be back to late 18th-century France. Before the revolution.

    And so I have a message for my fellow filthy rich, for all of us who live in our gated bubble worlds: Wake up, people. It won’t last.

    If we don’t do something to fix the glaring inequities in this economy, the pitchforks are going to come for us. No society can sustain this kind of rising inequality. In fact, there is no example in human history where wealth accumulated like this and the pitchforks didn’t eventually come out. You show me a highly unequal society, and I will show you a police state. Or an uprising. There are no counterexamples. None. It’s not if, it’s when.

    I hope that these five supreme idiots are the first to run & expatriate their sorry asses.  There is a nice plaza right in front of their building where a guillotine might be a nice reminder to those who would follow.  

    What we need is a Democrat in the White House. ~ expatjourno

    by ezdidit on Sat Jul 05, 2014 at 05:51:24 AM PDT

  •  Hobby Lobby wil rue the day they played into the (2+ / 0-)
    Recommended by:
    bull8807, oldmaestro

    hands of the Right-Winged SCOTUS.

  •  For myself, I await the day when a piece of paper (0+ / 0-)

    titled, "Articles of Incorporation", gets up out of the pew in whatever location of superstitious ignorance and arrogantly stubborn stupidity it states it has the basis for its "religious convictions", walks down the aisle, and joins the rest of the witlings, dolts, and simpletons in taking "Communion".

    THAT, friends, would be a day to outshine the resurrection of Lazarus.  And wouldn't the Scali-Alioto Siamese Twins be hailed as the newest among "Saviors", even out-shining old St. Ronnie the Raygun?  Of such are "religions" made!

  •  Only a pawn in their game: (0+ / 0-)

    As always, there is a sublimely eloquent Bob Dylan lyric which speaks to this issue:

    Only A Pawn In Their Game

    A bullet from the back of a bush took Medgar Evers’ blood
    A finger fired the trigger to his name
    A handle hid out in the dark
    A hand set the spark
    Two eyes took the aim
    Behind a man’s brain
    But he can’t be blamed
    He’s only a pawn in their game

    A South politician preaches to the poor white man
    “You got more than the blacks, don’t complain.
    You’re better than them, you been born with white skin,” they explain.
    And the Negro’s name
    Is used it is plain
    For the politician’s gain
    As he rises to fame
    And the poor white remains
    On the caboose of the train
    But it ain’t him to blame
    He’s only a pawn in their game

    The deputy sheriffs, the soldiers, the governors get paid
    And the marshals and cops get the same
    But the poor white man’s used in the hands of them all like a tool
    He’s taught in his school
    From the start by the rule
    That the laws are with him
    To protect his white skin
    To keep up his hate
    So he never thinks straight
    ’Bout the shape that he’s in
    But it ain’t him to blame
    He’s only a pawn in their game

    From the poverty shacks, he looks from the cracks to the tracks
    And the hoofbeats pound in his brain
    And he’s taught how to walk in a pack
    Shoot in the back
    With his fist in a clinch
    To hang and to lynch
    To hide ’neath the hood
    To kill with no pain
    Like a dog on a chain
    He ain’t got no name
    But it ain’t him to blame
    He’s only a pawn in their game.

    Today, Medgar Evers was buried from the bullet he caught
    They lowered him down as a king
    But when the shadowy sun sets on the one
    That fired the gun
    He’ll see by his grave
    On the stone that remains
    Carved next to his name
    His epitaph plain:
    Only a pawn in their game

    Copyright © 1963, 1964 by Warner Bros. Inc.; renewed 1991, 1996 by Special Rider Music

    "Soylent Green is people too, my friend!" Guess Who

    by oldmaestro on Sat Jul 05, 2014 at 08:12:27 AM PDT

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