Can federal courts ever become zealous defenders of individual rights under the Constitution?

Clark NeilyI went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.)  The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.

Neily is a great speaker. He speaks quickly, so you have to pay attention.  Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.

Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.

The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)

If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law.  Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination.  Worse, it turns the judge into an active part of the government’s defense team.  Or as Neily explains:

Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)

Here’s how this standard played out in a real case that is near and dear to Neily’s heart.  Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill:  she could arrange flowers.  We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels.  She put together the little posies at the local supermarket and was paid a livable salary to do so.  Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.

Meadows took the license test five times and failed it five times.  Lest you think she was an ignoramus, she wasn’t.  She didn’t have a problem with the 50 written questions.  Her problem was with the practical exam.  In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition.  That’s where poor Meadows failed every time.  She wasn’t alone.  I believe Neily said that the floral panel passed only 37% of test-takers.  Neily compared this to Louisiana’s State Bar pass rate, which is 61%.  In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.

Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost.  He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.

As Neily explained it, the judge rejected the government’s argument that a poorly-tied bouquet might fall apart in a bride’s hands, spilling flowers at her feet, and causing her to trip and injure herself at her own wedding.  Apparently that was too silly even for the judge to contemplate.  Instead, the judge had his own theory, and that won the day:  the florist license was necessary to protect against “contaminated soil.”  The judge was unmoved by the fact that nothing in the requirements for becoming a florist, or in the written exam, made mention of contaminated soil.  The mere possibility that contaminated soil existed in the judge’s mind meant that it could have existed in the legislature’s mind when it passed the law, and there you had it — a rational basis for destroying a person’s livelihood.

Meadows, incidentally, died in abysmal poverty thanks to the fact that the state of Louisiana, with the complicity of the federal judiciary, stole her livelihood.

Louisiana, of course, isn’t the only place where states play favorites when it comes to the right to work.  As I drove back from the lunch, I called my sister, an Oregon resident.  She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze.  In exchange for the story about poor Meadows, my sister told me that, in Oregon, you need a license to “serve” alcohol.  By this she did not mean that you need a license to work as a bartender or that a business establishment needs a license if it wants to sell alcohol to the public.  What my sister meant is that, if you’re the waiter who brings the wine from the kitchen to the diners’ table or the martini from the bar to that same table, you need a license to do so.  God alone knows what the “rational basis” for that is, but I can readily tell you the practical basis:  alcohol is often the most expensive part of a meal, so the server who brings it to the table gets the biggest tips.

There is nothing whatsoever in the Constitution that gives a limited government the right to put irrational hurdles in the way of people’s right to a job. The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do.  Black women braiding hair in Washington, D.C.?  They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too.  Incidentally, don’t kid yourself that the politicians who pass this legislation do so because they have a principled belief that, if they don’t, the Apocalypse will be minutes away.  They do it because they’re paid to do it in the form of campaign donations.  There’s nothing wrong with this . . . provided that the judges do their job.

So where do the judges stand in all this?  In theory, the judges should be a bulwark against this type of unconstitutional activity — except that they’re not.  Instead, they bend over backwards to keep the laws on the books.  Part of the problem is that they feel constrained by the Supreme Court’s “rational basis test.”  Neily pointed out, though, that at least two appellate court panels have basically said that “rational” must have one foot grounded in reality.  If the government’s lawyers can come up only with manifestly ridiculous theories involving Martians and tripping brides, these courts indicated that they were not required to lend a hand.

The bigger problem with the judges, which is one that George Will addresses in a column published just today about Neily’s book, is that too many judges are willing to give too much deference to state legislators.  The judiciary, after all, is the only branch of government given the task of protecting the Constitution.  Legislators aren’t too concerned with the constitution.  They’re concerned with passing laws, especially those that they’re paid to pass.  The judges, whether because they’re passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.

Incidentally, you should ignore the column title at the Washington Post, which suggests that courts should engage in judicial activism, a concept that is anathema to conservatives and libertarians.  Judges are not activists when they follow the Constitution.  They are activists only when the ignore or re-write it.  The column title was a WaPo addition, that has nothing to do with Will’s or Neily’s argument that judges need to step up and protect the Constitution — and, by doing so, to protect individual liberty against government overreach.

I’ve long thought that government-created monopolies are bad things.  I’ve had a lot of time to think about this, too, since I’ve been a member of California’s State Bar for more than 30 years, a “privilege” that costs me several hundred dollars a year, much of which is used to promote political causes that I deeply dislike.

My main grumble with the Bar, though, has always been the requirement that we have to take 25 hours of “minimum continuing legal education” classes every three years in order to keep our jobs.  One could argue that this isn’t such an onerous requirement.  Thanks to the internet, I was able to get all 25 hours done for $49.  In the beginning, though, back in the mid-1980s, it was a very expensive proposition.  Big firms could circumvent the cost by having a senior lawyer “teach” a room full of assembled junior lawyers. 

Sole practitioners, however, weren’t so lucky. They had to go out hunting for classes, and those classes were costly, ranging from $50 to $200 per hour.  Oh, and back in the day, you needed 12 hours a year.  As far as I could see, the only benefit flowed to the MCLE providers, who had a captive audience mandated to buy their goods.  (Hmmm, sounds like Obamacare, doesn’t it?)  Once I figured out that MCLE was a scam, I began to realize that the State Bar was a scam too — and an unconscionable monopoly as well.

If it were up to me, membership in the State Bar would be voluntary.  It would be something that the “better” class of attorney could boast about, just a they could boast about the myriad expensive classes they took in their specialty.  Bar membership would be a marketing advantage, rather than a monopoly.  In the old days, pre-internet, one could argue that the State Bar was the only reliable purveyor of necessary information about whether a person was qualified to be a lawyer, but that’s bunk nowadays.  I imagine that, were the bar to disband today, tomorrow there would be dozens of websites offering consumers information about lawyers and law firms.

At the end of the talk, I asked Neily how he expected any turnaround to happen in the courts.  After all, the Supreme Court itself is the author of the instruction that judges use the “rational basis” standard, complete with creative writing, in their approach to state-mandated monopolies.  Moreover, especially since Harry Reid destroyed the filibuster specifically to pack the federal courts, we can expect that there will be more judges on the bench, rather than fewer, who will always give obeisance to Big Government.

In answer, Neily said two things:  First, he thinks that the American people can only be pushed so far towards big government, before they push back in sufficient numbers to force a change in politics that will eventually be reflected in the courts.  He doesn’t see this happening instantly, but rather posits a 30 or 40 year trend toward more respect for the Constitution and individual liberty.  Let me just say, “From his lips, to God’s ear.”  Second, he told me that he discusses in his book some practical ideas for speeding the trend towards liberty, and you can be assured that I’ll check those ideas out.

All in all, although Neily kept his speech brief, it was sufficiently packed with interesting ideas and information to sustain a long telephone call with my sister, and an even longer blog post for all of you.  I look forward to reading Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, and getting even more information about the way America’s federal courts have abdicated their role as the Constitution’s guardians.

Harry Reid’s nuclear option is a red herring — but the effects will still be profound

Mitch McConnell is too often a GOP stalwart (as opposed to a conservative) for my taste, but when he’s good, he’s very, very good.  He was very, very good this morning, as he attacked Harry Reid’s attempt to change Senate rules so that only 51 votes are needed to get judges onto federal benches (except for the Supreme Court):

Even though Harry Reid’s nuclear option is a red herring meant to distract from Obamacare’s many and varied failings, it’s still an enormously consequential thing. I know all about ideologically packed courts, having practiced in the Bay Area for my entire legal career, and I can tell you that blind justice is never seen in those halls.

As with everything else the Left touches, law is not about applying settled, reliable principles to known facts.  Instead, on the civil side, it becomes purely redistributive. I cannot tell you the number of cases I’ve handled that saw the judge rule against my corporate client, even while admitting that my client had the better legal case. Nor can I count how many times judges have engaged in obscene intellectual contortions to ensure a redistributive outcome. I’ve even worked on a few cases in which appellate court justices have out-and-out lied about the facts in order to achieve a specific end — and then they’ve published those cases, making them case precedent in California.

A court that owes its fealty to a political ideology, rather than to applying settled law to undisputed facts, is an inherently corrupt institution. That corruption spreads far beyond the parties standing in the courtroom. Take just one example:  I worked on a case where a woman defaulted on loan. The bank sued. The woman’s defense was that she hadn’t read the loan documents. Settled law going back to forever says that the failure to read documents is not a defense to a default. The far Left judge felt differently. On the one hand, he had a mean bank; on the other hand, he had a poor little old lady. You can guess the outcome. You can also guess that, in future, the bank increased the cost of loans to offset bad debts such as this one.  You can also bet that the little old lady went home and let her community know that defaulting on a loan in San Francisco county was a reasonably safe thing to do.

The problems with an ideologically corrupt judiciary don’t flow solely from the lessons people take away as they walk out of the courtroom, even though such lessons resonate throughout the community and affect future behavior. There’s an even more insidious problem with a system in which the judge’s pick winners and losers based, not upon facts or law, but upon their place in their hierarchy of Leftist victim-hood.  It’s also the fact that the law is utterly unpredictable if the outcome is dictated by each judge’s personal redistributive biases. Businesses cannot operate in a system that isn’t predictable. They go one of two ways: they become as corrupt as the courts, since lawlessness is contagious; or they retrench, taking their services, products, and investments out of a market that is too unreliable for them to risk.

blind_justice

Justice Alito’s footnote sums up everything that is wrong with our judicial system

I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today.  (It’s not about content.  It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.)  I therefore didn’t discover this gem from Justice Alito in the DOMA case  Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)

Gay Marriage Open Thread

I really don’t have much to say about the DOMA decision.  I think it’s another Roe v. Wade in terms of creating rights that never existed.  The difference, though, is that the Supreme Court waited to make the decision until the tide had turned at the popular support level, with more and more Americans supporting gay marriage.

As for the Prop. 8 decision, I agree with a Facebook friend of mine who wrote:  “SCOTUS has made its ruling on Prop 8 today. No matter which side of the issue one comes down on, it should be frightening to all of us that an Attorney General of ANY STATE can simply choose not to defend ANY LAW and *POOF* the law will be overturned.”  There lies the way to tyranny, when the people no longer have standing on their own behalf.

Lastly, Kennedy has altogether too much power.  I never get the feeling that the guy has any fixed legal or constitutional principles.  At least the guys (and gals) on the Left are Lefties and the guys on the right are Righties (except for Chief Justice Roberts, who I think was blackmailed on ObamaCare).  Kennedy is a “whatever.”  When I was in law school, there was a saying that “the law is what the judge had for breakfast.”  With Kennedy, it’s also what he had for lunch, dinner, and his little midnight snack.

Please chime in here with your feelings on the subject.

 

FDA must make Morning After pill available over the counter to everyone

Birth Control Pills

Kathleen Sebelius, showing one of her rare moments of good sense, had the FDA limit the Morning After pill to girls and women over 17.  A federal judge in Brooklyn has overruled that, saying it must be sold over-the-counter without limits to help slow teen pregnancy. I’m not going to discuss morality right now.  I’ll take a minute to discuss the logic:  it’s not the judge’s business to make this decision about medicine.  It was Sebelius’s decision, and for once she made the right one.  If she made a stupid one, the people could raise up their voices and protest.  Since it’s now law, the people are stuck.  Gawd, I hate judges. I wish them well personally as human beings, as sons and daughters, husbands and wives, sisters and brothers, but I wish that every Democrat judge would leave the bench.

Here’s what you need to know about this drug’s side effects, which range from uncomfortable to “are you out of your ever-loving mind to let a 12 year old, who is still developing hormonally and mentally take this?”:

Minor Side Effects

Minor side effects of the morning after pill may include abdominal pain, breast tenderness, diarrhea, dizziness, fatigue, headache and nausea.

Menstrual Side Effects

The timing or heaviness of your next period may be affected. Menstruation may be lighter, heavier or delayed after taking the morning after pill.

Serious Side Effects

The morning after pill can change blood sugar levels, which is potentially dangerous to diabetics. Severe abdominal pain is considered a serious side effect and may be an indication of ectopic pregnancy.

Ectopic Pregnancy

Ectopic pregnancies occur when a fertilized egg attaches outside of the uterus. If the morning after pill fails to prevent pregnancy, ectopic pregnancy is possible.

This drug is a pedophile’s dream — rape your 12-year-old stepdaughter, or niece, or girlfriend’s daughter, or neighbor girl, threaten to kill her or her loved ones if she talks, and to Walgreen’s to buy a pill that hides the evidence.

In California, if you’re under 18, you can’t shoot paint balls without a parent’s consent, nor can you get a fake tan or have your ears pierced.  You can, however, at age 12, with an immature mind and a maturing body, walk into Walgreen’s and order a medicine that has a significant effect on your hormonal system.

Pfui!!

 

Sotomayor reminds us that affirmative action is terribly unfair

Justice Sotomayor

Justice Sotomayor came to San Francisco and inadvertently made the case that affirmative action terribly unfair — and, moreover, that people are right if they believe, not that it gives qualified minorities a chance, but that it handicaps non-minorities at the expense of any minorities, qualified or not.

Let me unpack that first sentence.  All of us would like to see bright, hard-working kids succeed.  We have an innate sense that it is “fair” that those who work hardest get opportunities.  We approve of scholarships that reach out to poor children, enabling them to get the benefit of their own hard work and intelligence.

What we don’t like is a system that says to completely ordinary kids who make no specific effort:  “You!  Yeah, you.  Although you are undistinguished in all relevant ways, you’re going to get a leg up simply because of your race.”  In the old days, that sentence, more fully written, read “Although you are undistinguished in all relevant ways, you’re going to get a leg up simply because you’re white.”  Looking back now, we realize how heinous it was to spread opportunities unevenly simply because of race.

Yet that’s precisely what affirmative action does — spread opportunities unevenly because of race.  The government, rather than being magisterially even-handed, has taken sides.  Instead of funding scholarships for accomplished young people, it funds scholarships for racially appropriate people (emphasis mine):

Supreme Court Justice Sonia Sotomayor, in town Monday to promote her newly released memoir, said she couldn’t talk about affirmative action because of a pending court case. In the next breath, she talked about what it had meant to her – admission to Princeton and Yale Law School and the launching of a legal career.

“I was given the chance to get to the start of the race and it changed my life,” the 58-year-old justice told a sold-out Commonwealth Club audience at the Herbst Theatre in San Francisco.

When she entered Princeton on a scholarship in 1972 despite unspectacular test scores, she recalled, the school was in only its third year of admitting women and had barely a handful of minority students.

Isn’t that nice for Sotomayor?  She got into Princeton despite the fact that she didn’t qualify.  And doesn’t it just suck for the hard-working white or Asian kid who, in that same year, had spectacular test scores (not to mention good grades), but was nevertheless barred from Princeton because Sotomayor took her place?  If Sotomayor had been a brilliant student, it’s probable that none of us would have cared that she, a kid from a dodgy New York neighborhood, was granted admission over a kid from somewhere suburbia.  What grates is that Sotomayor hadn’t earned her place academically.

I recognize that Sotomayor’s opportunity came about in 1972, when affirmative action was meant to be a quick fix — a head start — to make up for the decades of discrimination that immediately preceded those first few years of affirmative action.  What rankles is that, two generations later, we’re still giving a hand up to mediocre people in the name of race.  In other words, we’ve institutionalized racism just as certainly as those Jim Crow people did.  We now frame it affirmatively, in that we boast that we’re pulling some people up, as opposed to pushing other people down, but it’s the same thing:  too often race, not merit, determines who gets to grab the educational and employment gold ring.

Sotomayor seems like a nice, hard-working woman, although I couldn’t disagree more with her approach to the law.  She also seems like someone who benefited from an inequitable program at a time that at least gave some credibility to the program, but who now seeks to use the extraordinary power granted to her to make Leftist Jim Crow laws a permanent part of America’s racist landscape.

________________________

*I’d originally written “economically disadvantaged children,” and then thought, “Why am I cluttering my writing with this lardy PC jargon?”  So I changed it to “poor children,” which makes the point just fine.

Your betters in Washington are just more important than you are

There’s still time to make a stand by signing the White House petition urging that we establish “gun free zones” around the President, VP, and their families.  The thinking is that what’s sauce for the goose (we, the People) should definitely be sauce for the gander (our employees in Washington, D.C.). As of now, the Petition needs only 4,511 more signatures.  I would love to see the White House explain why the Progressive privileged few are more important than you and your children.  (I assume they’ll talk about the increased risk to them because of their office, but it seems to me that the residents of Washington, D.C., Chicago, Detroit, Houston, and L.A. slums are at infinitely greater risk.)

I was reminded again of Progressive double standards when I saw 60 Minutes’ slobbering love letter to Justice Sotomayor.  (Funny, I don’t remember that kind of drooling love for Clarence Thomas, who has an equally compelling life story.)  The story opens with the love-struck reporter taking a walk with Sotomayor through her childhood stomping grounds in the Bronx.  That would be fine, but for the fact that the first minute of the story points out, not once, but twice, that she’s surrounded by armed guards.  First, the reporter makes a verbal point of that fact; then the Bronx segment ends with Sotomayor taking a group shot with the five members of the NYPD drafted to provide her with a type of protection none of her former neighbors will ever see.

From Sotomayor’s armed guards, to Obama’s Secret Service for life, to David Gregory getting a pass for blatantly breaking the law, the message is clear — our Progressive overlords are more important than those who pay their salaries.

Near the end of the 19th century, Anatole France famously quipped that “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” The joke, of course, was that the rich would never be caught engaging in those illegal activities. In Obama’s America, the joke has gone one step further: the Progressive elites get to engage in precisely the same activities as ordinary folks do, including illegal acts, but they get to do so wrapped up in cotton wool that protects them from the risks they’ve forced upon the regular Joes in this great country.

The Watcher’s Council forum examines the ObamaCare opinion

If you’d like to see in one place a broad range of opinions about the Supreme Court’s ObamaCare decision (or, more accurately, opinions John Roberts’ intellectual spasm), check out this week’s Watcher’s Council forum.  This is a special one, because we not only have a sampling of Council members participating (including me), but we also have two wonderful guest contributors:  Robert Avrech and Maggie.

Is there a rehearing in ObamaCare’s future?

You probably know that Glenn Reynolds pointed out that, if the administration is going to go around arguing that ObamaCare isn’t a tax, they’re conceding that it’s unconstitutional.  That’s a clever line, but Rhymes With Right explains that the administrations’ strenuous denials also open a pathway to a Supreme Court rehearing.

Judge Roberts’ decision forces Americans to stand on their own two feet — and that’s a good thing *UPDATED*

[UPDATE:  Since I wrote this post, there is now reason to believe that Roberts issued his opinion for the wrong reasons, not the right ones.  If I were to rewrite this post today, I would be less charitable to the man.  Nevertheless, putting aside Roberts' motives, I stand by the substance of my post, which is that it forces conservatives to recognize that they cannot look to any branch of the government for succor from Big Government.]

Now that the first shock of the Roberts opinion is over, many conservatives are very busy digging through the pile of manure, confident that there’s a pony in there somewhere.  In this, we are distinct from our Progressive/Democrat counterparts, who would be busy rioting in the streets and sending death threats to John Roberts.

Having had more than 24 hours to come to terms with the decision, I’m beginning to think that there may indeed be a pony (or several ponies) hiding in there somewhere.  Moreover, I’m also realizing that Roberts, despite the apparent wackiness of his decision, stayed true to his constitutional roots.

As is always the case with me, I build my argument slowly, so please bear with me.  I’ll try to maintain some tension and excitement as I go.

Speaking of tension and excitement, my first point involves a screaming fight some colleagues of mine got into yesterday.  Because they’re nice folks, it wasn’t a vicious, personal, ad hominem fight.  They just kept making the same points over and over again, at ever-increasing volume.  They seem to have locked into the same line of reasoning that says that, if you speak really LOUDLY to someone who doesn’t understand English, you will make yourself understood.

The topic my friends were debating was whether heroin should be legal or not.  One side staunchly opposed legality because heroin is so dangerous; the other side equally staunchly advocated legalizing the drug, because it has benefits that go beyond the medicinal.  (I’ll take the other side’s word for it, since recreational heroin seems merely self-indulgent to me.)

What was fascinating was that both sides laid claim to the government to support their argument.  Those who feared heroin’s risks felt that only the government could protect Americans from the drug’s dangers.  Those who believed it should be legalized, after pointing out correctly that making heroin illegal doesn’t stop either its use or the societal downsides, believed that only government could manage heroin.  These people envisioned corner dispensaries, apparently along the line of the DMV.

At a facetious level, I have to agree with the guy who wants to put heroin in government hands.  Can you think of anything that would make heroin less appealing than having to deal with government functionaries a la your local DMV?  I can just see it now:  Long lines, rude clerks, poor quality service, mountainous bureaucracy and, to make it worse, you’ve got the joneses the whole time.

At a more serious level, both sides were right and both were wrong.  Making heroin illegal hasn’t stopped heroin use, just as it hasn’t stopped marijuana use, or underage drinking.  Putting it in government hands, however, is a recipe for corruption and still won’t stem abuse.  It will just make the government the pusher, which is a sleazy and awful idea.

Perhaps the smartest thing is to legalize heroin and put it into the free market.  Then, as we do with alcohol, we punish behaviors that stem from the abuse, such as driving under the influence or, less directly, any robberies, assaults, etc., that results from someone’s need for the drug or use of the drug. Let individuals make their choices.

Of course, some individuals aren’t in a position to make a choice.  They get the burdens, not the benefits.  Which leads me, inevitably, to Prohibition.  (Believe it or not, I’m still on track to a rip-roaring conclusion about Justice Roberts’ opinion.)

Prohibition was not the result of whacked out Church ladies, anxious to destroy all joy in the world.  Instead, it arose in response to an alcohol-soaked culture, one that saw working men instantly spending their paychecks at the local saloon.  “Father, dear Father, come home with me now,” wasn’t just a maudlin song; it was real life for tens of thousands of children, begging their father to leave the saloon and bring what little remained of his week’s pay home to the family.  Of course, when father came home, there was always the risk that he’d beat the living daylights out of Mama and the kids, but as long as he brought some money with him, what could you do?

The Dry Movement was a direct response to America’s sodden state.  But here’s the thing:  the reason Prohibition passed was because the culture changed so radically that a critical mass of Americans could force a change to the Constitution.  By 1920 — and this is something no one at the time realized — the paradigm shift in American culture was probably sufficient to change its drinking habits without coercive pressure from the federal government.  Drinking was no longer morally acceptable in many communities, which were already dry by 1920.  Local values controlled.  People who hated alcohol could move to a Dry town or they could agitate to change things within their own communities.

Once the government stepped in to control alcohol (and it was controlled, rather than completely prohibited, as certain religious or “medicinal” brews were still allowed), all Hell broke loose.  We became a nation of scofflaws, organized crime, and corrupt law enforcement.  Yes, drinking did continue to diminish, but it had already been diminishing before the Feds stepped in.  All that happened with government-control is that bad things happened too.

You can see an analogous situation with Johnson’s Great Society.  In the years leading to it, two things happened in America:  The Civil Rights movement, which focused on the serious wrongs done to black Americans, and which was a topic that dominated America’s intellectual airspace; and the rise of the black middle class, which happened behind the scenes as the culture changed.

Laws banning discrimination rightly addressed the Civil Rights crimes.  However, the Democrats added to the mix huge changes in welfare, i.e., Government-involvement in black lives.  As is so often the case with the government good intentions, the massive legislative intervention into American life — and, specifically, into black American’s lives — reversed black folk’s economic advancement.  If the government could just have stopped itself with leveling the playing field, it’s questionable whether today blacks would consistently rank among America’s poorest, least educated, and crime-ridden population.  The problem was that, in the 1960s, as in the 1920s, Americans, especially educated Americans, couldn’t conceive of an organic solution to a visible problem.  Government had to “fix” things.

Which, at long last, gets me back to health care and Justice Roberts’ decision.  (And you doubted that I would ever loop back to my main point.  Oh, ye of little faith!)  Roberts wrote the decision at the end of a 90 year continuum holding that Government fixes problems and the Supreme Court fixes Government.  This approach makes “We, the people” unnecessary.  Rather than elections being the corrective, the Court is the corrective — except that the Court’s make-up is controlled by the Government.  (Remember the Bork debacle?)

Roberts refused to play this game.  He slapped back the Democrats’ hands when it came to the Commerce Clause, telling them that the federal government cannot legislate inactivity.  And he held — quite correctly — that if there’s any possible way for the Court to salvage a law, it must do so.  His salvaging was to say that, this particular law, written in this particular way, with these particular controls over the people, can be salvaged by calling it a tax.  It’s an ugly decision, but probably a correct one.  And then he tossed the whole thing back to the American people.

I can just see Roberts’ thought-process (although he might have thought in more polite terms):  You idiots elected a Congress and president that used every kind of political chicanery known to man in order to pass the biggest tax in American history and one that, moreover, completely corrupts the free market system.  It’s not the Supreme Court’s responsibility to correct that kind of thing, provided that the judges can, as I did, find a smidgen of constitutionality in it.  There’s an election coming up in November.  Let’s hope you’ve wised up enough to figure out that my Supreme Court is returning power to “We, the people.”  We will not pull your chestnuts out of the fire.  We will not legislate from the bench.  We will construe things as narrowly as possible.  If you, the people, don’t like it, you, the people, elect different representatives.

In the short run, this is an enormously painful pile of manure for American conservatives.  In the long run (a run that, I hope, includes November 2012), if we Americans are smart and genuinely believe in our liberties, we’ll find so many ponies in that manure we’ll be able to have a pony parade right up to the steps of White House and both Houses of Congress.

 

Second and third thoughts about the ObamaCare decision, which does have some saving grace

I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head.  In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War.  One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory.  By parsing the decision as he did, Justice Roberts prevented another American civil war.

When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines.  If I’m in sync with Krauthammer, I’m clearly in good company.

Krauthammer’s view is that Roberts wears two hats.  The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause.  The second hat is as the Supreme Court’s custodian.  That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans).  So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I think Krauthammer’s analysis is correct.  Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed.  He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere.  The American voters, by putting Democrats into Congress and the White House, broke the American system.  They now own that broken system and it’s up to them to fix it.  In this case, if the voters are smart enough, they’ll elect Republicans by a large majority.  If they’re not smart enough, we’re in for a lot more breakage.

Viewed this way, Roberts did the right thing.  He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.

The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election.  They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head.  Unfortunately for Obama, Romney will be able to rally his base.  If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012.  Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.

Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals.  This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct:  taxes on the middle class.

That’s all good.  What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause:  From this day forward, Congress can not only tax activity, it can also tax inactivity.  Long after Obama is gone from office, that legacy will remain.  The only saving grace is that taxes require simple majorities.  Easy come, easy go, one might say — except that taxes never go away easy, do they?

 

A careful analysis of the ObamaCare ruling (NOT)

I’ve now had the chance to digest myriad analyses of the Roberts decision on ObamaCare.  I think I can sum up the various conclusions that liberal and conservative pundits have reached.  Here goes:

The decision is a victory for Obama and the Democrats because it keeps ObamaCare on the books.  However, it’s a victory for Mitt Romney and the GOP because it reminds Americans that Democrats like to tax them.  The only problem with the latter view is that Americans aren’t paying attention to things like ObamaCare and taxes and these credulous citizens will just role with whichever side looks victorious, which is either the Democrats and the Republicans.

The only exception to the rule that Obama’s role with the winner is the Tea Party, which is likely to be galvanized into action.  Naturally, though, the Tea Partiers are too demoralized to do anything constructive, other than riot in the streets.  We know from past Tera Party events that the smiling grannies togged-out in matching red, white, and blue outfits are especially dangerous.

ObamaCare will never be repealed because the Republicans cannot get a majority in 2012, let alone win the White House.  This is a “true fact” as long as you take into consideration that Mitt Romney will almost certainly win the 2012 election on an anti-tax platform and that the House will stay Republican.  The Senate, of course, can go either way, with Republicans getting either 51 seats (enough to reverse a tax) or 60 seats (enough to prevent President Obama, who will definitely win in 2012, from vetoing a repeal.

If the Republicans take over both Congress and the White House, which won’t happen, they can fully repeal ObamaCare, which won’t happen.  However, if they only keep the House, they can refuse to fund ObamaCare, which is great, because it leaves it useless, except for all of the mandates that continue to exist.

Over the long haul, of course, Americans are more free because the decision restricts the Commerce Clause.  This, however, ignores the fact that they’re less free, because they can be taxed for anything, including breathing or, as the case may be, not breathing.

John Roberts is someone who is suffering from a seizure disorder and is probably being blackmailed.  Neither of these factors really matters, though, because the Chief Justice is clearly a Machiavellian bridge, chess, or poker player who is taking the long view and setting the Republicans up to win in 2012 on the issue of higher taxes.  Or he’s taking some sort of really long view that enables Obama to do a victory dance in November 2012 because his signature legislation survived.  In a second Obama term, with a Democrat House and Senate, people will really learn to hate those tax-and-spend Democrats.  Those few remaining Americans who have not been sent to re-education camps or have not been disenfranchised by a vote transferring all citizenship rights from native-born Americans to illegal aliens, will have the opportunity in 2016 to make all 48,739 of their voices heard.

In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties.  Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.

I hope everyone understood this lesson.  There will be a test tomorrow.

Congress not only can tax anything that moves, it can tax anything that doesn’t move

The Supreme Court opinion on ObamaCare runs to 193 pages.  It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it.  I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through.  For now, bottom line is sufficient.  Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.

Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

Taxes have traditionally been levied to enable the government to buy and build things.  This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors.  Taxes normally tax activity.  Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction.  That’s the important thing.  The transaction is voluntary.  You can opt to sit it out and the government cannot reach you.  Here, though, we are being told that the government can exact an onerous tax for inactivity.

The decision constitutes a radical redefinition of what constitutes a tax.  It is exactly what opponents said it was:  the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid.  I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it.  It is a staggering constriction on individual freedom.  The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy.  Poll taxes are flat taxes but, more importantly, they tax someone just for being.

Okay, that’s the bad news and it’s very bad in the long-term.  There are some potential short-term benefits, although they’re only possible, not probable:

Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded.  Still, unfunded doesn’t mean vanished.  All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.

The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney.  That’s so not a sure thing, though.  It’s a great victory for Obama, and might finally put the wind at his back.  His signature legislation is a good thing, said the United States Supreme Court.  For many Americans, that might fall into the category of “that’s all she wrote.”  The fat lady has sung.  The opera is over.  It’s time to go back home and get on with your life.  If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money.  (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)

I am disheartened, but disheartened is not the same as defeated.  It is now imperative that Republicans take back Congress in its entirety and win the White House.  Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.

Others blogging:

Kim Priestap

Maggie’s Farm/Bruce Kesler

American Power

The Anchoress and The Anchoress again

The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)

Jay Cost (this may harm Obama more than he thinks in the long run)

Slate (Obama wins battle; Roberts wins war)

Noisy Room

 

What do you bet that, if this is true, the source is Elena Kagan?

The White House and the lapdog media have an unusually depressed, belligerent tone when it comes to the upcoming opinion on Obama Care.  They’re even more depressed than they should be given the pathetic showing their case (not their lawyer, but their case) made during oral argument.  Put another way, it’s hard to believe that, after two years of intellectual denial, they can’t also deny away a single day of bad argument.  Their malaise is due to something greater than one bad day.

This bizarre black cloud leads at least one Supreme Court observe to suspect that the unthinkable happened — the formerly leak-proof Supreme Court leaked (emphasis mine):

It doesn’t take a Washington insider to suspect that the White House has a back channel to the Supreme Court, knows how the justices have come down in the Obamacare case and has learned, from the Obama point of view, the news isn’t good.

The president’s defiance and what appeared to be his campaign of intimidation targeting the justices has morphed into barely concealed resignation over the last seven days.

That widely noted New York Times story of the weekend is a case in point.  It detailed how the smartest crowd (hasn’t the MSM assured us of it) that has ever inhabited the nation’s Executive Mansion failed ever seriously to consider that seizing control over one-seventh of the American economy and forcing every American to buy a commercial product might, just might, run afoul of our constitution of liberty.

At Power Line, where I first stumbled across this leak theory, Steven Hayward points out that, in the past, a combination of judicial discipline and law clerk career fear kept the Court silent:

Why is the Supreme Court better than the intelligence community at keeping secrets?  The nine justices are disciplined enough, but what about their clerks, who surely have night lives, close friends, etc.?  Possibly the problem of ruining their promising subsequent legal careers (and the not insubstantial ethics clearance they might blow by leaking) explains it, but it is still a marvel that the Court’s decorum has held for this extraordinary case.

I’ve known former Supreme Court clerks and, yes, their eye is on their future career.  They are not the type of people who would carelessly jettison that future.  But there is someone on the Supreme Court whose future is already assured, who has proven herself to be a shill to the monied powers, who once worked hand-in-glove with this White House, and who is a total Progressive ideologue, who has regular placed politics against principle.  She’s also a newbie, which would explain why I’m not talking about Justice Ginsburg, who has kept mum during her tenure.  Yes, Elena Kagan, I’m talking about you.

This is pure speculation.  I’ll never be able to prove it.  Nevertheless, if there is a leak, which is a guess, I’m further guessing that Kagan is the leaker.

It isn’t the Supreme Court’s job to re-write a Congressional bill that’s had its unconstitutional heart cut out

In one of his more delightful articles, Jonah Goldberg tackles Justice Ginsburg’s disingenuous claim that the most “conservative” thing the Supreme Court can do is to pick its way through all 2,700 pages of the ObamaCare bill and save all the good bits.  After politely decimating Ginsburg’s word choice, Goldberg has this to say:

The conservative thing to do — and I don’t mean politically conservative — is to send the whole thing back to Congress and have it done right. Leaving aside the fact that Obamacare largely falls apart if you remove the mandate, it’s not the Supreme Court’s job to design our health-care system from the scraps Congress dumps in its lap. What Ginsburg proposes is akin to a student handing in a sloppy, error-filled term paper, and the professor rewriting it so as to give the student an A.

Goldberg’s charming analogy reminded me of something a friend told me.  Although a conservative, she’s a strong, brave woman, and still listens to NPR.  (I don’t, because I find myself screaming at the radio too much, especially with NPR’s Israel coverage.)  During a call-in show, she said that several of the callers were deeply offended that the conservative justices used analogies, such as questions about broccoli and cell phones, to discuss ObamaCare’s provisions.  The tone seemed to be “How dare those evil conservatives dumb down a sophisticated act to appeal to the rubes in America in order to justify destroying the best legislation ever.”

I was actually reminded of someone who used analogies with incredible grace to simplify (not destroy, but make accessible) challenging ideas:

Behold, a certain lawyer stood up and tested him, saying, “Teacher, what shall I do to inherit eternal life?”

He said to him, “What is written in the law? How do you read it?”

He answered, “You shall love the Lord your God with all your heart, with all your soul, with all your strength, and with all your mind [Deuteronomy 6:5]; and your neighbour as yourself [Leviticus 19:18].”

He said to him, “You have answered correctly. Do this, and you will live.”

But he, desiring to justify himself, asked Jesus, “Who is my neighbour?”

Jesus answered, “A certain man was going down from Jerusalem to Jericho, and he fell among robbers, who both stripped him and beat him, and departed, leaving him half dead. By chance a certain priest was going down that way. When he saw him, he passed by on the other side. In the same way a Levite also, when he came to the place, and saw him, passed by on the other side. But a certain Samaritan, as he traveled, came where he was. When he saw him, he was moved with compassion, came to him, and bound up his wounds, pouring on oil and wine. He set him on his own animal, and brought him to an inn, and took care of him. On the next day, when he departed, he took out two denarii, and gave them to the host, and said to him, ‘Take care of him. Whatever you spend beyond that, I will repay you when I return.’ Now which of these three do you think seemed to be a neighbour to him who fell among the robbers?”

He said, “He who showed mercy on him.”

Then Jesus said to him, “Go and do likewise.” — Luke 10:25–37, World English Bible

****

He told them this parable. “Which of you men, if you had one hundred sheep, and lost one of them, wouldn’t leave the ninety-nine in the wilderness, and go after the one that was lost, until he found it? When he has found it, he carries it on his shoulders, rejoicing. When he comes home, he calls together his friends and his neighbors, saying to them, ‘Rejoice with me, for I have found my sheep which was lost!’ I tell you that even so there will be more joy in heaven over one sinner who repents, than over ninety-nine righteous people who need no repentance.” — Luke 15:3-7, World English Bible

I don’t call this dumbing things down.  I call it the wisdom to drill down into something’s essential element and the skill then to communicate those core principles (whether they are good, as with the parables, or bad, as with ObamaCare) to others.

P.S.  I am not likening the conservative Supreme Court justices to Jesus Christ.  I’m just saying that smart analogies are a staple of intelligent communication, and should be admired, not denigrated.

 

Second guesses and theories about the Supreme Court decision and its aftermath

In the days and weeks preceding oral argument before the Supreme Court on ObamaCare, all Democrat (politicians and pundits) and a surprising number of conservatives were convinced that the Supreme Court would sustain ObamaCare.  After two and a half days of argument, the conventional wisdom has suddenly shifted.  Democrats are sure they’ll lose, and conservatives are cautiously optimistic.

With this radical shift, something else has happened:  Democrats are boasting, and conservatives are worrying, that a Supreme Court loss is the best thing that could happen to the Democrats.  Both claim that if the mandate alone goes, the remainder of ObamaCare will survive and be better than ever; and both also claim that if the entire bill goes down, ObamaCare’s loss will reinvigorate the base in November, while possible ensuing chaos in the health care world will so frighten ordinary Americans that they’ll demand a big government solution.

The Democrats’ spin make sense.  It’s all they can do.  The conservatives’ spin is less easy to understand.  Are conservatives guarding against hubris?  Is this a case of “hope for the worst, but plan for the best”?  Our we overestimating the Obama-ite’s tactical brilliance?  The last is intriguing, actually.  The theory goes that Obama and Co. decided that they could make more hay out of a loss than a victory, so they actually encouraged the Solicitor General to humiliate himself and basically appear like an articulate idiot.  They want to lose, because it sets them up for some even more nefarious plan.

There is such a thing as over-thinking things.  Under the above world view, it is impossible for conservatives to win.  If we lose before the Supreme Court, we lose.  If we win before the Supreme Court, we lose.  This is an unsustainable mindset.  You have to fight your battles as they come.  It is possible to win most of the battles and lose the war, but it’s more likely that the party with the greatest number of victories in separate battles also wins the war.  The one thing that’s certain is that, if you lose all the battles, you also lose the war.

I have been over-thinking something myself.  As jj noted in his comment to an earlier post, it is unconscionable that Elena Kagan is one of the sitting justices for this ObamaCare decision.  She was an important part of its passage, not to mention an ardent cheerleader.  Each of these facts creates an overwhelming appearance of bias and impropriety that, with nothing more, should force a judge’s recusal.  Yet Kagan didn’t recuse herself and, it seems, Chief Justice Roberts didn’t push the issue.

I’m wondering if they struck a deal….

Roberts must have realized that Obama’s base would become something close to insane, and probably violently so, if Kagan was knocked off this panel.  Perhaps he said to her something along the lines of, “You can stay, and you can help them out in oral argument, but you vote with me when the time comes.”  His role as Chief Justice means that he has considerable power to make Kagan’s Supreme Court tenure pleasant or unpleasant.  I can imagine him using a little polite blackmail.

Speaking Roberts, in my humble estimation, he has been the best Chief Justice in my remembered lifetime.  I have a great deal of faith in his management skills and, if he believes ObamaCare should be struck down in its entirety, I can see him making it happen — especially when it comes to encouraging Justice Kennedy to make the right decision.  (And jj, you’re right about that too, which is that it’s unconscionable that a man of very weak principles, although he does seem to side with individual liberties, is the one who seems to bear the whole burden of upholding the Constitution’s integrity.)

Ruth Bader Ginsburg’s disdain for the Constitution she swore to support and defend

On August 10, 1993, as one of the requirements for becoming a United States Supreme Court justice, Ruth Bader Ginsburg placed her hand on the Bible and spoke the following words:

I, Ruth Bader Ginsburg, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.

Apparently the aged Supreme Court justice needs a refresher course on her solemnly sworn oath.  How else to explain the fact that she went on Egyptian TV and spoke disparagingly of the United States Constitution as a passé document that is no longer good enough to protect human rights?

Ginsburg, who has been rendering stultifyingly unintelligible liberal opinions since 1993, clearly doesn’t understand that the best and only way to protect human rights is to rein in government.  Otherwise, the government giveth and the government taketh away.  With the stringent controls in the Bill of Rights, and the checks and balances in the remainder of the Constitution, there would be nothing to prevent the United States government from having gone Chicago long before Obama took the oath of office.  And even now, Obama is ever so slightly constrained by at least the appearance of Constitutional propriety, something that buys us time (assuming he’s out of office by January 2013).

Even legal ethics opinion writers cannot resist the urge to be anti-Republican pundits

As a dues paying California lawyer, I periodically receive an email from the California State Bar offering random tidbits and squiblets of news some assumes California lawyers might find interesting.  The January edition intrigued me because of drive-by punditry that appeared in an ethics analysis of Judge Richard Posner’s latest decision.  I wasn’t paying attention, but Posner’s decision apparently has lawyers talking because as it takes very direct aim at a specific lawyer, and does so using rather broad humor.

There’s nothing new about a judge taking potshots at a lawyer.  One of the funniest (and meanest) opinions ever written comes out of a federal court in Texas and includes the foll0wing gems:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

[snip]

Plaintiff seems to rely on the fact that he has pled Rule 9(h) and stated an admiralty claim versus the vessel and his employer to demonstrate that maritime law applies to Phillips. This bootstrapping argument does not work; Plaintiff must properly invoke admiralty law versus each Defendant discretely. Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.

Now, alas, the Court must return to grownup land.

[snip]

The Fifth Circuit has held that “absent a maritime status between the parties, a dock owner’s duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law. Specifically, maritime law does not impose a duty on the dock owner to provide a means of safe ingress or egress. Therefore, because maritime law does not create a duty on the part of Defendant Phillips vis-a-vis Plaintiff, any claim Plaintiff does have versus Phillips must necessarily arise under state law. Take heed and be suitably awed, oh boys and girls — the Court was able to state the issue and its resolution in one paragraph … despite dozens of pages of gibberish from the parties to the contrary!

[snip]

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant’s Motion for Summary Judgment is GRANTED.

[snip]

In either case, the Court cautions Plaintiff’s counsel not to run with a sharpened writing utensil in hand — he could put his eye out.

Bradshaw v. Unity Marine Corp., Inc. (S.D. Tex. 2001) 147 F.Supp. 2d 668.

Bradshaw is a remarkably savage opinion, and one that will follow plaintiff’s attorney to the end of his career.  It is also, quite possibly, deserved.  After all, there are myriad decisions in which courts have chastised, sanctioned and even disbarred attorneys for poor or despicable behavior.  Bradshaw stands out only because it adds the humiliation of being laughed at to what is probably a deserved reprimand.  (Lord knows, I’ve appeared opposite attorneys who operate on the “bury someone under paper” principle, an approach that invariably generates, not just dozens, but thousands of pages of gibberish.)

Judge Richard Posner therefore did nothing out-of-the-ordinary when he delivered a strong rebuke to an attorney in front of him.  Even the fact that he used humor was not sufficient to make it stand out.  Posner, though, added something a little different:  pictures.  To make known his disdain for counsel’s decision to file what he considered a completely unwarranted appeal, Posner had this to say — and show:

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).


I don’t particularly take umbrage at what Posner did.  Using rather amusing pictures strikes me as better than being sanctioned heavily or referred to a State Bar for disbarment proceedings.  And if indeed the lawyer ignored controlling law, that’s a big no-no, and deserves some judicial umbrage.

Although it’s not entirely clear, though, Diane Karpman, who wrote the ethics post from the California State Bar, seems to believe that it was a bad thing for Posner to use illustrations to take aim at a lawyer who violated appellate rules.  Thus, after carefully explaining the decision, Diane Karpman poses a series of questions indicating, without actually saying, that she thinks that maybe Posner crossed a line:

Is it acceptable conduct or unacceptable conduct to make a public spectacle of the lawyer? McKeand is now (and forever will be) known as the “Ostrich Lawyer.” As lawyers, we all make silent promises to members of the bench to protect them from ridicule and scorn, because they cannot protect themselves. Isn’t there a reciprocal promise made that everyone will behave in a civil, respectful and professional manner?

Those are fair questions.  Where Karpman goes of the rails as far as I’m concerned is in the paragraph immediately following, when she suddenly becomes political pundit, turning on Newt Gingrich:

Now we have Newt Gingrich, who in the final Iowa debate described the courts as “grotesquely dictatorial,” and who wants to subpoena justices before Congress to explain decisions he rejects.

Did you see that coming?  I didn’t.  As far as I can tell, it’s a complete non sequitur.  I can certainly conceive of an argument that might lead into this bit of punditry.  For example:

Although judges have the power to sanction the attorneys who appear before them, that should not give them the right publicly to ridicule those same attorneys by likening then to animals or to otherwise demean them.  Engaging in this type of judicial conduct lowers the judges’ own standing, leaving themselves open to challenges to their authority.  In such an environment, it is not surprising the Newt Gingrich has proposed making judges more accountable.  While Newt’s proposal is fatally flawed insofar as it attacks the separation of powers, there is no doubt that judges who behave vindictively, rather than showing a true judicial temperament, leave the door open to these kinds of political challenges.

By the way, I’m not saying that I agree with what I just wrote.  In fact, I happen to feel that way too many judges erroneously liken themselves to priests, whose ordination makes them conduits to a higher moral authority.  I’ve seen too many judges who believe that, merely by donning that iconic black robe, they’ve suddenly hooked into a hotline to some higher truth, one that usually has little to do with statutory and case law, and a great deal to do with Progressive ideas about social justice.  (Can you tell that I’ve spent my legal career in the San Francisco Bay Area, heartland of activist judges?)

What Karpman seems not to understand is that, if you’re desperate for some punditry, there’s a way to do it gracefully.  She made no such graceful transition.  In the middle of a mild challenge to what she apparently perceives as Judge Posner’s discourtesy, she suddenly, and irrelevantly, launched random criticism against Newt Gingrich.  This is liberal drive-by wannabe punditry at its worst.

“In God We Trust” banned in California classrooms

Do you have any spare change lying around?  Yes?  I thought you might.

My dollar coins say “In God We Trust.”

My dollar bills say “In God We Trust.”

My quarters say “In God We Trust.”

My dimes say “In God We Trust.”

My nickels say “In God We Trust.”

My pennies say “In God We Trust.”

Every time I touch American legal tender, I touch the words “In God We Trust.”

Nevertheless, it turns out that those words are illegal — if they appear, not on a student’s coins, but on his classroom wall:

Saying a high school teacher has no right to “use his public position as a pulpit,” a federal appeals court ruled Tuesday that a San Diego County school district was on solid legal ground when it ordered a math instructor to remove large banners declaring “IN GOD WE TRUST” and “GOD SHED HIS GRACE ON THEE.”

Those inscriptions and others that longtime teacher Bradley Johnson displayed on his classroom wall amounted to a statement of religious views that the Poway Unified School District was entitled to disavow, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

Under U.S. Supreme Court rulings, the appellate panel said, government employees, including public schoolteachers, have no constitutional right to express views in the workplace that contradict their employer’s rules or policies.

“Johnson took advantage of his position to press his particular views upon the impressionable and captive minds before him,” said Judge Richard Tallman in the 3-0 ruling, which reversed a lower-court decision in the teacher’s favor.  (Emphasis mine.)

"Hey, you can't say that in here!"

I especially like Judge Tallman’s reference to “impressionable and captive minds.”  Apparently those young minds can withstand the constant propaganda emanating from legal tender, but put it on a classroom wall and their mushy psyches are completely overcome.  Under that kind of pernicious “God We Trust” influence, the next thing you know, those poor, weak-brained students are going to rush out and commit some heinous acts of morality and decency. You can see pictures of the hypnotic, over-powering banners here.

(By the way, if you’re getting old, as I am, and are trying to fix “God Shed His Grace On Thee” in your mind, it’s from “America The Beautiful,” a song that liberal media stalwart Lynn Sherr identified in her book about its creation as our “nation’s favorite song.”)

We need to stop worrying about al Qaeda and start getting seriously worried about our judiciary.  For three federal appellate court judges to say that the motto imprinted on every coin in America constitutes a private statement of religious views that can be banned from the classroom crosses a line from Progressive to deranged.

Liu out!

I haven’t been blogging about far Left judicial activist Goodwin Liu, but if you’ve been following the story on your own, you’ll be happy to know that the Senate Republicans successfully filibustered his nomination — a reminder, as if we need one, that the filibuster is an important tool for allowing the minority in Congress to put the brakes on the majority.  (And, if conservatives become a majority again, I hope that I have the good sense and lack of hypocrisy to remember that principle should it arise in a reversed context.)

Judge not lest ye be judged

People who know me in person also know that nothing is more likely to send my blood pressure spiking than talk about judges.  (To any of my readers who are in fact judges, I’m sure you’re the exception to anything nasty I might be about to say about judges.)  I dislike judges, something that is almost certainly a product of having practiced law in the San Francisco Bay Ara for the entire length of my career.

In the Bay Area, the vast majority of judges act as if they consider their judicial robes the equivalent of a priest’s vestments.  This means that, rather than being constrained by the law, they believe that they have some sort of direct connection, not to God (whose laws exert moral control over the priest), but to some higher liberal morality located somewhere around each judge’s own navel.  The practical result of this is that rulings almost invariably favor politically correct parties over legally correct parties.

This lack of judicial temperament is on its most blatant display in the trial courts.  It’s been about 15 years, but I still haven’t recovered from the trial court judge (now an appellate court judge) who said to me “I don’t care what the law is; I think there’s something here.” Although few judges were as open about their reluctance to apply the law, the deceit that emanates from the bench to justify manifestly wrong decisions indicates that there are a lot of judges out there who “don’t care what the law is.”

The appellate courts are not immune — which is unsurprising, I guess, given that they’re made up of former trial court judges.  Several years ago, I worked on a case that saw the justices lie about the underlying facts in order to achieve their preferred outcome.  This was a particularly vicious little thing to do, since the case (which was published) looks perfect on its face, with stated facts inexorably driving towards an inevitable legal conclusion — except that the stated facts were false, and the underlying record proved their falsity.

The other day, an opinion came down that saw the judges being a little less clever.  They simply lied about the law itself.  Worse, it was a simple enough lie to track down, because they quoted from a case to justify their holding — except that the case from which they quoted said the exact opposite of the principle they claimed to derive from that earlier ruling.  Since they’re appellate judges, which is an office reserved for quality lawyers, I’m going to acquit them of carelessness and stupidity, which leaves only malice.

All of the above griping is a lead-in to an article Thomas Sowell wrote saying that, if judges are going to act like politicians, its time to treat them that way, and vote them out of office:

Arrogant politicians who do this [pass laws that directly contravene the Constitution] are dismantling the Constitution piecemeal — which is to say, they are dismantling America.

The voters struck back, as they had to, if we are to keep the freedoms that define this country. The Constitution cannot protect us unless we protect the Constitution by getting rid of those who circumvent it or disregard it.

The same thing applies to judges. The runaway arrogance that politicians get when they have huge majorities in Congress is more or less common among federal judges with lifetime tenure or state judges who are seldom defeated in elections to confirm their appointments to the bench.

The problem, of course, is that judges function under the radar. Even in elections, voters usually know nothing about them. When it comes time to mark the ballot, the voters either abstain or they pick a name at random. As often as not, the judges (at least in California) run unopposed, which means that votes are irrelevant.

If judges would act like judges — if they would be impartial arbiters ensuring that the Constitution controls overall and that constitutional laws are enforced as written — I would have no problem with lifetime tenure which, in theory, keeps the judges out of the political fray and, therefore, makes them less likely to engage in the type of favoritism that would ensure them reelection.  However, decades of liberal ideology in the court means that judges are not impartial arbiters.  They are, instead, political players who need to be called to account.

Cross-posted at Right Wing News

Random wonderful stuff

Just random stuff that’s so good you shouldn’t miss it:

Shirley Sherrod’s been on a roller coaster.  Thanks to a video snippet that Andrew Breitbart posted, she got pilloried as the face of Leftist/NAACP racial intolerance.  When it turned out the snippet was out of context, she got sanctified as the face of true racial harmony.  Now, though, that we know who this formerly anonymous government worker is, we’ve learned that she is indeed just another Leftist race-baiter, that she’s been complicit in government fraud, and that she has a long history of much badness.  Turns out that Breitbart managed to target precisely the right person to show what the Left is like.

May I recommend to you — no, may I urge upon you — Wolf Howling’s fabulous post regarding the judicial activism on display in Perry v. Schwarzenegger?  As a conservative, whether one agrees with gay marriage or not, the true issue is whether judges should be allowed to impose their values, wrapped in an ostensible cloak of legal reasoning, on citizens. Or, as Wolf Howling more eloquently says, “gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.”  A nice companion piece is James Taranto on the same subject.

And a simple economics video for you (h/t Danny Lemieux):

Another one to add to your reading list is Michael Totten’s article about the way in which the media, which never steps outside of its small Leftist bubble in Israel, grossly misrepresents that country.

I’ve never liked David Letterman, whom I’ve always found self-centered and mean-spirited.  His periodic forays into actual wit could never compensate in my mind for the essential ugliness of his character.  According to Ed Driscoll, he’s only gotten worse, attacking conservatives with “sclerotic” glee.  (Isn’t “sclerotic” a great word?  I fell in love with Ed’s post practically on the basis of that word alone.)

Everything you needed to know about the Dems, run through the Kagan filter

Kim Priestap, who blogs at Up North Mommy, got an impassioned email from the Democratic Party, raving about Elena Kagan.  Does it rave about her brains?  No (although it mentions as an aside that she’s “among the best legal minds this country has to offer,” which is a depressing comment about legal minds in America).  Her legal expertise?  No.  Her judicial experience?  No (because there is none, no matter how one puffs up her limited management experience and some government work).  Her looks?  No, no and no.

Instead, the email is very clear about Kagan’s single most important virtue, along with a little subsidiary fillip to add to the Progressive excitement:  She’s a woman and, even better, she’s almost black because she once worked for a black man.

Read the following and tell me if the whole point of the Democratic euphoria isn’t that, after being the first female Harvard Law School dean, and the first female Solicitor General, she’s poised to become the third female Supreme Court justice sitting on the court, and one who is black by association, thereby raising both the female and black liberal quota on the Supreme Court:

Have you been watching the hearings? The nomination of a Supreme Court justice is a special time in Washington, DC. The air tastes different — it buzzes with an electricity even the humidity can’t conquer — and even more so this time.

Elena Kagan’s nomination is special. It took us almost 200 years as a country to get the first woman on the Supreme Court, but now we’re on a roll! If Elena Kagan is confirmed, for the first time, we’ll have three women serving together. We’re still a far cry from parity, but we cannot allow the perfect to become the enemy of the good. We’re making progress, and Elena Kagan is great progress.

Over the past three days of hearings, she has conducted herself with poise, grace, rigor, and humor. She has won praise from liberals and conservatives — prior to her nomination and since. It’s no easy feat to become the first female dean of Harvard Law School and the first female to serve as solicitor general. Her illustrious resume also includes periods as associate White House counsel and deputy policy director under President Bill Clinton, as a teacher at the University of Chicago Law School, and as a law clerk for Justice Thurgood Marshall.

Lend your name to help us show that the American people back Elena Kagan’s nomination.

Let there be no doubt: She earned this nomination. It’s not simply because she’s a woman, or because she’s among the best legal minds this country has to offer. I know firsthand the strength of Elena’s character and am certain she is the best choice.

The Supreme Court nomination process, like almost any political contest, is like a food fight where the nominee does his or her best to stay clean and dry while everyone else in the room slings Sloppy Joes. I’ve watched this before (recently) and there’s nothing the Republicans won’t do to take down a nominee chosen by a president they’ve vowed to obstruct at all costs.

Republicans are attacking her credibility, her credentials, and her character. They’ve become particularly focused on her work as a clerk for Justice Marshall, seemingly maligning his long and respected service to our country. As chief counsel to the NAACP, Justice Marshall argued the case of Brown v Board of Education. Later he would become the first African American to serve as solicitor general and the first African American to serve as a justice of the Supreme Court. We would be better off with more justices like Marshall, and Kagan’s work for him should be a feather in her cap, not a thorn in her side right now.

The other side is grabbing at straws, with nothing to support their groundless accusations, but it doesn’t stop the attacks. The Democratic Party is pushing back to ensure that this incredible woman gets a fair hearing, but we must also show that public support for Kagan is overwhelming.

Elizabeth Cady Stanton and Susan B. Anthony are rolling in their graves.  I think Martin Luther King is also starting to wiggle around in there.  This is not what they envisioned when they campaigned for equal rights for women, or demanded that people be measured, not by the color of their skin or bra size, but by the content of their character.  These trailblazers wanted women and blacks to enjoy full inalienable, constitutional, and legal rights in America.  For women and minorities to be valued just as numbers on some quota list is heartbreaking and as dehumanizing in its own way as the ancient status quo.

I have nothing more to say.

Elena Kagan

You’ve probably noticed that I’ve had nothing to say about Kagan.  There is nothing to say.  She’s a bright, often charming, lady from the far Left who, entirely separate from her anti-Constitutional ideology, is grossly unqualified in terms of professional experience and intellectual heft to be a Supreme Court justice.  She is, in other words, the perfect Obama nominee.

Kagan does get kudos for her moral support for Israel (she’s open about supporting that nation and I applaud her for that), but even as to that, I’d wait before giving her a free pass.  After all, a lot of Leftie Jews think that the best way to support Israel is to yield completely to all Palestinian demands.  (Think Tacitus.)