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.
[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.
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?
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.
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.
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)
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.
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.
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.)
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).
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.
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.
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!
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.
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 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.
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.)
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.