Antonin Scalia

A Reminder: The Supreme Court Determines The Future!

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WIth the Supreme Court term about to end on Thursday, and all of the tumult about the upcoming decision on the Affordable Care Act, and the decisions today on immigration, corporate spending in campaigns, and juvenile sentencing for life terms for murder fresh on one’s mind, it is again important to remember what most Americans don’t even know or realize: The Supreme Court determines the future, more than any part of American government!

A lifetime job, with total freedom to say and do what one wants, is a great power, and we are now suffering from the reality that Ronald Reagan may be dead for eight years, but two of his appointments to the Court (Antonin Scalia and Anthony Kennedy) are still dictating much of what happens in America; George H. W. Bush’s appointee, Clarence Thomas, is not going away anytime soon; and George W. Bush’s two appointments, Chief Justice John Roberts and Associate Justice Samuel Alito, will be around for at least two more decades on the Court, assuming good health!

And now with Scalia and Kennedy being 76, and Clinton appointees Ruth Bader Ginsberg being 79 and Stephen Breyer being 73, it is certain that one to four appointments are likely to be made by the winner of the 2012 election.

Can we afford President Romney shaping a Court that will be to the “right of Attila the Hun?”

It would destroy the chance for fairness, equity, humanity on the Court, and would continue the corporate conquest of American government going on with the Citizens United case, and the new Montana case just decided, that reaffirmed that earlier, disgraceful, decision!

It cannot be emphasized enough that NOTHING matters more than the Supreme Court and the federal circuit judges in this upcoming Presidential election! Economic policy and foreign policy are much less significant than constitutional law!

Obama and his supporters NEED to bring up this issue regularly, and never stop referring to it, with the hope that it will penetrate the brains of the American people!

Is It The Kennedy Court, Rather Than The Roberts Court?

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The more one analyzes the US Supreme Court in recent years, it is more clear than ever that we should call it the Anthony Kennedy Court, rather than the John Roberts Court!

Kennedy, appointed to the Supreme Court by Ronald Reagan in 1988 as a compromise choice who could pass Senate muster, after the well publicized rejection of Robert Bork in 1987, has now been on the Court for 24 years, and is seen more than ever as the “swing vote” on the Court, first sharing that with former Justice Sandra Day O’Connor, until her retirement in 2005, but now all by himself as the most significant vote on the Court.

Kennedy, basically a conservative but with an open mind, has leaned to the Right two thirds of the time, and to the Left one third of the time on the average.

It is seen by just about all Court watchers that Kennedy’s vote on the Obama Health Care legislation is crucial, as to whether it survives or goes down.

Kennedy disappointed many on the left in being in the majority on the Bush V. Gore case of 2000, the Citizens United case of 2010, and the Strip Search case of this past Monday. But at the same time, he upheld the rights of gays to privacy in the Lawrence V. Texas case of 2003, enraging fellow Justice Antonin Scalia.

His questioning about the Obama Health Care law last week showed the quandary he is in, and he is getting pressure from many sources to uphold the law, but the belief is that he will not give in to pressure, and might even be tempted to go with the other conservative Justices in overturning the law.

The theory is that IF Kennedy goes with upholding the law, that Chief Justice John Roberts will join him, making it a 6-3 vote, but that if he decides to negate the law, then the vote will be a partisan 5-4 vote against the legislation.

So to call the present Court the Kennedy Court seems very appropriate!

Conservatives Who Support The Obama Health Care Law: Charles Fried, Laurence Silberman, Jeffrey Sutton

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Three major conservative leaders have made clear by statements and actions that they believe the Obama Health Care law is constitutional under the commerce clause of the Constitution.

Charles Fried, who was Solicitor General under President Ronald Reagan in the 1980s, was highly critical of some of the questioning by conservative Justices Antonin Scalia and Anthony Kennedy of the Supreme Court this past week. Fried said health care is interstate commerce, and that Congress has the right to regulate interstate commerce. The arguments utilized in questioning are “phony rhetoric” in Fried’s mind.

Judge Laurence Silberman of the DC Court Of Appeals upheld the Obama Health Care law as constitutional in one of the cases brought by states before circuit courts on the way to the Supreme Court, decided on November 8, 2011. He has been a federal judge for 27 years, appointed by Ronald Reagan in 1985, and is a good friend, of all people, of Justice Clarence Thomas, who is seen as a guaranteed vote against the Obama Health Care law.

And Judge Jeffrey Sutton of the 6th Circuit Court Of Appeals upheld the health care law on June 29, 2011, and is seen as a leader of the conservative Federalist Society! He was appointed by George W. Bush, and is considered a disciple of Justice Antonin Scalia! He is well known as a states rights advocate!

So go figure!

This tells us ANYTHING can happen on this Court decision, and not to come to a conclusion this early that the Obama Health Care law is going to be overturned!

Chief Justice John Roberts: What He Wants As His Long Term Legacy

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There is much speculation about the US Supreme Court and the most important case in a decade–the Affordable Care Act, known by its critics as “ObamaCare”.

Many think Anthony Kennedy is the key vote, but actually, the author would say that Chief Justice John Roberts is the REAL key vote, and there is much speculation that he will join the liberals and Kennedy, the usual swing vote, and might even convince Antonin Scalia and Samuel Alito to join as well, on the power of his personality and the respect he engenders on the Court over the past seven years.

Chief Justice Roberts is going to have long career on the Court, and he wants his legacy to be positive, and IF the Court rules against “ObamaCare”, his reputation will be in tatters, and will be irretrievable.

Roberts is considered one of the brightest members of the Court, and although a conservative, he is not extreme as Clarence Thomas, for instance, is.

Roberts wishes to unite and move forward, and has been stung by the horrible reaction to the Citizens United case of 2010, and to the remnants of the Bush V. Gore case of 2000, the damage done to the reputation of the Court BEFORE he arrived as Chief Justice in 2005.

His questioning showed a mind conflicted, but to believe that he will negate the whole law is hard to imagine, as he set aside three days and six hours for this case, highly unusual, and that is, to many observers, a sign that he recognizes how crucial this issue is in itself, and the seriousness with which he takes it..

While no one can read the mind of anyone, expect Roberts to write the opinion and be in the majority, which is likely 6-3, but could be 7-2 or 8-1.

This case will shape the long term future of the Court, and if the law is overturned, the likely result will be, over time, a single payer system, which any conservative would not want.

And remember it was conservatives who led the charge in the time of Bill Clinton for what is now “RomneyCare” in Massachusetts, and “ObamaCare” in America!

Trying To Fathom The Supreme Court On Health Care: The Court Under The Microscope

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Yesterday’s oral arguments before the Supreme Court led many observers to think that the Court is about to declare the Obama Health Care law unconstitutional this coming June.

Not so fast, ladies and gentlemen! This is hysteria and panic before the fact, with plenty of opportunity after the Court decision, if it is, indeed, negative!

Emphasis was put on Justice Antonin Scalia’s sarcastic comments about mandating broccoli, a totally ridiculous statement! But one must remember that Scalia is a showboat, a maniacal egotist who loves to hear the sound of his own voice, and get everyone’s attention, and one must remember that the Court was issuing an audio of the oral arguments immediately after the event, a very rare circumstance, and that had to be on Scalia’s mind!

Scalia was thought to be a possible vote, but if it is not, so what, as Scalia is, arguably, a hypocrite who is constantly contradictory, utilizing a broad interpretation of the Constitution, when he wishes to, and other times, pontificating on “originalism”, the idea that we must literally follow the Founding Fathers as they saw things in 1787 at the Constitutional Convention.

More importantly, the view of Justice Anthony Kennedy and Chief Justice John Roberts will be the crucial votes, and although Kennedy and Roberts both expressed some reservations about the Obama Health Care bill and the mandate contained within it, there were also key comments by both that indicated a mind open to consideration of the constitutionality of the law.

Kennedy is usually the swing vote, and seemed conflicted, which can be seen as a good sign, and Roberts seemed very evenhanded, and is known to want to be in the majority, and probably write this most important decision of the past decade, and aware that the Supreme Court does not look very good in the eyes of many people based on recent cases, particularly the Citizens United Case of 2010, on top of the Bush V. Gore case of 2000.

The argument is that if Kennedy goes to the majority, then Roberts will join, and the vote would be 6-3.

And one must point out that the four defenders of the legislation were excellent in their arguments supporting the legislation, with Justice Stephen Breyer, a true intellectual, particularly outstanding in his arguments, but joined by Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan.

So, with one more day of oral arguments, it is not time to give up on support of the legislation, and also realize that one cannot always judge how members of the Court will vote, based on oral argument alone, as often, what is being done is to test both sides in the case, and sometimes, purposely mislead on intentions, in the process of asking the lawyers in the case to defend their side.

This decision is far from certain, but progressives should feel optimistic about it at this point, and simply wait patiently to see the result, knowing that the cause is just and compassionate, and that those of us who support it are on the right side of history with Franklin D. Roosevelt’s New Deal and Lyndon B. Johnson’s Great Society!

Two Year Anniversary Of Health Care Law, And Oral Arguments On Case Next Week In Supreme Court

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The Affordable Care Act, the Obama Health Care legislation, hits its two year anniversary this week, and next week, the US Supreme Court will consider the constitutionality of the legislation, seen as the landmark case of the past decade by many, and as the crucial issue that will have a dramatic effect either way on the upcoming Presidential Election of 2012.

The Obama Health Care law has allowed young people to remain on their parents’ health insurance to age 26; has prevented pre-existing conditions from being used to deny health care; and has cut down the “donut hole” for senior citizens in relation to their prescription costs.

Many other reforms must wait until 2014, assuming that the Supreme Court does not declare the whole act unconstitutional.

There is furious action to try to destroy the signature legislation that really defines the Obama Presidency, a law that took a full year to pass, and that was passed on party lines, which is actually not at all unusual in history.

Some federal judges have upheld the legislation, while others have challenged it, and it will be argued by both sides over three days for the unusually long total period of six hours, showing just how significant this case is!

As it seems now, the four “liberal” Justices–Bill Clinton appointees Ruth Bader Ginsburg and Stephen Breyer, and Barack Obama appointees Sonia Sotomayor and Elena Kagan—will support the legislation.

For it to survive in one piece, at least one of the five “conservative” Justices would have to join the four liberal appointees of Clinton and Obama.

Anthony Kennedy, usually the swing vote, and usually joining the liberals on about one third of the cases before the Court, is thought to be a good bet, but not a guarantee.

Chief Justice John Roberts, who is very aware of the significance of this case for the Court and for his reputation, is thought to join in the majority, but again no certainty.

Ironically, Associate Justice Antonin Scalia, who one would think would be opposed, has indicated in other cases as hints that he just might support the legislation.

Associate Justice Samuel Alito is thought less likely to support the legislation, and Associate Justice Clarence Thomas is thought to be the one certain, guaranteed vote against the health care legislation.

The argument for the legislation is the application of the commerce clause of the Constitution, which has been utilized over and over again by the US Supreme Court in the past, adding to the powers of the federal government. This was the same controversy with the Social Security Act, with a conservative oriented Supreme Court in the 1930s, and that legislation was upheld.

The argument against is based on opposition to the so called “mandate” that all citizens MUST obtain health insurance coverage by 2014, or face a fine.

What the critics fail to address is that when someone does not have health insurance and ends up needing medical care, he or she ends up in the emergency room, and all of us have to pay for the health care provided. Is it proper that some have no health care coverage and gain medical aid, and the rest of us have to pay for our health care, and also for those who are irresponsible enough to avoid paying for care that he or she knows he or she can gain for free?

This is the crux of the matter, and it is hoped and believed that a majority of the Supreme Court will end up backing the Health Care law, with a prediction by many of at least 5-4, but even possibly 6-3, or 7-2, or even 8-1.

A victory by more than 5-4 would be a real endorsement of the health care legislation, while a 5-4 defeat would be a major blow to 50 million citizens who benefit from the legislation.

In either case, this decision, when it is announced in June, will have a transformative effect on our nation, and on the Presidential Election of 2012. We will all wait with “baited breath” for the result!

75th Anniversary Of Supreme Court “Packing” Plan Of FDR: Its Significance Today

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Seventy five years ago on this day, President Franklin D. Roosevelt introduced his plan to reorganize the Supreme Court, becoming known as an attempt to “pack” the Court, which became a turning point in many ways, including the fact that it was repudiated by the Senate in July 1937; weakened the power and clout of FDR shortly after his landslide victory in 1936; and led rapidly to a transformation of the Court, and FDR replacing, over the next five years, all but two members of the Court he was challenging.

The Supreme Court had stood in the way of change and progress during the Great Depression, declaring many New Deal laws unconstitutional, and FDR brought the Justices under attack as a result. Bitterly criticized as acting dictatorial, FDR was put on the defensive, but the long range was the Court adapting to an expansive view of the Constitution within a short time, and leading to a Court which dealt with the expansion of federal power and greater support of civil liberties and civil rights.

Today, three quarters of a century later, the Republican dominated Supreme Court has opened up the gates of campaign spending abuse in election campaigns, by its Citizens United decision of 2010. Additionally, crucial cases, including the Obama Health Care Plan, are to be decided by June, which will determine the fate of much of what Barack Obama has done and wishes to do as part of his agenda as President. Obama already made clear his criticism of the direction of the Court two years ago, with the Justices sitting there at the State of the Union Address. And three of the nine Justices–Antonin Scalia, Clarence Thomas, and Samuel Alito–have boycotted the past two State of the Union Addresses, and represent the major challenge to the Obama Presidency, more than any other members of the Court.

No one is saying or predicting that Obama will attempt such a bold act as FDR did, and were he to do so, it would certainly cause the biggest controversy and split possible to imagine, greater than any issue so far in his administration.

But the Supreme Court IS an issue in the upcoming Presidential campaign, as the likelihood of replacements on the Court in the next term are very likely. This is particularly the case with Ruth Bader Ginsberg, who has had bouts with cancer, and would pass 80 years of age at the beginning of the next term. Her liberal vote would be lost if the Republicans win the White House and she leaves the Court. Additionally, based on aging, it is possible to imagine that Anthony Kennedy, Antonin Scalia, and Stephen Breyer could leave the Court before 2017.

So who is elected President, and who controls the majority of the US Senate, which would need to confirm a Court appointment, is very significant, although not much attention is being paid to this issue because of the troubles with the economy.

The Supreme Court: Most Important Issue Of Presidential Campaign Of 2012

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It is amazing how little this Presidential campaign of 2012 has been connected to foreign policy, and to constitutional law, as if ONLY the economy matters.

As much as the Great Recession and its supposed aftermath has created a major crisis for Americans, to overemphasize it is a dangerous action, as the LONG RANGE problem is much more our relations with the world AND the future of our judiciary.

Regarding the judiciary, the thought that a Republican President would select MORE conservatives to a Court already top heavy with conservatives is absolutely terrifying on issues such as the power and influence of corporations, the rights of women, the rights of gays, the role of religion in government, and the struggle to preserve civil rights and civil liberties.

For instance, if Michael Dukakis had been elected in 1988 instead of George H. W. Bush, we would not have had Clarence Thomas on the Supreme Court.

If John Kerry had been elected President in 2004, instead of George W. Bush, we would not have had John Roberts and Samuel Alito on the Supreme Court.

Going further back, if Walter Mondale had defeated Ronald Reagan in 1984, we would not have had Antonin Scalia and Anthony Kennedy on the Supreme Court, and Justice William Rehnquist would not have become Chief Justice.

So the election of the President has LONG TERM consequences in judicial and constitutional interpretation, just as much as foreign policy is not only short term, but long range affecting.

When one realizes that Ruth Bader Ginsberg is 78, and Justices Antonin Scalia and Anthony Kennedy are 75, it seems realistic to believe that all three COULD be out of office in the next term of office.

So the Court could become more conservative if a Republican is elected to the Presidency, and more moderate if Barack Obama is elected to a second term in the White House.

Therefore, every voter MUST realize that the Presidential election has consequences, not only in foreign policy long term, but also in the future of our legal system and our constitutional rights.

Herman Cain: Reality Check As He Faces Attacks On The Right, The Center, And The Left

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Herman Cain says he is not the “Flavor of the Week” or “Flavor of the Month”, but he most assuredly is such!

After being on Meet the Press on Sunday and speaking in Tennessee, where he is on a book tour, Cain has major problems and is being attack on the Right, the Center, and the Left!

Cain has not raised much money, has no real campaign staff, and spends time promoting his newly published book in a state that does not vote until Super Tuesday on March 6, long after the early caucuses and primaries. This, in itself, is the weirdest way to campaign for President!

But getting beyond that, the Right, the Center and the Left are displaying anger with and at him. Why, specifically?

On the Right, Herman Cain seems unwilling to support a constitutional amendment against gay marriage, which it is clear would never pass in any case. But by leaving it to states, as he advocates, he has made enemies, particularly among social conservatives who like Michele Bachmann or Rick Santorum.

Secondly, Cain has demonstrated that he is a novice on foreign policy, claiming to admire Henry Kissinger and John Bolton, which is, as critics say, like admiring both Antonin Scalia and Ruth Bader Ginsburg, a totally preposterous concept. And Cain actually said he saw Clarence Thomas as a model, enough to undermine his legitimacy to be President! It shows he is not ready for “prime time”, and has no clue on international affairs, another thing which upsets conservatives as well as progressives. His ideas on Afghanistan show no depth or knowledge of that war, which has been going on for a decade!

Third, Cain talks about sales taxes on “new goods’, and none on “used goods”! What in the world does that mean, and is it not true that if fewer “new goods” are purchased which would be likely if they are subjected to a sales tax, then the economy will suffer and never recover? And since food and clothing would be taxed, is Cain proposing used clothing only, and how can food be “used”? His 9-9-9 economic plan would hurt the poor and the middle class, and benefit the wealthy, and is an outrageous attack that could be called the true “class warfare”!

And then the Left is furious at Cain’s suggestion that abortion not be allowed for rape or incest, as that is “rare” according to him, and “life of the mother” would be left up to the family. What does all that gobbledygook mean anyway?

And then to suggest an electrified fence along the US-Mexican border is impractical and also horrifying, the concept of inflicting harm on refugees and possibly killing them, and using troops to shoot and kill if necessary to stop refugees! That would be a massive violation of human rights, and would America want to have that image in the world, that it is ready to shoot and kill, or execute by electric shock any refugee, who while doing something technically illegal, is just trying to make a better life in America and escape from poverty?

Herman Cain is a preposterous candidate, and the attacks by his opponents in the Republican Presidential race are likely to escalate in Tuesday’s Presidential debate scheduled in Nevada, and sponsored by CNN. This man, with no political experience at all, is indeed not only the “Flavor of the Week or Month”, but the biggest joke of the loony GOP campaign to find a legitimate candidate for President!

A Generation Of Justice Clarence Thomas: Its Negative Impact!

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Supreme Court Associate Justice Clarence Thomas has now been on the Court for a generation, and his impact is clear.

This is a man who was enmeshed in controversy when he was appointed by President George H. W. Bush to replace Associate Justice Thurgood Marshall as the second African American in the history of the Supreme Court. He was clearly the “anti Marshall”, and has remained in controversy ever since 1991.

Thomas was accused by African American law professor Anita Hill of sexual harassment, and accused liberals of a “lynching”, and only was approved by a vote of 52-48 in the Senate, the closest of the 20th century. He has, in a memoir in 2007 and before and since, continued to have bitterness and resentment toward liberals and his other critics, and said when he was confirmed that he would confound the “damn liberals” by staying on the Court for 43 years, the age he was when appointed, which would surpass Justice William O. Douglas’s 36 years on the Court, the longest in Supreme Court history. His wife strangely contacted Anita Hill last year to ask for an “apology”, which was not forthcoming, but continues to simmer in his wife’s mind after a generation.

Thomas’s wife has been involved in ethical problems as the head of a conservative organization working against the Obama Health Care law, and in other ways, working with the Tea Party Movement, while her husband is involved in decisions where his wife’s activities create ethical problems for him, although he is unwilling to react to any criticism by recusing himself from cases, as creating a conflict of interest. He does not care what his critics say!

On the Court, he is seen in many ways as the MOST conservative member, even more than Antonin Scalia in some ways. He is well liked by his colleagues, but almost never asks any questions in oral arguments before the Court. He gives lectures around the country, but avoids the news media. He comes across as bitter and odd in many ways, but also arrogant and hard to fathom.

Thomas has shown willingness to strike down case law going back decades, and sometimes even a century. He is the only one to argue for consistent return to the “original” meaning of the Constitution when it was adopted in 1789, even more than Antonin Scalia. He sees the Court as having gone the wrong way in many areas of the law, and wanting reversal of past rulings.

Thomas alone believes that states should be able to establish an official religion; believes teenagers have no free speech rights at all; believes business should not be regulated and their commercial speech and campaign activities should not be regulated; wants to strike down a key provision of the Voting Rights Act; and backs the President’s ability to hold an American citizen in prison indefinitely without charges or review by the courts.

Thomas refuses to see prisoner rights as legitimate and is against affirmative action to the extreme, even though he benefited from it himself! He spends his time only with people who agree with his hard line views, which many think is a shame, as it indicates he has a closed mind.

So Clarence Thomas continues to have a long range, in many ways deleterious effect on the Supreme Court, and probably will for close to another generation, as he predicted!