Hattip to Allahpundit at Hot Air. Well, that didn’t take long. In response to Obama’s attempt yesterday to bully the Supreme Court in the ObamaCare case, here is what happened in a Fifth Circuit hearing today:
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.” Continue reading
Conrad Black has written one of the most rambling and fairly incoherent things I’ve ever seen in quite some time. I’m not quite sure what his overall point is, but he ends up attacking Antonin Scalia of all people.
But some are, including Justice Antonin Scalia, who, as Maureen Dowd wrote in the New York Times on October 2, has attacked the complainant in a civil suit to stop the banning of co-ed dormitories at the Catholic University of America in Washington, D.C. As Ms. Dowd pointed out, Justice Scalia has not hesitated prior to this to volunteer publicly either his solidarity with his Church militant, or his dissent from it. But in the case of the Roman Catholic Church’s long-held and oft-expressed (by four recent popes) hostility to the death penalty, Justice Scalia recently told Duquesne University in Pittsburgh that if he thought “that Catholic doctrine held the death penalty to be immoral, I would resign.” Since he could not possibly be unaware of the views of the Holy See over the past 50 years (John Paul I was the only pope in that time who did not reign long enough to opine on the subject), nor of the authority of the pope to speak on such matters for the whole Church, it is not clear why he is not delivering his letter of resignation to the president instead of sticking his nose into the dormitory rules in one of the national capital’s universities.
To move the inquiry that Ms. Dowd usefully started to entirely secular matters, there could be searching questions about why the Supreme Court has sat like a great suet pudding for decades while the Bill of Rights has been raped by the prosecution service with the connivance of the legislators, a tri-branch travesty against the civil rights of the whole population, but I will spare readers another dilation on that subject. However, Justice Scalia’s preoccupation with the dormitories of the Catholic University of America (a matter that is now, to the Justice’s chagrin, sub judice), is, in the circumstances and to say the least, bizarre.
Leaving that aside, the report card on the co-equal branches is not uplifting: The legislators and the executive wimped out on abortion and immigration. The beehive of conscientious jurists on the Supreme Court applied a completely amoral test to get to a defensible conclusion on abortion when it was dumped by default on them to determine. And its most vocal current Roman Catholic member, swaddling himself in his faith, upholds the death penalty in contradiction to the popes, holds in pectore his views on abortion (which is not now before the high court, though not for absence of petitions), and thunders fire and brimstone about coeducational university dormitories, which is not, I think, a subject that the See of Peter has addressed.
This is just bizarre. From relying on Maureen Dowd as a source of criticism of Scalia’s Catholicism, to his complete non sequiter about Scalia’s involvement in the CUA suit, to Black completely misconstruing Church teaching on the death penalty; this turned into an unholy mess of an article that already has no clear thesis.
I was all set to write a response, but Shannen Coffin has already done so masterfully. I’d be violating fair use to copy and paste the whole thing, but you must read the whole thing. But here are the key passages: Continue reading