Trump Picks Gorsuch

Wednesday, February 1, AD 2017

 

Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but
a carefully drafted text judges are charged with applying according to its original public meaning.

Judge Neil Gorsuch, concurring opinion, STEPHAN CORDOVA, Plaintiff – Appellant v. CITY OF ALBUQUERQUE, et al, Defendants-Appellees

President Trump hit a homerun with his choice of Neil Gorsuch, currently an appellate judge on the US Tenth Circuit.  Universally recognized as brilliant, he writes in a clear and concise manner that makes his decisions understandable by laymen who have not wasted three years of their life in law school.  Currently 49 years old, when he was appointed by President Bush to the 10th Circuit he was approved by the Senate unanimously.

 He is an originalist who believes that the text of the Constitution must be interpreted as the words were commonly understood at the time the portions of the Constitution were adopted.  He is noted as a friend of religious liberty and, in his extra-judicial writings, as a defender of innocent human life.  The quote above and the quote below indicate that he understands the role that our courts should play in our Republic:

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” he wrote. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

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8 Responses to Trump Picks Gorsuch

  • Words must have some commonly held meaning, or else it’s tyranny. In too many courtrooms, with too many judges, it’s tyranny. Judge Gorsuch is exactly what this country needs.

  • The Democrats are preparing to reap what they sowed in 2013. (filibuster) Good.

    This is phenomenal.
    The start to this year is in high gear and full throttle. The grassroots push to defend Planned Parenthood and hold President Trump to his word is coming fast.
    Last night, over 2,800 Americans sat in on a webcast featuring the Country’s top Pro-Life activist and leaders. I listened with great optimism as the possibilities of knocking out over 43% of Worse than Murder Inc. income is becoming more of a reality, however we need souls on the front line…..So I beg you, please consider standing on the corner with us a week from Saturday. #protestpp.com

    Medicad funding for abortion provided thru Obamacare act, allocates over $400 million per year to PP. If we help put the pressure on by public square testimony demanding that PP be defunded, we could knock their annual revenue down substantially.
    Currently 1.3 billion in revenue.
    Fee’s for services = 30%
    Donations = 27%
    Taxpayers = 43%

    The money that formerly would of been used to fund PP would be re-distributed to community health center’s that are not in the business of killing children.

    Worse than Murder Inc. can have it’s head crushed into the ground by the heel of those who make up the body of Christ.

    Will you help?

  • https://prolifeaction.org/2017/defundpprally/

    Your considerations are deeply appreciated.

    Thanks TAC for allowing my appeal.

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  • Philip – I assume that’s “defund” PP, not “defend”.

  • Auto-correct go to heck!

    Ahhhrghhh!

    Yes Pinky.
    Your assumption is correct.
    Defund.

  • If Gorsuch is confirmed, I will actually be able to say I am older than a Supreme Court Justice.

    He is also a great pick.

  • The filibuster rules are godawful and need to disappear completely in all circumstance. On indicator of the essential uselessness of Addision Mitchell McConnell is that his devotion to them was ‘absolute’.

Scalia’s Greatest Hits

Sunday, February 14, AD 2016

 

 

Most judicial writing is so bad, riddled with jargon and bloviation, that only people paid to do so would ever bother to read it.  The late Justice Antonin Scalia was the exception to this rule.  His writing was vibrant, free from both cant and jargon, and often extremely amusing.  Bruce T. Murray at Sage Law.US has compiled some of Justice Scalia’s greatest hits:

“Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures aimed at the suppression of dangerous ideas.”
National Endowment for the Arts v. Finley, 525 U.S. 569 (1998) (Scalia, J., concurring)

“All the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears.”
Citizens United v. FEC, 558 U.S. 310, 391-392 (2010)

“If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a ‘narrowly tailored’ means of preventing the obstruction of entrance to medical facilities (the governmental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the Tentmaker.
Hill v. Colo., 530 U.S. 703, 749 (2000)

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10 Responses to Scalia’s Greatest Hits

  • What a GREAT loss to Americans.
    At Mass a candle and portion of my communion for his soul.

    God will be victorious. America? Who knows the future of America? God will win. Stay close to God.

  • Several years ago, many of Justice Scalia’s dissenting opinions were published
    in a collection titled, appropriately enough, Scalia Dissents. While such a
    collection might be deadly dull in other hands, Scalia’s writings are incisive,
    riveting and quite witty. I just checked Amazon, and copies are available.
    Just sayin’.

  • I see the lilly white liberal progressives are calling for the death of Clarence Thomas, the only black on the bench? Why isn’t that racist? And why is condemnation of Barack Hussein Obama deemed racist?

  • In the video, it is amazing how the interviewer keeps trying to change the philosophical disagreement between Ginsberg and Scalia into a personal disagreement. Yeesh.

  • That was a funny bit since Ginsberg and Scalia were close friends.

  • Truly what a Supreme Court should be,he never succumbed to the hubris that seduces smaller minds

  • A weird thought. As the years go by, I become less and less impressed by people who can turn a phrase. It may be the effect of the internet. There are so many people who can be witty without having substance in their thoughts. I should be used to it by now, but it still surprises me. I love the clarity of Justice Scalia’s opinions. That’s where their beauty lies. It’s going to be the quality of his reasoning that, God willing, will make even his dissents more influential than others’ majority opinions in the next hundred years.

  • Gosh Pinky I think I most often agree with you, but I have to disagree with you about people who can “turn a phrase”… I think of G K Chesterton and others. A pithy phrase does often show depth of thought though is sometimes missed perhaps Because it is so quick and apparently (only apparently) simple.

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  • What a horrible interview by CBS. It was so negative and dark. Rather than getting to know Justice Scalia and his thoughts, everything was framed as “Justice Scalia, you’re a jerk. Explain yourself.”

Justice Antonin Scalia: Requiescat in Pace

Saturday, February 13, AD 2016

23 Responses to Justice Antonin Scalia: Requiescat in Pace

  • I hope Justice Scalia goes straight to heaven. But I fear that that godless man of sin and depravity occupying the White House will nominate a baby murdering, sodomy sanctifying replacement.

  • Which is why the Republicans in the Senate must refuse to act on anyone he nominates to the Court.

  • “Which is why the Republicans in the Senate must refuse to act on anyone he nominates to the Court.”

    With Mitch McConnell in charge, I wouldn’t hold out much hope for that.

  • “Senate Majority Leader Mitch McConnell, R-Ky., indicated the Senate will not move on an Obama nomination.

    “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” he said in a statement.”

    http://www.usatoday.com/story/news/politics/2016/02/13/senate-unlikely-confirm-obama-supreme-court-nominee/80351274/#

  • Well, that’s good news. Let’s hope he sticks to it. I. the event the next President is a democrat and republicans keep,control of the Senate, they need to do some Borking of their own.

  • The Supreme Court has now become a front and center issue for this campaign. The Republic debate tonight should be interesting. I bet Scalia’s name will be mentioned over and over again.

  • I was nice enough to follow one lefty on twitter and I had to block him after he openly hoped Thomas was next. Pure evil.

  • “I was nice enough to follow one lefty on twitter and I had to block him after he openly hoped Thomas was next. Pure evil.”

    But sadly, it is not surprising.

  • God has abandoned us. Like Israel in the Old Testament, God was our champion but we rejected him and He has stepped back, as if to say “you think you got this? Well, OK, but I warn you, Man without God is a stupid, petty, and viscious creature.”

    Scalia has been a champion of the Republic. He and Thomas were the only sure non-Statists on the bench and now that mean-spirited, petty, stupid, short-sighted bastard pretender in the Oval Office gets to turn the Supreme Court into a purely rubber-stamp arm of the Emperor… Just in time for the immigration DAPA case to cement a president’s authority to ignore Congress and wright law.

    I don’t curse often but damn! This is a VERY bad day for the Republic and the convenience of it all is suspicious. If I wasn’t a religious man, I’d be looking at conspiracy.

  • Take my advice — from experience — and avoid Mark Shea like the plague right now. Unless you REALLY want to ruin your Lent by experiencing extreme hatred for another human being.

  • Catholics should organize and demand an autopsy. I don’t trust this administration one bit or the Democratic Party that has sided with every anti God issue their is. The shift in the Supreme Court to a majority anti-God and anti Constitution would be the end of the United States as the founders created.

  • “There” not “their.”

  • During a vacancy, what happens if the Supreme Court is tied 4-4?
    In Scotland, the decision goes against the judge in the chair. In France, the decision below is affirmed.

  • Saw an article arguing that in quite a number of cases, the SC not taking up stuff for the next year actually benefits the President. I imagine that, at best, the President could hope to get a centrist and/or someone without a record or stated views that would cause controversy through the Senate. And if the Dems win both the Presidency and the Senate, the Court will definitely end up big time liberal.

    Doesn’t it then potentially benifit Republicans and conservatism in general more to have another centrist on the Court?

  • Donald R McClarey replied to my question, “The French rule.”

    Thank you for that.

  • There are no such things as “centrists”, in the Supreme Court or anywhere else.

  • Call it….more committed to “excentricities of each case” to quote West Wing. Maybe not fully committed to either living document or orginalist positions, potentially taking positions that lean towards either side depending on moment. Or even just having some views on one side and some from the other.

  • Thinking of the most important of the cases coming up, the immigration case RE: DAPA, it isn’t really about immigration at all, it is really about executive power: “is the Executive Branch an equal power to the other two, the first among equals, or are the other two subordinate to it?”

    Without Scalia, the Court will aim for “first among equals,” which, in essence and due to a non-functioning, partisan legislature, is no longer a Republic.

    Without Scalia, Thomas stands alone, Kennedy, ever anxious to be the lap-boy for the winning side, will write a decision that cements Presidential power over law.

  • A sad day indeed. The man was a lion, and forged anew and vitalized the old principle that the Court was designed to be the least dangerous branch because it merely was to decide cases according to the original public meaning of legal texts, not import subjective social views into the Constitution.

    Better yet, Scalia was a good Catholic, and could be regularly found at Old St. Mary’s at 5th and H in D.C., worshiping at the traditional Latin Mass he loved. Among his large group of children is an extremely bright and orthodox priest in the Arlington diocese, whom I once witnessed preach a beautiful and theologically penetrating homily on Our Lady… without notes and seemingly off the cuff.

    We can’t it say it often enough to the Left, which will prattle about the dire urgency of having a ninth justice appointed quickly– the role of the Senate is “advice and consent” and that we do not consent to whichever activist lawyer Obama intends to nominate.

  • How appropriate that a just man bear the title “Justice”. May he rest in peace, and may his successor be as faithful.
    Apocalypse 2:17 comes to mind: “To him that overcometh, I will give the hidden manna, and will give him a white counter, and in the counter, a new name written, which no man knoweth, but he that receiveth it.”

  • It was announced that the President will not attend Scalia’s funeral. Asked what he had to do that was so pressing, Wormtongue declined to say.

    Perhaps the Emperor thinks sitting in a Cathedral, under the unblinking eyes of the mural of Christ in Majesty, at the National Shrine, would be an unpleasant experience.

  • Maybe it’s the Holy Water. Asperges Apprehension?

Judicial Retention Elections for Supreme Court Justices

Sunday, June 28, AD 2015

tyranny3

 

A good idea from Senator Ted Cruz (R.Tx.):

Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

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16 Responses to Judicial Retention Elections for Supreme Court Justices

  • I ought to be on my way to Mass now but the only car we have won’t start. Fortunately there is an Enterprise location open nearby on Sunday morning. So, those who bash free market economies can stick it in their ears.

    Lifetime appointments to the Supreme Court have become a fatal flaw of the United States Government. The Founding Fathers desired an independent judiciary, but we don’t have one now and we have not had one for decades, if ever. There ought to be the means available to the American public to remove Supreme Court judges just as there is the means to remove the President and the members of Congress.

    Abortion, busing and homosexual marriage are not enshrined in the Constitution and just because some judges decided they are does not make it so.

  • No use to whine. The degradation of the US began with the women’s vote. Without it we would not have no fault divorce, abortion, huge welfare expenses, homosexual marriage, destruction of the family, two terms of Clinton and two terms of Obama. The women’s vote has negated the male in the body politic and this emasculation has reverberated catastrophically all through our society and will not end. I say this as a man who loves a woman and has been faithfully married for forty years. But think what happens when you pervert the natural order of things. Dads are not Dads anymore – just mules. Little wonder that people speculate about a ‘fear’ of commitment. It is not just our Chuirch that has been feminized.

  • Shawn Marshall- On what principle would you separate political rights such as voting between the genders? What rights are gender specific and what rights aren’t?

  • In theory I suppose judicial retention is a good idea. In practice, not so sure. What makes you think a majority of our fellow citizens would vote to throw a Kennedy or Ginsburg out (the same who kept Obama in)? Maybe the fear of rejection alone would keep these delicate flowers in line?

  • Fear of rejection would do a lot. I think that Kennedy would quickly find out what turncoats usually find out: they have no real friends. Without the support of a party, I think a retention campaign on a nation-wide scale would be impossible for any justice. The argument against this proposal is that it interjects politics into the Supreme Court. Well, if Justices are going to base their rulings on their policy preferences rather than the law, then they need to go to the voters just like everyone else who wishes to see what he favors enacted into law.

  • On 6 September 1789, Thomas Jefferson wrote to James Madison, “The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

  • Without it we would not have no fault divorce, abortion, huge welfare expenses, homosexual marriage, destruction of the family, two terms of Clinton and two terms of Obama.
    ==
    Uh, Shawn, women’s suffrage was instituted generally in 1920 and in select locales as early as 1869. Attributing the gutting of statutory requirements after 1966 to women’s suffrage incorporates an inventive sense of cause and effect, as does the notion that misfeasance in the administration of divorce law by (largely male) judges is attributable to the (female) voting public. All but four attempts to liberalize abortion law in the United States after 1966 failed. The regime in abortion law was instituted by judges – all of them male. The ‘huge welfare expenses’ are primarily to provide economic support to the elderly and disabled, who count among them many men and have as many sons as daughters. Programs targeted at late adolescents with bastard children have seen a rapid decline in their census in recent decades, something not true of Social Security.
    ==
    There is certainly a rancid crew of (female) academics and journalists and lawyers who are fanatic on these questions. That has nothing to do with my aunt casting a ballot for Mayor of Peekskill.

  • While we’re at it, Shawn, I think the Mississippi black codes were a pretty degrading piece of legislation. I do not recall women had the vote in Biloxi in 1866.

  • I like Ted Cruz’s solution.

  • I like Ted Cruz’s solution too.

  • I also like the idea. One other option would be to subject SCOTUS justices to reconfirmation every few years.

  • All who defend the “Slouching to Gomorrah” of our nation are free to propose their own analysis. Regretfully, the emotional responses are trite and ill considered. The destruction of our moral bases and the family will continue apace. God made men and women different and He made family. The emasculation of men is not God’s plan.

  • Also regard the solid perversity of all three female members of the Supreme Court – there is no destructive social policy they would not enforce through judiciary activism. And do not forget the tragic disappointment that ‘conservative’ Sandra Day O’Connor was.

  • Shawn- Fine, let’s agree that women’s suffrage has been an unmitigated, absolute disaster. By what principle would you propose isolating gender specific political rights?

  • Folks, no more on women’s suffrage. It is not the cause of our present problems and it has nothing to do with this post. Stay on topic!

  • Shawn Marshall wrote, “God made men and women different”

    But also the same, or we would be speaking of two species. St Augustine, as always, is very good on this: “Some people have suggested that it was now (Gen 1:27) that the human mind [interiorem] was made, while the human body came later, when scripture says, ‘And God fashioned man from the slime of the earth’ (Gen 2:7); so that where it says ‘he made’ (1:26), it refers to the spirit, while ‘he fashioned’ (2:7) refers to the body. But they fail to take into account that male and female could only be made with respect to the body.”
    He explains this further, when he says, “still the woman too, who is female in the body, she too is being renewed in the spirit of her mind, where there is neither male nor female, to the recognition of God according to the image of him who created her. (Rom 12:2, Eph 4:23, Col 3:10, Gal 3:28)”
    Both as a Christian and a Platonist, St Augustine would have rejected the notion of a “female mind” as not so much false as meaningless.

Endless Debates

Tuesday, January 20, AD 2015

 

 

The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.

Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them.  This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue.  The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding.  In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision.  Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:

In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)

You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.

In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion.

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25 Responses to Endless Debates

  • As they say; it was never supposed to be this way. The SCOTUS robes get their paycheck from the USG, just like all the other employees do. The court has been built up by media and university to be something it is not; it is totally in the USG, which makes it worthless in confronting the USG.
    You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865. The States were the only real check on the USG, but AL changed all that. AL brought in the era of a super strong central government that interferes in our lives in almost every way.
    So stop looking at the SCOTUS for anything that resembles freedom. Not going to happen. Our new god is the USG, which is what communism is all about, replacing God. To Catholics that are faithful, it is not a new God, but a little Satan.

  • Terms limits and referendums.

  • Even if SCOTUS decides against a constitutional right to SSM, courts across the country will be faced with an intractable problem, similar to that raised by polygamous marriages in Europe.

    When citizens of one country, say Algeria, enter into a marriage there that is actually or potentially polygamous and then come to settle in, say, France, where marriage is strictly monogamous, the courts have to ask themselves whether the relationship between a man and the lady or ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Code Civil, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them.

    The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country where polygamy is legal.

    No jurist has suggested there is an easy answer to this and the politicians have avoided the issue like the plague..

    The analogy with same-sex marriages is obvious enough.

  • “You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865.”

    What a bizarre statement. The powers of the states were unaffected by the Civil War. It was the slaveholding South and their Democrat allies in the North that championed an imperial Supreme Court based upon the Dred Scott decision. Their constant refrain was that the Supreme Court had spoken and that the question of whether slaveholders could take slaves into any territory had been resolved in the affirmative.

    Lincoln’s response to this in the First Inaugural was the correct one:

    I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

  • Donald R McClarey wrote, “The powers of the states were unaffected by the Civil War.”
    Only if one rather disingenuously separates the war itself from the war-aims of the victors and from its aftermath, in which those aims were implemented.
    Here was a war fought in defence of State Rights and opposing the right of the Federal government to interfere with a state’s domestic arrangements. Those that defended state rights were defeated and the victors placed them under military occupation, installed puppet governments of freedmen, scalawags and carpet-baggers and proceeded to ratify three constitutional amendments, all restricting the powers of the states.
    If sovereignty is “the right to make and unmake any law whatsoever” (Bodin), the states, for good or ill, were stripped of it as a result of the Civil War.

  • The Supreme Court has not been noticeable for its adherence to the doctrine of Stare Decisis.
    In Jones v Opelika [319 US 584 (1942)] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943)] by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

    One might have thought that, the highest court having once decided what the law is, it should be for the legislator to say what it ought to be.

  • MPS I will assume that some neo-Confederate is holding you hostage and forcing you to speak such rubbish.

    The War was not fought in defense of States Rights but rather in defense of slavery. The founders of the Confederacy were quite forthright about that at the beginning of the War.

    As far as the Federal government interfering with “domestic arrangements”, what a coy way of speaking of human slavery, Lincoln was quite clear prior to the War that he had no power to interfere with slavery within a state.

    Those that defended slavery were defeated, not those that championed states’ rights.

    The post Civil War amendments would have been approved even if every former Confederate state had voted against them. The same group of people who led their states out of the Union quickly regained power as Reconstruction ended, largely due to the terrorism imposed against freed blacks by the Ku Klux Klan and other organizations that formed the terrorist wing of the Democrat Party in the South.

    The States never had the right to make or unmake any federal law either prior to, during or after the Civil War.

  • Donald R McClarey wrote, “The States never had the right to make or unmake any federal law either prior to, during or after the Civil War.”
    I am no expert, but did not South Carolina nullify a Tariff Act?

  • I am no expert, but did not South Carolina nullify a Tariff Act?

    They issued such legislation around about 1832. Cannot recall if the customs inspectors in Charleston paid the South Carolina legislature any heed or not. IIRC, the legislature later retreated. The power of Congress delineated in Article I to levy “duties”, “imposts”, and “excises” could not be more explicit.

  • You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865.

    As late as 1929, public expenditure amounted to 8% of gross domestic product; 65% of all public expenditure was executed by state and local governments, who received little in the way of subsidies from Washington. About 35% of federal expenditure was devoted to the military, not a task you can readily farm out to the periphery.

    Manipulation of the states through federal subventions started small with the financing of the U.S. Route system in 1916; it underwent rapid expansion during the Roosevelt Administration, but the real bender began in 1965 with various and sundry Great Society programs. Abuse of state and local government through federal court decisions was a problem of quite modest dimensions prior to 1954.

  • “The SCOTUS robes get their paycheck from the USG, just like all the other employees do.”
    .
    The Supreme Court Justices are the personification of God’s perfect Justice. Justice cannot be bought and paid for. The Supreme Court Justices are given compensation. The compensation is derived from tax money and ought not be taxed as stipends and donations and free will offerings are not taxed. Justice Clarence Thomas was almost hauled before the IRS for some money his wife was given for a speaking engagement.
    .
    The Supreme Court stands as testimony against atheism. If anyone wants JUSTICE, “We, the people” need God, not the god of atheism nor the god of political correctness but the True God of Truth. Men are not wives, extortion is not contribution, and Truth, Justice and Innocence are born with every human being, from the very first moment of existence. God gives the newly begotten His Name: I AM…an adopted child of God, created and procreated.

  • Snowflake babies will end abortion.The existence of the human being, frozen and gestated into adult individual persons, can no longer be denied. Gracie Crane and 44,000 snowflake babies in U.K. alone. Test tube babies who survived every conceivable evil. Hell hath no fury like that of a woman scorned.
    .
    Roe v. Wade found that the unborn had no sovereign personhood, disenfranchising the unborn of their right to life. Gracie Crane says that she has sovereign personhood from the very first moment of her existence in the IVF, in the liquid nitrogen, in her adopted mother’s womb and in her adopted family. Gracie Crane has 44,000 witnesses to her testimony in the U.K. God endows sovereign personhood. The rights the state or the U.N. gives, the state and the U.N. can take away. T.J.
    .
    60,000,000 persons have been destroyed in the womb in America.

  • “I am no expert, but did not South Carolina nullify a Tariff Act?”

    No, although it threatened to do so. Jackson was at his finest during the Nullification Crisis, the first attempt by South Carolina to start a Civil War. Jackson made his policy clear on April 13, 1830 when he gave a toast at a Jefferson dinner of the Democrat party: “Our Federal Union, it must be preserved”. John C. Calhoun, Jackson’s Vice President and the very embodiment of South Carolina, responded: “The Union, next to our liberty most dear.”.

    The crisis came to a head in 1832 and it looked as if war was in the offing. On December 10, 1832 Jackson issued his Nullification Proclamation which attacked both nullification and secession. Jackson threatened to hang every leader of the nullification forces if a drop of blood were shed in opposition to the laws of the United States. When Senator Hayne of South Carolina told Senator Benton of Missouri that he doubted if Jackson would really hang anyone, Benton, a good friend of Jackson and a man who had shot him in a brawl, one of many such affrays Jackson was involved in during his life, in 1813 before they became friends, told him that “When Jackson begins to talk about hanging, they can begin to look out for ropes”. South Carolina ultimately backed down, helped by Congress passing legislation lowering tariff rates along with a Force Bill authorizing Jackson to use force to collect the tariff, and our Civil War was reserved for a later generation.

  • Small but significant correction: that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.
    .
    Should be “that the Court is likely to strike down all laws upholding traditional marriage and impose its will by judicial fiat.” The vocabulary is important because it leads the conversation. Traditional marriage opponents want to frame traditionalists as “anti”. (“There they go again.”) In the modern public mind, being “anti” requires much higher justification.
    .
    Voters voted to define marriage between 1 man and 1 woman. It is not a stand against a particular association. It is an affirmation of a definition of marriage. Anything else, be it heterosexual, homosexual or otherwise, is incompatible.
    .
    In preparation for our new judicially formed society (Leave it to the robes to create a more perfect union.), I am reading Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything. It’s a fascinating book so far. My Kindle highlighter is used on every page I think.

  • I too have read–and highly recommend– “Making Gay Okay.” Now I am able to understand the poisonous “Enlightenment” roots of the ideology that has brought us to where we are today regarding marriage. Unfortunately, this same time period produced the inspiration for many of the ideals of the Founding Fathers.

  • Don, I agree with your assessement of the Framers’ miscalculation of the Judicial Branch. I have long suspected that the Framers simply did not fully anticipate the scope of judicial review and its implications. Don’t get me wrong — anticipated or not, I do think Marbury v Madison was correctly decided. Judicial review necessarily follows from the architecture of our Constitution, and is conceptually desirable. But had its scope been properly anticipated, I believe the Framers would have supplied both the Executive and Legislative branches with superior checks against abuse. As it stands, the Court can exceed its Constitutional authority with impunity, and sometimes does. It did in Dred Scott, and it did in Roe and much of Roe’s progeny.

  • Agreed as to Marbury Mike. Some colonial courts had engaged in judicial review so it definitely was not a new concept. What would have stunned the Founding Fathers is a Congress so riven by partisan divisions as to tamely consent to judicial usurpations as a way to “win” on contentious issues by judicial fiat. The Founding Fathers always assumed that ultimate power resided in the legislative branch, the branch closest to the people, and to have that power blithely ceded to the Judiciary would have astounded them.

  • One aspect of this is, I suspect sociological or cultural, and that is that the interests and values of the legal profession prior to a certain date were never at such a variance with those of the general public that judicial review was a reliable instrument of political factions. I’d also wager that the closer one grows to our time, the more the legal profession and academe are populated with people quite willing to utter errant rubbish with the utmost superciliousness.

    It should trouble everyone that the disbarred Little Rock Lounge Lizard and his lovely wife Bruno are respected personages, nowhere more so than at the college campuses willing to pay them $189,000 for 50 minutes of boilerplate. It should trouble everyone that David Plouffe was able to merchandise someone as vapid and silly as BO, something never attempted before in the annals of presidential politics. Of course it does not, and the people least troubled are those putatively devoted to the life of the mind. Sorry age we live in.

  • “Sorry age we live in.”

    Amen Art.

  • Donald says; The States never had the right to make or unmake any federal law either prior to, during or after the Civil War. I believe that 3/4 of the states can do anything they wish with the constitution, including completely do away with it. That fact alone shows were the power lies in our country. The USG serves at the pleasure of the states. That part of the constitution was written to ensure that if the USG became a tyrant, the states could control, replace, or do away with the constitution, as the states did in the first and second agreement with each other.

  • “I believe that 3/4 of the states can do anything they wish with the constitution, including completely do away with it.”

    A power which has existed since the inception of the Constitution and which has never been exercised by the States. That of course has nothing to do with individual states seeking to ipse dixit nullify Federal laws.

  • There is a rather interesting observation by Jefferson in a letter to Madison (6 Sept 1789)
    “On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”
    A salutary reminder that laws, including constitutions, are not judgments (which may be true or false) but commands, that is an act of the will.

  • “There is a rather interesting observation by Jefferson in a letter to Madison”

    Interesting, and as usual, wrongheaded. Fortunately it was Madison who, along with his Federalist (not the political party) allies who had the final say. Here’s Madison himself, in print in Federalist 49.

    In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

  • PZ
    Jefferson had obviously read Turgot, for whom the maxim thatthe earth belonging to the living and not to the dead or to those on it not under it, is a constant theme.
    Now, as Lord Acton noted of Turgot, “he taught mankind to expect that the future would be unlike the past, that it would be better, and that the experience of ages may instruct and warn, but cannot guide or control. He is eminently a benefactor to historical study; but he forged a weapon charged with power to abolish the product of history and the existing order. By the hypothesis of progress, the new is always gaining on the old; history is the e mbodiment of imperfection, and escape from history became the watchword of the coming day. Condorcet, the master’s pupil, thought that the world might be emancipated by burning its records.”
    Jefferson appears to have been of Turgot’s opinion; he was an extravagant hater of tailzies and perpetuities.

  • I’ve long maintained that Jefferson sounds much more like Rousseau in his language regarding constitutions, tradition, and democracy. Regardless of the influence, Jefferson’s philosophy is one that takes us down a rather dark path, in my opinion, but I’ve spilt so much digital ink on this topic that I’ll just leave it at that.

Prayer and the First Amendment

Friday, June 7, AD 2013

Bravo to Roy Costner IV!  Valedictorian of his class at Liberty High School in Liberty, South Carolina, he tore up his approved speech which did not mention God, and spoke about his Christian faith, reciting the Paternoster:

After speaking for a bit, the senior cut to the quick.

“Those that we look up to, they have helped carve and mold us into the young  adults that we are today,” Costner said in his speech. “I’m so thankful that  both my parents led me to the Lord at a young age. And I think most of you will  understand when I say…”

Costner then proceeded to recite a full-length version of the Lord’s Prayer,  the pivotal Christian prayer that is attributed to Jesus in the both the Gospel  of Luke and the Gospel of Matthew.

The audience members began to cheer tentatively and then heartily once they  realized what Costner was saying. The applause eventually became so loud that it  drowned out Costner’s voice.

At the end of the prayer, after Costner says, “Amen,” the audience breaks  into another round of wild applause.

Go here to The Daily Caller to read the rest.  The absurdity of Federal judges acting as censors of student speeches at commencement stems from a 6-3 decision of the Supreme Court in Santa Fe Independent School District v. Jane Doe (2000) in which the majority banned student led prayer at football games as an establishment of religion.

Chief Justice Rehnquist wrote a scathing dissent that began:

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).

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4 Responses to Prayer and the First Amendment

A Ravenclaw, not a Gryffindor (Updated)

Monday, July 2, AD 2012

For those conservatives tenaciously clinging to the idea that Chief Justice John Roberts is playing some masterful game of chess that will end only with the liberals on the Court, in Congress, and in the White House brought to their knees in humiliating defeat, well, I’m not even sure the Chief is up for a rousing game of checkers. According to Jan Crawford’s piece, Roberts’ change of heart was motivated in large part to concerns over media pressure. So, the Chief Justice of the United States, according to this report, was cowed into upholding Obamacare because he was afraid of how the Court – and especially he – would look.

It has been rightly pointed out that Crawford relied on two anonymous sources, and therefore this story should be taken with some fine grains of salt. It’s certainly a plausible story, but an unconfirmable one.

Fine. It is possible that the Chief Justice wasn’t cowed by media or executive pressure. But even if the Chief Justice was not particularly pressured to decide in favor of Obamacare, it’s not beyond reason to suggest that he was still concerned about the institutional prestige of the Court, as well as a respect for the other two branches of government. Thus he concocted a rather far-fetched legal argument in order to justify declaring as constitutional a statute he knew at heart was not constitutional. So the more charitable interpretation of Roberts’ behavior is not that he’s a coward, but rather an activist who decided to rewrite a statute from the bench in order to avoid embroiling the Court in a partisan political battle.

There is a third option: John Roberts legitimately believed in the argument he made about the statute’s constitutionality.

Which is the option in which the Chief Justice looks like a chess playing genius again?

The title of the post, by the way, comes from my wife’s suggestion that President Bush nominated a Ravenclaw when he should have nominated a Gryffindor. It’s certainly more logical than anything I heard the Chief Justice say last week.

Update: It occurs to me that there is a fourth avenue of “defense,” and that is Roberts made a brilliant political calculation by forcing Obama to defend the health care law as a tax. Put aside the question of whether or not that would be an astute political maneuver. If that were indeed Roberts’ intention, than that hardly speaks well as to his character as Chief Justice. If he decided to uphold the law only to enable its use as a partisan club against the president, then the Chief Justice would have engaged in behavior that would justify his removal from the bench. So his defenders might want to think twice about that line of attack, at least insofar as they posit that he willfully engaged in such politicking.

By the way, if you’re still unsure of what to think of John Roberts’ thought process, look who was helping him along and now has his back.

Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta, said he thinks Roberts sought out Justice Anthony Kennedy’s vote but didn’t spend much time trying to sway Justices Antonin Scalia, Clarence Thomas and Alito. Roberts, he said, probably didn’t worry about being punished by the conservatives.

“Roberts is a bigger man than that,” Kmiec said. “He might smile and recognize that was what they were doing, but he’d also just appreciate that was their way of making a statement. But he’d not chase the tail of the dog to try to turn it around.”

Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”

“I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.”

Well if he’s got Doug Kmiec on his side, what more can a man ask for than that?

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30 Responses to A Ravenclaw, not a Gryffindor (Updated)

  • I think Bush’s main flaw is that he’s a Hufflepuff, like me…and agree that he went for a Ravenclaw.

  • (Full disclosure: married a Ravenclaw-through-will; a lot of the classification is based on choice.)

  • There’s no sense in this checker game. What’s the payoff for Roberts by limiting the Commerce Clause when he knows that no future liberal Court will pay attention to the Constitution let alone judicial precedent? Roberts is not a befuddled justice without intellectual integrity. Is something more sinister afoot?

  • I’ve read an incredible amount of hoo-ha and wishful thinking by conservatives in the past few days – Roberts is a super-genius playing chess while every else is playing checkers(some libs follow this line of thought as well); his epilepsy meds damaged his judgement; he is secretly gay and the Obama administration is blackmailing him; and, my personal fav, the Chicago mob threatened him and his family. (As if the Chief Justice of the United States is on the same level as some obscure Cook County judge. As if a Supreme Court Justice would be helpless in the face of physicial threats. As if nobody would be suspicious if a SC Justice or a member of his family disappeared and were found swimming with the fishes in the Potomac.)

    Many people do not want to face the apparent fact that Roberts did what he did because he succumbed to the desire to be loved by the Right People (i.e., his neighbors in Chevy Chase, the NY Times editorial board, Georgetown hostesses). The opinions of such declasse individuals as the Tea Partiers and us little fly-over types – bah, who cares what such trash thinks? As if it is utterly unheard of, an incredibly rare thing to have a GOP appointment to the SC sell us out.

    I think people don’t want to think they were wrong about the man. I supported his appointment and was happy when he was confirmed because he would be a firm defender of our rights. I am willing to admit I was wrong.

    Klavan on the Culture nails it:
    http://pjmedia.com/andrewklavan/2012/07/02/happy-dependence-day/

    Do many Americans even understand what “independence” means these days? We are in a mad rush to copy ourselves after the Europeans – just as Europe fails.

  • I don’t think we are headed toward totalitarianism. That costs money – we don’t have it! No, I think we are headed toward chaos- and, since I am a middle-aged single woman, that frightens me almost as deeply as totalitarianism!

    If we can be taxed for breathing, I predict a huge growth in black market activities and under-the-table payments. I worked “under the table” as a barmaid in the U.K. in 1980 because when I got over there I found my Jimmy Carter dollars were worth next to nothng. A London pub owner offered me a part-time job and since I was low on cash, I accpeted.I never felt I was taking a job away from anybody, since most of the young Brit guys I met were on the dole. You think that’s not going to happen here? Obama will send the IRS out in force and many Americans will do anything they can to avoid the IRS.

  • Oh, and need I point out that the UK’s economy at that point was still dreadful? Thatcher’s reforms had not yet kicked in. I saw anti-Thatcher signs every where I looked.

    Paul, some commenter at Ace made the perfect analogy (and one I am sure you will appreciate since you are a fellow baseball fan). He said Roberts had described his job as being an ump, calling balls and strikes. In this case, a perfect strike went right over the plate and Roberts said, if the plate was over there, it would have been a ball. Therefore, I’m calling it a ball.

  • I think that Kmiec is confirming that Roberts was concerned about how he would look in the media.

  • “Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”

    “I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.””

    I was wondering about a Kmiec-Roberts connection when I heard that Kmiec was going to Malta of all places to teach law during the summer. Roberts is now reaping Kmiec’s reward for his support of Obama in 2008: scorn. I wonder if Roberts understands yet the fire that his decision has lit among conservatives in this country? Perhaps he will not fully comprehend it until election day when he may begin to understand that he sought to appease powers that be that will no longer be powers in the future.

  • Hmmm, look at this truly fatuous piece that Kmiec had run in the Jesuit rag America just prior to the Supreme Court ruling:

    http://www.americamagazine.org/blog/entry.cfm?entry_id=5204

    It is aimed at Justice Kennedy. Was this part of a last ditch effort to convince Kennedy to join Roberts in flipping? I doubt it, but it is interesting, especially the outright prediction that the Court would uphold ObamaCare.

  • That Kmiec asserts such knowledge about the inner-workings of the Court is troubling.

    There is great in silence. Opening the process to scrutiny opens the institution to exterior influences. The Court’s secrecy has been a shield. Secrecy allows the justices to fight honestly – a rare thing for lawyers. Without that candor, they cannot do their work.

    We see the same problem cropping up at the Vatican. There too, we have “leaks” that expose the messy world of making policy. We are not served by cardinals hiding their true views out of fear that they will be exposed.

    If, as Kmiec suggests, CJ Roberts is intentionally leaking the details of their work under some misguided attempt at transparency, that is a serious problem.

  • What everyone (at least among conservatives) seems to be assuming is that Roberts’ decision was based on ulterior motives. Could it even be remotely possible that his ruling was in accord with what he thought was . . . right? The commerce clause was never considered to be a slam dunk argument, and the possibility that the individual mandate could be viewed as a tax, was always acknowledged. People were only surprised at the outcome because they allowed themselves to overestimate the strength of the one argument, and to underestimate the strength of the other, not because the outcome was intrinsically obvious.

    As a conservative, I don’t find the individual mandate to be remotely disturbing. I am tired of paying for other people’s healthcare – they need to behave responsibly, and banking on charitable write-offs from hospitals (trust me – you are paying for this) is not responsible behavior. At the same time, coverage for individual policies is out of reach for most – one of the key levers we have is to broaden the risk pool, drawing down premium prices. From an economic perspective, I’m also in favor of reducing structural impediments to workforce mobility. To the extent that people have a disincentive to take risks and start new businesses or pursue new job opportunities because they are “afraid to lose their benefits,” we are inhibiting growth and innovation. Untaxed healthcare benefits are part of the collusion between government and big business, and are used as a means of increasing individual dependence on big corporate benefits. Time to crack this baby open and kill off this vestige of WWII-era social engineering.

    What Obamacare doesn’t address is one of the root causes of healthcare inflation – individual responsibility. Premiums are as high as they are because people spend as much as other people will give them. When there is little to no individual sensitivity to cost, consumption will continue to rise, and prices will go unchecked. There are no normal consumer dynamics at work, here. We are wasting the highest % of GDP of any nation in the world on something that is one of the most economically unproductive sectors, rather than anything that will produce future returns.

    That is one of my biggest concerns about Obamacare – it promises what it can’t deliver, is a huge waste of taxpayer money, and entails financial commitments (e.g. expansion of Medicaid) that will never be covered by cost offsets. Small example – look at Archives of Internal Medicine, March ’12 issue. The Value Based Purchasing incentive payments/penalties to hospitals is based partly on patient satisfaction. But as it turns out, patient satisfaction is INVERSELY correlated to mortality and inpatient service utilization and cost. Patients are happy when they feel that more “stuff” is being done. WHOOPS! I expect we will see that many of the clinical process measures defined in each stage of the Obamacare rollout will have similar results – because they were never tied to science, just to wishful thinking. “Oh, you’re concerned about the cost to cover an additional 40mm people? Don’t worry – we’ve got that covered.” I don’t think so. The biggest concern, of course, is that it is being used as a no-limit hunting license by HHS to impose whatever rules they deem “in the interest of public health,” (e.g. contraceptive coverage) without any Congressional oversight. This is all part of the hubris of the Obama administration – to take matters OUT of the public square and to let matters be decided by “the experts.”

    As for the individual mandate – it was originally proposed by conservatives who were looking for a way to leverage the private sector to address the real damaging consequences to productivity that result from a large uncovered population. It’s a perfectly reasonable proposal, and I see no need to try to generate conspiracy theories to explain how Roberts could conceivably have interpreted it as within the powers of Congress granted by the Constitution.

  • “Could it even be remotely possible that his ruling was in accord with what he thought was . . . right?”

    I truly hope not. His job wasn’t to determine whether ObamaCare wasn’t good public policy but whether it was constitutional. The very idea that ObamaCare could exist within the framework of the limited Federal government as set up by the Framers I find risible. The individual mandate was only one of many obviously unconstitutional features of this 2700 page monstrosity. Now that the Supreme Court has failed to do its job, it is time for the voters to do theirs on election day.

  • Could it even be remotely possible that his ruling was in accord with what he thought was . . . right?

    If you mean constitutionally right, I did raise that possibility. As I said, if so, it doesn’t really speak well for his judgment either.

    As for the amount of leakage on the internal Court happenings, it is very unusual. If it’s coming from one of the four anti-Obamacare votes, then it is in indication of just how furious they are with the Chief Justice.

  • “As a conservative, I don’t find the individual mandate to be remotely disturbing.”

    Let’s examine.

    A. “Premiums are as high as they are because people spend as much as other people will give them.” True, and this will not change under the proposed system. In fact, it will expand.

    B. “What Obamacare doesn’t address is one of the root causes of healthcare inflation – individual responsibility.” I’d have added “lack of” after the hyphen but essentially also true.

    Therefore, as a conservative, you find undisturbing a law or ruling that forces people into the current system, which directly contradicts the conservative principle of personal responsibility.

    Quo errat demonstrator.

  • I find it undisturbing on the grounds that it doesn’t patently exceed the Constitutional boundaries of Congressional authority. Possibly, but not patently. Reasonable arguments could be advanced from both perspectives. We can’t argue that something violates clear and evident first principles simply on the basis that we feel passionately about them. This just leads to circular reasoning, in which the only possible conclusion is that the adversary is denying the obvious because of some sort of willfulness or moral turpitude. That’s a severe charge, and at other times and places would have called for pistols at high noon, although I would be surprised if Justice Roberts chose to resort to such measures. It would be fun to watch, but he might be handicapped by his judicial robes. It seems like everyone is rushing to draw some sort of conclusion like that in this case – some sort of conspiratorial calculus on the part of Justice Roberts. Or, the other possibility is just that it’s not an immediately evident conclusion, in which case it would be reasonable to defer to Congress, even if Roberts disagrees with the approach as a matter of policy. And so, my hair refuses to stand on end, and I think this is probably a matter for journalists to attempt to froth up public sentiment so they can write more articles about how outraged the public is. As a case of perversion of justice, it fails to outrage.

    In terms of outrage on the part of the other conservative justices, we are basing this on what, exactly? A report from CBS quoting “anonymous sources?” I’m surprised that conservatives are being taken in by this kind of journalistic titillation, especially from an organization like CBS. Please.

  • Perhaps the term “Conservative” is the bump in the road. I know many liberals who believe just as adamantly that the mandate is well within the bounds of Congressional mandate.

    The ability to tax inactivity seems antithetical to a small-government, Constitutionally constructionist point of view, but I neglected to take into consideration the Social aspect.

    Seeing how most Conservatives believe that it’s perfectly fine for government to channel and shepherd behavior towards an acceptable (to them) moral standard, perhaps this is a welcome development if one resides on that segment of the spectrum.

    Mea Culpa.

  • *Congressional authority.

  • “Perhaps the term “Conservative” is the bump in the road. I know many liberals who believe just as adamantly that the mandate is well within the bounds of Congressional mandate.”
    If this is so, then the mandate needs to be put on the ballot to be fairly given informed consent, except that nobody knows what is in it and Obama is not about to tell. The mandate can change itself and morph into anything the unelected wants it to moroph into. A pig in a poke is a good simile, or a bridge in Brooklyn, or a pie in the sky, or the bottomless pit. Can anyone imagine falling into the bottomless pit FOREVER and forever. Why it is like homosexual behavior, doing that sin forever and forever. It has got to get boring, boring, boring. Somebody’s got to say: “Hey. that is boring.

  • “I’m surprised that conservatives are being taken in by this kind of journalistic titillation, especially from an organization like CBS. Please.”

    Rubbish. The CBS reporter Jan Crawford authored an evenhanded history of the modern Court, Supreme Conflict, and is trusted by judicial conservatives as a result. I think it highly likely that her sources are two of the Conservative justices, or two clerks of the conservative justices. Trying to raise the CBS bogeyman as a shield for Roberts is a poor tactic in this case. The more I study his decision the worse it looks, and the more likely in my mind that the considerations guiding him had little to do with the law, especially since reports are suracing that he authored most of the dissent as a majority opinion prior to his flip:

    http://hotair.com/archives/2012/07/03/salon-roberts-wrote-most-of-the-conservative-dissent-in-the-obamacare-case-too/

    After this debacle few people, left or right, are going to trust Roberts, or any decisions that he authors, to be ever be anything other than an ongoing exercise in Roberts’ expediency.

  • The fact of the matter is that Obamacare cannot be put on the ballot. It does not fulfill the requirements for the definition of a law. It does not inform the voter to gain consent. Obamacare relegates to unelected officials prerogatives that are the domain of the individual person, unauthorized use of prerogatives taken from the citizen as to their care and other unauthorized prerogatives not yet written out in the insurance contract. Therefore, Obamacare cannot be put on the ballot as a law, as Obamacare excludes informed consent and does not express the will of the people. Obamacare had to be railroaded through Congress by empty promises that can be changed after it is funded, and bullied through the Supreme Court as law. A penalty will acknowledge Obamacare as law. A tax will acknowledge Obamacare as law. Obamacare does not meet the criterion of a law. Abuse of the individual’s unalienable right to informed consent, denial of the citizen’s sovereign conscience, Obamacare cannot pass muster to be tried under the Commerce Clause, nor to be enacted as law, nor to be the basis for a tax or a penalty under the law that it is not.

  • Donald: you have a habit of saying “rubbish” in your prolific responses, and I’m not sure to what end. A statement of your conviction in your own opinion is meaningless to the other party, and obviously meaningless as a means to reinforce your own self-opinion. But perhaps that’s the dialectic standard of a blogger. I’m not sure if the goal is ever to persuade the other, or just to attract the attention of like-minded individuals.

    Everyone is aware that Jan wrote the article, as well as her past work, but a credulity is being granted to this rather preliminary piece of gossip that would not normally have been the reaction to the work, considered on its own merits. I’m sure there was friction and frustration within the court, as I am sure most contentious rulings are passionately debated. But that’s as far as it probably goes – a big “so what?” In other words, it’s making a mountain out of a molehill from the passion of the moment, and probably the indiscrete grumblings of a couple of clerks. No conspiratorial calculus, no permanent rift in trust or collegiality between the members of the Court, and probably not even an effect for the remainder of this session. By next session, this won’t even be a story. What strikes me as far more evident, beyond the rather hyperbolic overreactions, is that people have embraced the image of Machiavellian contortions on the part of Roberts with the same fervor and certitude that they embraced the applicability of the commerce clause to the individual mandate for precisely the same reason – because it suited their purposes and preconceptions, not as either stand on their own merits. They have some merit, some potential, but reasonable and less dramatic alternatives hold just as much merit. The fact that they “explain appearances,” to steal a phrase from Ptolemy, in a way that accords with our own political dispositions adds nothing to their merit or strength, independently considered. In other words, they do not become more true because we want them to be so.

    I would rather that Conservatives expend their energy not on conspiratorial outrage from such meager scraps, but on developing a truly compelling vision and strategy that returns us to economic prosperity, creates opportunities for all in a new global economy, protects individual liberty and conscience, and protects the family and religion, the basis of character and virtue, from the intrusion of the state. This other stuff is just bringing a pea-shooter to the fight.

  • “Donald: you have a habit of saying “rubbish” in your prolific responses, and I’m not sure to what end.”

    To accurately describe for my readers what is being conveyed by the other party.

    “Everyone is aware that Jan wrote the article”

    Rubbish. I doubt if you did until I pointed it out, and if you did you were being mendacious in attempting to raise the CBS bogeyman to discredit the story in the eyes of conservatives by a Pavlovian response.

    “In other words, it’s making a mountain out of a molehill from the passion of the moment, and probably the indiscrete grumblings of a couple of clerks.”

    No, an unsigned dissent is rare, and the passion and obvious anger with which Kennedy read the dissent is highly unusual. The firestorm being unleashed against Roberts is unprecedented in the contemporary history of the Court.

    “By next session, this won’t even be a story”

    That is delusional. This decision will haunt Roberts to his grave and beyond. Like Taney’s Dred Scott decision, this is the decision by which Roberts will go down in history.

    “What strikes me as far more evident, beyond the rather hyperbolic overreactions, is that people have embraced the image of Machiavellian contortions on the part of Roberts with the same fervor and certitude that they embraced the applicability of the commerce clause to the individual mandate for precisely the same reason – because it suited their purposes and preconceptions, not as either stand on their own merits.”

    Obviously wrong on both counts.

    “I would rather that Conservatives expend their energy not on conspiratorial outrage from such meager scraps, but on developing a truly compelling vision and strategy that returns us to economic prosperity, creates opportunities for all in a new global economy, protects individual liberty and conscience, and protects the family and religion, the basis of character and virtue, from the intrusion of the state.”

    Beating Obama in November is a start, and no longer appointing spineless cravens like Roberts to the Federal bench would be another. Conservatives this year need to concentrate on winning in November and not waste their time in defending a fraud like Roberts from the justified outrage that his self-serving betrayal of the Constitution has roused.

  • Again, “rubbish.” You are become predictable, Donald.

    As a matter of fact, when CBS first came out with the story, I did notice who the author was, and I was aware of the seriousness of her previous work. I also felt that, even with those factors, this was pandering to our baser instincts, and was more about initial spastic reactions to a surprising verdict than anything else. You seem to think that you are the only one who does their homework, and are pretty quick to 1)assume your conclusions are the only reasonable ones, and 2)the other party in the debate is suffering from the effects of some sort of psychotropic drug. Rather than argue about hypotheticals, let’s just take a look at this time next session and see if your apocalyptic predictions come true. The answer will be evident soon enough. In the meantime, I would propose that beating Obama in November will probably require a different tack – something a little more . . . weighty.

  • You are become predictable, Donald.

    Want predictable, how about folks changing the subject to the person they’re disagreeing with….

  • “Again, “rubbish.” You are become predictable, Donald.”

    And I will be utterly predictable in regard to your comments as long as you seek to push rubbish in the com boxes.

    “I did notice who the author was, and I was aware of the seriousness of her previous work. I also felt that, even with those factors, this was pandering to our baser instincts, and was more about initial spastic reactions to a surprising verdict than anything else.”

    Than you were being mendacious in attempting to raise the CBS bogeyman when you knew there were good reasons why conservatives should grant her story credibility.

    “You seem to think that you are the only one who does their homework”

    I judge by the content of the comment.

    “is suffering from the effects of some sort of psychotropic drug.”

    No, slip shod thinking is more frequently the culprit.

    “let’s just take a look at this time next session and see if your apocalyptic predictions come true.”
    Nothing apocalyptic at all in my prediction. I merely contend that Roberts has shredded his credibility and that no one is ever going to forget that.

    “I would propose that beating Obama in November will probably require a different tack ”

    Actually it has been my position prior to the decision being released, that the final nail in the coffin of the Obama re-election bid would be if the Court upheld ObamaCare. A fatal victory for Obama.

  • Well, the great thing about your position, Donald, is we can test it over the next year. Either public outrage builds and builds, and Obama and the Democrats are swept out of office with that (Obamacare) as a prevailing theme in the polls, or it all dies down and people move on to some other issue. Either the tension in the Supreme Court continues to build, or they move on. Either way, I hope the GOP wins in November, but I think any sustained momentum will require a different focus. Temper tantrums and intrigue are good for a month, and then people come back to the basic question . . . “how does this affect me?” The people who are affected by the individual mandate are primarily 1)young voters with low current (expected) healthcare expenditures, and 2)low-income individuals who cannot afford insurance through their employers (the unemployed are largely on Medicaid). Care to guess which party those two demographic groups tend to support? I can’t seem them rushing into our arms, saying “thank you so much for your advocacy on my behalf! How could I have been so blind?”

    So, outrage at a principle, in my estimation, will not trump people voting their (perceived) interests. The GOP base, and independents who can swing to support the GOP, are not primarily the ones who will be forced to buy insurance. And those who are forced to buy insurance as a result of the individual mandate are probably not going to move in any significant way on the argument that their Constitutional rights have been violated. They have too much of a vested interest in tax-and-spend policies for that to be a meaningful argument. It’s clear you want this to be a major issue, and are more than happy to endorse people who support that position. Whether it is a major issue will probably not be decided by our wanting it to be so, but we’ll find out soon enough. Let’s revisit this in November. Whether this decision “haunts Roberts to his grave and beyond,” well, I guess that will probably take a little longer than November to test.

    And Foxfier – I doubt Donald will whither under my brutal ad hominem attack. He seems rather resilient. See, he said “rubbish” again, undaunted and undeterred.

  • “with that (Obamacare) as a prevailing theme in the polls,”

    The lousy economy is the primary factor. The importance of Obamacare is that it invigorates conservatives for the election, especially adherents of the Tea Party. It also ensures that Romney will fight this election on at least equal terms with Obama when it comes to donations.

    “how does this affect me?”
    As the HHS Mandate indicates, broad portions of the American people are impacted by ObamaCare. Reportedly the Feds have been busy writing 13000 plus pages of regs to implement this monstrosity. You underestimate the depth of feeling among opponents to ObamaCare.

    “The GOP base, and independents who can swing to support the GOP, are not primarily the ones who will be forced to buy insurance.”

    The mandates in regard to insurance coverage are rapidly increasing their insurance rates. More and more private employers are being forced to abandon the provision of insurance due to these increasing rates. It is the rare person in this country who is not being directly impacted by Obamacare.

    “Whether this decision “haunts Roberts to his grave and beyond,” well, I guess that will probably take a little longer than November to test.”

    Indeed. I cannnot imagine anything that Roberts does in the future where I will not mention his Obamacare decision on this blog, and there will be many, many like me in tens of thousands of blogs.

  • And Foxfier – I doubt Donald will whither under my brutal ad hominem attack. He seems rather resilient. See, he said “rubbish” again, undaunted and undeterred.

    And that has what to do with the predictability of the your response?

  • Chief Justice Roberts approves RomneyCare as a tax, but all we get is middle-age white boys whining-whining-whining-whining-whining….

    Ain’t they got no self respect ???

  • He interpreted ObamaCare as a tax. Foxfier is neither middle-aged nor a boy. Donna, Ginny and Mary are not boys. Paul, the author of the post, is white and young. I am beyond middle age, unless I am going to live to 110. I guess I am white if Cherokee ancestors do not eliminate me from that category. Of course I was not whining but analyzing the ruling.

Of Kidney Stones, the Obamacare Decision and Election 2012

Thursday, June 28, AD 2012

 

 

I was primed today for the Obamacare Decision.  I made certain that I had no court hearings today, and my appointments were not starting until 10:00 AM.  Alas my third kidney stone decided to make its appearance at 7:00 AM.  By 9:00 AM I was suffering from truly memorable pain.  I stayed home from the law mines and had my secretary reschedule all my appointments except the 2:00 PM which was in the nature of an emergency.  Nursed by my wife, and my doctor who opened his office early for me, God bless him, I soon had in my system very strong painkillers and Flowmax.  By 1:30 PM I still felt like bayonets were probing my nether regions, but duty is duty and my wife drove me to my office for the 2:00 PM appointment.  By the end of it at 3:00 PM I was feeling semi-human, the pain killers and the Flowmax working their magic.

As for the Obamacare decision, a plain text copy of the decision may be read here, the majority opinion by Chief Justice Roberts is both brilliant and wrong.  His exposition of how th individual mandate violates the Commerce Clause is magnificent.  His transformation of the mandate into a tax was clever and wrong.  The idea that something is a tax if it is used as a penalty to compel behavior is imaginative and absurd.  Go here to read an examination of the decision shorn of legal gobbledygook.  Lost in the hubbub over this part of the decision is that Roberts had a majority of the court rule that states could refuse to take part in the Medicaid expansion, a key part of Obamacare, and that Congress could not punish them by taking away all their Medicaid money.  Go here to read an analysis of that portion of the decision.

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22 Responses to Of Kidney Stones, the Obamacare Decision and Election 2012

  • RAPE OF THE AMERICAN SOUL. RAPE OF THE VIRGIN SOUL OF THE UNITED STATES OF AMERICA. The bishops of the Catholic Church said “NO” we cannot abide contraception, abortaficients and sterilization, as these are evils against the dignity of the human being. Obamacare said that every person forced to participate, must dispense free contraceptives, sterilizations and abortaficients, nobody has to pay for this evil. This evil is free and therefore, you will cooperate in this evil by disseminating it to whomever demands it of you. This evil is a free gift and you have no choice, you must accept it and do as you are told. You may not say “virgin” or “abstinence” or “conscience” or FREEDOM as Obamacare does not care. You must accept this free gift of evil or you will be penalized, taxed, disenfranchised and pay, pay, pay.
    All Obama cares about is the power and the money, none of which is his.

  • Good timing I say. Thankfully Obamacare isn’t in effect yet, eh Don?

  • I am truly glad you are OK, Donald. Praise the Lord! You, Paul Zummo, Bonchamps and the others here at TAC are voices of sanity in an insane world. And thank you for the update.

  • Glad you’re on the mend, Don. I suggest you start drafting the Lincoln piece. If Obama’s not a lock, he’s certainly gotten a huge bounce.

  • I’m afraid it is not good timing. It is a political win for Obama. How many people read The American Catholic? How many people believe all that the Catholic Church teaches? Far too few. Far too few to shift an election. I’m afraid that this will be trumpeted as an accomplishment and the vastly uniformed people who vote in presidential elections will accept it as that. That said, I still hold hope that the abortion/contraception/conscience may be re-legislated even by a Democrat controlled Senate and a Republican President.

  • You completely misread the politics Joe. Obamacare has always been very unpopular and there is only one way now to kill it: defeat Obama.

  • “the majority opinion by Chief Justice Roberts is both brilliant and wrong. His exposition of how th individual mandate violates the Commerce Clause is magnificent. His transformation of the mandate into a tax was clever and wrong. ”

    IOW, this is something only a defense attorney could love, right Don?

    On a more serious note Chapman University’s John Eastman gave the decision a thorough fisking on both the Dennis Prager and Hugh Hewitt shows. On the former, he said he thought Roberts was a problem from the word go.

  • First of all, glad to see you’re on the mend, Don. This cannot have been the most pleasant of days for you, all around.

    I am curious as to whether the dissent was originally a majority opinion. Did Roberts flip sides and why? We will find out in due course, but that may be years down the road.

    Having read the dissent, I am about 99% certain that Roberts changed his vote, and that the dissent was meant to be the majority opinion. I should have a post providing further analysis up in about an hour or so.

  • Mac,

    Feel better.

  • What if there was an umpire and he called a strike when the ball was way outside– and then said, well that’s what I call a strike. Would the batter be called out after three of those pitches? What happens when you change or greatly expand the definition of a word-
    what else could be called a tax?

  • Don, I may be naive on some things but I read the political tea leaves pretty good. Before today, most of the “experts” were predicting a setback for Obamacare. The best bet to thwart it is for the states to refuse compliance, as some Republican governors have signaled. Obamacare/Romneycare (writ small), pretty much same thing.

  • Donald, I hope you are feeling much better now.

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  • Shoot Don – get well!

  • Well more of a plea for better health than a demand:)

  • “You completely misread the politics Joe. Obamacare has always been very unpopular and there is only one way now to kill it: defeat Obama.”

    I have my doubts that even defeating Obama, as necessary as that is, will rid us of the scourge of Obamacare. Getting rid of it, unpopular though it may be, will be no small task. As Ronald Reagan once said, “The closest thing we get to eternal life here on earth is a temporary government program.”

    Having a repulican president who basically provided the blueprint for it and a deplorably weak GOP leadership, I wouldn’t hold my breath.

  • I have no doubt that Romney will keep his word to do away with this Greg. This election is now about two things: the economy and Obamacare and on both issues Romney and conservatives and on the right side of public opinion. Roberts, inadvertantly, has assured the defeat of Obama and more Democrats in Congress by his bizarre switch. I would also note that since Obamacare is now a tax, a move to repeal it would probably not be subject to a filibuster in the Senate. Roberts, by sustaining Obamacare as a tax, couldn’t have given the GOP a more potent campaign issue if he had set out deliberately to do so.

  • Anzlyne:

    BINGO!

    Congress, on a majority vote, can take everything you have.

    It’s in the Constitution.

    Ask Obama.

    Ask Roberts.

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  • I hope you are right Don. But the thing is this is not going to be all that easy to do away with. Romney also has a serious credibility problem on this issue given that he did much the same in Massachusetts. The likelihood of the seriously gutless GOP leadership facing down this behemoth is slim to none.

    But we shall see.

  • Don

    Hope your feeling better.

    Well pushing back Wicked v Filburn is good, but it is still a net loss if Obamacare is not repealed.

    Repeal Obama in November!

  • The stone hasn’t passed yet Hank, but I am largely without pain and functional. We will repeal Obamacare at the polls!

ObamaCare Ruling Watch

Wednesday, June 27, AD 2012

 

 

When the decision of the Supreme Court is released tomorrow at 9:00 AM Central Time I will do my best to link to the decision and have some commentary, work permitting in the law mines.  Now of course we can only guess what will happen.  Few things are more futile than attempting to guess what a court will do, but it is fun!  I share in the conventional wisdom that the Court will likely strike down the mandate but uphold the rest.  From a political standpoint, although it would be a travesty under the Constitution, I would prefer that the Court uphold the whole thing, since I think it would ignite a firestorm among conservatives and lead to a devastating defeat for Obama in the fall.  Well, we will see what happens tomorrow.

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One Response to ObamaCare Ruling Watch

Obama Bullies Supreme Court

Monday, April 2, AD 2012

28 Responses to Obama Bullies Supreme Court

  • So when the court acts against the wishes of the majority but for the administration Obama loves the court but when it goes against him they are “unelected” officials thwarting the will of the people. Same spin, different day in DC.

  • “I can’t recall a president before attempting to threaten the Court to get a result that he wanted in a particular case”

    What about FDR’s plan to “pack” the Court with additional justices in order to get favorable rulings on his New Deal programs (aka the Judicial Procedures Reform Bill of 1937)? That may not have been tied to any particular program, but the intent was the same, as far as I can tell.

  • Speaking of activism …
    a professional at racial activism where there had been peace
    and since when is the Constitution a guide? Sounds influential in activism way?
    The thing I don’t get about this statement is the ‘WH reluctance to appear to lobby before arguments’ – appear word spells insincere. The decision planned for June will be made amid spin and whirl of blatant, screaming activism, all appearances aside.
    Speaking of activism is insulting and transparent.
    How about that conference in Las Vegas for 300 people at $800,000 – no group discounts available, economic benefits for the US were? But, that’s probably just a low budget trip in comparison to other work conferences in the interest of the fiscal health of the US. These conference should be held on military bases where there are accommodations.
    There’s a report of some nasty radio talk host defiling a woman in politics with a foul diatribe – but she’s an R so feminists and their president won’t bother to take their activism stand for such an outrage of hate crime from the media. Appearance of sincerity about definitions of law and activism from the main role models of the world.
    Well, I’m going to turn down the heat and shut off the 60W light now to save energy.

  • Elaine is right. This is in the Dems’ playbook and has been for a long time.
    And or the record, properly understood “judicial restraint” refers to the federal judiciary refraining itself from interfering with states exercising their constitutional police powers, not refraining Congress from exercising powers not granted to it under the Constitution. A cynic might say that Obama is well aware of this distinction but is flirting with the truth. I am not that cynical. I don’t think Obama has a clue.

  • Elaine and Mike it might amuse you to know that when I wrote this my wife said that someone would bring up FDR’s court packing scheme. I retired at my customary 10:00 PM. When my wife came upstairs to join me she informed me that you both had raised the court packing scheme!

    I put that in a different category from what Obama is attempting to do here. The Constitution does not mandate the size of the Supreme Court. In order to get a favorable Court FDR proposed a Rube Goldberg piece of legislation to increase the size of the Court. In doing so he sustained his first serious domestic defeat in Congress. As bad as FDR’s plan was, bad enough to cause Democrats in Congress to rise up in revolt, it was an attempt to legislatively deal with the situation. Here, Obama is attempting to bully the Court about a particular case that it has under consideration. Any lawyer should know that is manifestly improper. Although as Mike said, I think Obama does not have a clue.

  • No comment other than good post. I just want to follow the other comments.

  • How is Obamacare a “passed law” if the law remains to be written by Sebelius? The individual mandate is slavery to an unelected. Obama is a slave master.

  • It does not bother me when an elected official insults and threatens the appellate judiciary. They have earned it.

    Reading commentary by lawyer liberals on this subject gives rise to a certain amount of amusement at someone else’s (well-earned) irritation.

    One thing that disconcerts: the phrase “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” seems to apply only to transactions where merchandise is shipped accross frontiers, services are contracted for by parties in different jurisdictions, or funds are transferred between one jurisdiction and another. Profs. Fried and Laycock inform us that this phrase applies to any household economic decision which has the potential for a transfer of goods or services or funds between jurisdictions and that the contrary view is unserious. The layman I think can be forgiven for suspecting that ‘constitutional law’ is a verbose scam rather like psychoanalysis.

    Republican lawyers of the stripe of Profs. Fried and Laycock saying that it is an unserious idea

  • I totally agree, Don. Obama is doing more than just playing politics in advance of a potential adverse ruling. He knows that certain Justices coughAnthonyKennedycough can be influenced by exterior pressures. Now, it strikes me that even Kennedy isn’t buying what Obama’s lawyers were selling, but it is not unreasonable to think that Obama is politicking the judiciary. After all, the votes taken on Friday are not set in stone.

  • How unlikely is it that “someone” is leaking the votes to the president? The justices should be sequestered on this bill and all their cell phones taken away.

  • I got a feeling one of Bam’s buddies on the court, likely either Kagan or Sotomayor, leaked it to the White House that the Supremes will side with the administration, 5-4. Bam clearly has no respect for the three separate but equal branches of the federal government and this is simply a power play to show that he, as the nation’s Supreme Leader, can have his way. Intimidation usually works in the public arena, especially when the stenographers in the media take down every word he says as gospel and transmits them to the stupid masses unleavened with any sort of objective analysis.

    Yale law professor Stephen L. Carter in his latest column on Bloomberg says the differences are not constitutional but ideological and concludes:

    “No matter which way the court rules, the question of how best to provide health insurance will wind up back in the laps of our elected representatives. Politics at its best comprises reasoned arguments by reasonable people. When the justices toss this battle back to the politicians, let’s all hope for less shouting and more thinking.”

  • elm, if there is a leak I would suspect clerks or secretaries. In any court, in my experience, it is difficult to keep anything secret if you know who to talk to on the support staff.

  • “It does not bother me when an elected official insults and threatens the appellate judiciary. They have earned it. ”

    Few people in Saint Blogs have spoken out more against judicial usurpations than I have Art. However, having a president threaten the judiciary is unseemly, dangerous and an indication that the head of state is completely unsuited for the great office he holds.

  • I don’t think Obama has a clue.

    And the subject he taught during his twelve years as a lecturer at the University of Chicago Law School was….

  • You readily discren when Obama is lying. His lips are moving.

  • Wasn’t the purpose of an appointment for life to remove the Supremes from the influence of the politicians who would try to influence them. If that no longer applies then maybe it is time to amend the Constitution to set a term of office for elected Supremes.

  • Instapundit:

    “Obama must be expecting to lose. Because if he wins, this kind of threat will simply allow people on the right to argue that the Supreme Court’s decision was the result of intimidation, and deserves no deference by a new Supreme Court. And how will Obama’s feminist supporters feel, given that those all-important abortion and birth-control decisions also came from an “unelected” Supreme Court?

    “And if I were a Republican member of Congress I’d immediately introduce a proposed Constitutional amendment to elect all future Supreme Court justices in a national vote, with no input from the President. Just for fun . . . .”

  • You realize, folks, that happily there is one Court which Barack Hussein Obama cannot bully:

    “11* Then I saw a great white throne and him who sat upon it; from his presence earth and sky fled away, and no place was found for them. 12 And I saw the dead, great and small, standing before the throne, and books were opened. Also another book was opened, which is the book of life. And the dead were judged by what was written in the books, by what they had done. 13 And the sea gave up the dead in it, Death and Hades gave up the dead in them, and all were judged by what they had done. 14 Then Death and Hades were thrown into the lake of fire. This is the second death, the lake of fire; 15* and if any one’s name was not found written in the book of life, he was thrown into the lake of fire.” Revelation 20:11-15

  • “years as a lecturer at the University of Chicago Law School was….”

    Thinking back to my law school days Art, that could be taken as prima facie evidence that he knows nothing about Con Law!

  • “We shall go before a higher tribunal – a tribunal where a Judge of infinite goodness, as well as infinite justice, will preside, and where many of the judgments of this world will be reversed.” Thomas Meagher (late B/Gen, Army of the Potomac), statement in court upon his death sentence for leading the fight to free his native land.

    Happily, the sentence was commuted to transportation to Tasmania. The rest is history.

  • God heals. Everyone knows that. Well maybe Ruth Bader Ginsburg does not. Like the atheist who denies the existence of God and then ceases to exist, Ginsburg, Kagan, Sotomayer and perhaps Kennedy may refuse to believe that God heals and cause the voters to believe that they are buying healing through Obamacare. Obamacare is a premium to pay for insurance to pay for a doctor to try to cure. Obamacare has some people believing that they can go and contract HIV/ aids, go to the doctor, the doctor will give them a pill and HIV/aids will be cured. A whole generation believe that the doctor can make any disease go away for the price of an office visit, if Obamacare pays for the office visit.
    Recently a new book entitled: 4 myths of the Book of Revelation, has appeared, trying to make the Four Horsemen of the Apocalypse: Death, War, Famine and Plague disappear. The writer ought to have entitled it: Obamacare, and forced every citizen to purchase it.
    The little shop of horrors at 1600 Pennsylvania Avenue keeps demanding “Pay me, Seymour, pay me”, “I am the great oz”, while God heals. God heals, so, who ya’ gonna call? Holy Ghost Busters. Oberammergau right here in the good ole USA., a little Medugorje, definitely some Lourdes, the Sacrament of Healing.
    Paul Primavera: What you wrote is beautiful. One Hail Mary in Latin.

  • Av? Mar?a, gr?ti? pl?na,
    Dominus t?cum.
    Benedicta t? in mulieribus,
    et benedictus fr?ctus ventris tu?, I?sus.
    S?ncta Mar?a, M?ter De?,
    ?r? pr? n?b?s pecc?t?ribus,
    nunc et in h?r? mortis nostrae.
    ?m?n.

  • “No matter which way the court rules, the question of how best to provide health insurance will wind up back in the laps of our elected representatives. Politics at its best comprises reasoned arguments by reasonable people. When the justices toss this battle back to the politicians, let’s all hope for less shouting and more thinking.” How strange these men want reasoned thinking while denying the rational and immortal soul of the human being. They want less shouting while citizens are being herded into pens and corrals for slaughter. and people should think what they are told to think. If Obamacare says you got no rights, you got no rights(Obama, the rational). Just hurry up and pass it so we can learn what is in it. (Pelosi, the immortal). Tonight your life will be demanded of you.

  • I’m reading Obama’s comments differently. I think that it’s damage control.

    The average moderate, or swing voter, doesn’t care about ideology. They care about results. They don’t want an incompetent president. If the health care bill fails, what can Obama point to as an accomplishment? A lot of people think that he was wasting his time on health care when he should have been trying to improve the economy. (I think that’s wrong in several different respects, but I’m talking about the moderate voter here.) If he spent four years and only got a partial economic recovery, no health care deal, resolution to one war that was practically over with alreadly and no resolution to the other war that looked like it should have been over with, I just don’t see him claiming the right to lead for four more years.

    He’s already shown that he wants to run against Washington (which should tell you how little this campaign is going to be based on facts). If the health care bill gets slapped down, then he’s got to spin it as the Court overstepping their bounds, with him as the heroic reformer.

    This is where politics can drive you crazy. There are people who don’t want to see the health care reform bill become law, but they’d support the President if it does, and turn away from him if it doesn’t. It was a 100% Democratic creation, but the Democrats are going to blame the Court’s rejection of the bill on Republicans. The President played almost no role in “crafting” the legislation, but he gets all the credit, and is going to get a lot of the blame if it fails. And the whole thing could have sailed through the Supreme Court if Congress had remembered to put a separability clause in it, but they never expected to have to send the Senate version to the House. So the political impact of the Court’s decision can’t really be viewed in terms of actions and consequences in a logical way.

    So I don’t think this is intimidation. It’s the President bracing himself for the humiliation that will follow an unfavorable Court decision.

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  • Pinky: All those things. Obama is poised to seize every piece of private property through Rural Councils, from everyone who refuses to abide by Obamacare. Hilliarycare was to imprison doctors for two years in Federal prison if they refused to abide by Hillarycare. Obama circumvented this by going for the real property of the non-compliant. Obamacare coupled with other of Obama’s Exeutive Orders will fill the coffers of his government just as the gold and wealth filled Hitlers coffers. (The bank in Switzerland is still trying to count all the Jewish gold Hilter shipped to it) What boggles my mind is that after AFTER the National Defense Authorization Act was passed by Congress, Obama himself, removed the part that protected American Citizens, making all persons liable to detention, indefinitely, without chagerres. (Just like in Mexico where they throw you in jail and forget about you. In mexico they really do not care. But obamacare has a plot for criminally accomplishing what his wants to do) Obama will get is way by hook or crook, by threatening, by intimidating, by swindling, by bait and switch. You can take that to the bank. Obama does not need voters. When push comes to shove, it is already too late.

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Third and Final Day of Oral Argument on ObamaCare

Wednesday, March 28, AD 2012

 

 

Day 3 of oral argument on ObamaCare.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.   Go here for audio highlights of the oral argument.

A very long day in the Supreme Court today with the severability argument this morning, and the expansion of medicaid under ObamaCare in the afternoon.

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3 Responses to Third and Final Day of Oral Argument on ObamaCare

  • Obama’s gonna have a fit if it’s struck down.

    And if it’s upheld, then he will be embolden as never before.

    Either way, his reaction won’t be good for us.

  • Don

    I suppose Justice Thomas is the only one who might take the sensible postion that it is unconstitional becasue it is dependent on WickedWickard, and that was wrongly decided.

    :- )

  • If I had to choose, I would rather him have a fit, one giant hissy fit. 🙂

    I just heard day 2 and 3 and read the transcripts. Judging based on presentation and arguments, I think the petitioners, FL, et. al., have a good case and were well represented by Mr. Paul Clement. He answered directly and confidently.

    Verrilli had a better day 3 than 2, but he still comes off at times as ill prepared and nervous. He has a lot of breaks in speech and is often needing the leftists on the bench to bail him out. (Often is measured as a quantity exceeding the number of times Clement needed an assist.) His arguments on day 2 came out very often as verbal spaghetti.

    The impression is it looks good for the Constitution, but these justices may surprise. It will be an interesting opinion. I hope it goes well and is released on my birthday, which is near the end of June. What a present it would be.

Day 2 of Oral Argument on ObamaCare: Train Wreck For the Administration

Tuesday, March 27, AD 2012

19 Responses to Day 2 of Oral Argument on ObamaCare: Train Wreck For the Administration

  • I’m stretching back to law school days so I may not have it right but I recall that Scalia wasn’t all that fond of striking down sections of a bill, that he favored an all-or-nothing approach. If this is right, how does it affect your read?

  • It sounds hopeful, if CNN’s words are true. I value Donald’s analysis much more than CNN’s. I value and appreciate the analysis because I don’t have the legal mind to interpret or the time to quickly read the entire transcript. So in advance, thank you!

  • Justice Kennedy left a ‘tell’ when he commented, as opposed to questioned, how the mandate fundamentally changed the relationship between the individual and government. Pray, pray, and pray some more!! Our Lady of Victory…….

  • I have read some of the transcript…. questions.

    1. What is Justice Sotomayor doing in this case? She should have recused herself.

    2. And what is with her using Occupy speak? “Only 1% of the people can afford to self-insure.” Why not just say a minority can self-insure. Don’t need the whole 99% vs. 1% warfare business.

  • FWIW I have serious reservations about the constitutionality of the mandate, but it has some attractiveness as a policy matter. (Just as not all bad laws are unconstitutional, not all good laws are constitutional.) Since American society has already decided that necessary health care should be available to everyone, including those who are uninsured, and that government will reimburse providers for such care (and good luck reversing that social assumption!) there is a pretty compelling case in favor of a mandate to avoid irresponsible free riders. I would make two observations though. First, I would prefer that the mandate be required by states rather than the feds, for reasons grounded in both constitutional law as well as practical prudence. Second, the mandated insurance should be limited to truly life-threatening or very serious conditions the cost for which would be regarded by most families as catastrophic. The government should not mandate that my neighbor insure my wife’s physical ability to play tennis, let alone require my mother to pay for her neighbor’s birth control.

    Private companies can certainly offer more expensive policies with richer coverage, but only on a voluntary basis.

    In sum, we need to de-couple insurance from employment, eliminate its tax-favored treatment, allow interstate competition, and limit its mandated application to only serious medical matters appropriate for the risk-sharing/shifting nature of insurance. Obama care fails in almost all important respects.

  • I’ve been trying to drive home that point to my kids, Kyle.

    Giving specific numbers, if you don’t know them to be true, is a lie, and a transparent one at that. Words like most, many , some, etc. are proper descripters and an argument is all the stronger for not having to eat your words when they are found to be false.

    If my seven year old gets it, why do we adults blunder into that minefield again and again?

  • Mike, you raise good points. I particularly like the idea of treating insurers like the national companies that they are rather than maintaining the fiction that they are state entities. The present system has all of the negatives and none of the positives of state enforcement.

    Had Congress approached this intelligently, I’ll bet there was a lot of agreement to be had. Congress could have crafted small bills establishing a national insurance board, licensing, and liability through the federal courts. Instead, they wrote an omnibus bill that is likely unconstitutional and, if constitutional, unworkable.

    No time to read it indeed!

  • Even if Constitutional, how would you enforce the mandate? Presumably, those who cannot afford the coverage, would not be able to afford the fines (or else they would just get the coverage).

  • Mike Petric “irresponsible free riders”?
    Cmatt: Excellent post. Why is there a penalty inscribed into Obamacare? If one cannot afford to buy an expensive car, must he pay a penalty for not buying the car? Will the government seize your property through a lien after you’ve passed away if you cannot afford to buy the car and must pay a penalty?

  • Mike Petric: “Second, the mandated insurance should be limited to truly life-threatening or very serious conditions the cost for which would be regarded by most families as catastrophic.” Mike you have just reiterated the abortion mantra. Why should your mother be mandated to pay for your neighbor’s abortion?

  • Mary,
    People who prefer not to buy health insurance but expect others to pay rare indeed irresponsible free riders.
    I have no idea what to make of your second post. I apologize but simply do not understand you.

  • As much of an unconstitutional piece of crap this law is and how badly the administration is arguing their case, I don’t count my chickens until they hatch with SCOTUS.

  • Mike Petric: I think I was agreeing with you.

  • Thank you for the transcripts. 76 pgs. and 111 pgs. plus the word counts/refs.
    It’s interesting and totally refreshing for me, a simple reader, to hear actual objective thought expressed from the Supreme Court Chief Justice and other Justices. The Federal Government branch that is realistic and working.

    The degree to which crippling, partisan politics in the other two branches has risen, (or fallen?), is beyond consideration. The rhetoric is irresponsible and propaganda laden, aimed at stirring elitism and racism or hatefulness in this formerly workable melting pot. These people are ignoring their budgets, the economy of this country, and the unthinkable national debt because they can and they have something or someone to ‘blame’ due to ‘next’ elections. Seems the only thing that matters to the actual president are his campaign funding party events and power broking world travels. Is accountablity so minimal that it’s only found in election results?

    Anyway, thank you. It’s good that the relationship between federal government and citizens is worth considering by this Branch. Healthcare of all things! Why did the proponents decide to be exempt from their healthcare mandate – very phony … ?

  • Mary, I can see that now — I just was not sure — sorry.

  • Rand Paul filed an amicus brief asking the court to overrule Wickard v. Filburn while they’re at it. I’m not a lawyer, but it sure looked good to me. 🙂

    http://aca-litigation.wikispaces.com/file/view/Rand+Paul+amicus+%2811-398+MCP%29.pdf

  • I’m with Greg. Too many conservatives read of or saw Toobin’s “train wreck” description and are celebrating prematurely. I was sure Obamacare would not pass until the moment it did, so I’ve learned my lesson. The fat lady hasn’t sung yet – or rather, we don’t know yet what whims and fancies may seize the mind of the most powerful man in the country – maybe one of the most powerful Americans ever. Who knows what side of the bed, left or right, Kennedy will get up on the day the vote takes place? Remembering Kelo, I remain a pessimist.

  • Mike Petric: I, too am sorry. I do not express myself as well as I would like.
    Mary

  • “Rand Paul filed an amicus brief asking the court to overrule Wickard v. Filburn while they’re at it. I’m not a lawyer, but it sure looked good to me.”

    RL, it WOULD be good for the Court to overrule Wickard v. Filburn. For you non-lawyers, let’s just say that Wickard ranks behind ONLY Roe v. Wade and the Dred Scott case as THE worst Supreme Court decision of all time. And it is easily the worst Supreme Court case regarding economic activity and the regulatory power of the federal government over individual liberty.

    Alas, its continuing validity makes the ObamaCare casee a mor difficult decision for the Court than it otherwise should be. Therefore, it it high time for the Court to once and for all overrule that abomination of an opinion.

Transcript of First Day of ObamaCare Oral Argument

Monday, March 26, AD 2012

 

 

I would caution everyone from reading too much into the questions asked by the Justices on the first of three days of oral argument, but it was an interesting day of oral argument.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.  My thoughts on the first day I will post this evening.

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One of Our Black Robed Masters at Work

Friday, June 3, AD 2011

Fred Biery, a Bill Clinton appointee, is a Federal District Judge down in Texas.  In order to satisfy two village atheist parents of a student who contend that their 18 year old “child” will be irreparably damaged if any prayer escapes any lips during his high school commencement ceremony, Biery has banned all prayer at the high school commencement of the Medina Valley Independent School District on Saturday.  This includes the Judge censoring the speech of the valedictorian of the graduating class, Angela Hildebrand, a Catholic, who wished to say a prayer in her speech.

Chief U.S. District Judge Fred Biery’s order against the Medina Valley Independent School District also forbids students from using specific religious words including “prayer” and “amen.”

The ruling was in response to a lawsuit filed by Christa and Danny Schultz. Their son is among those scheduled to participate in Saturday’s graduation ceremony. The judge declared that the Schultz family and their son would “suffer irreparable harm” if anyone prayed at the ceremony.

Texas Attorney General Greg Abbott said the school district is in the process of appealing the ruling, and his office has agreed to file a brief in their support.

“Part of this goes to the very heart of the unraveling of moral values in this country,” Texas Attorney General Greg Abbott told Fox News Radio, saying the judge wanted to turn school administrators into “speech police.”

I’ve never seen such a restriction on speech issued by a court or the government,” Abbott told Fox News Radio. “It seems like a trampling of the First Amendment rather than protecting the First Amendment.”

Judge Biery’s ruling banned students and other speakers from using religious language in their speeches. Among the banned words or phrases are: “join in prayer,” “bow their heads,” “amen,” and “prayer.”

He also ordered the school district to remove the terms “invocation” and “benediction” from the graduation program.

“These terms shall be replaced with ‘opening remarks’ and ‘closing remarks,’” the judge’s order stated. His ruling also prohibits anyone from saying, “in [a deity’s name] we pray.”

Should a student violate the order, school district officials could find themselves in legal trouble. Judge Biery ordered that his ruling be “enforced by incarceration or other sanctions for contempt of Court if not obeyed by District official (sic) and their agents.”

The Texas attorney general called the ruling unconstitutional and a blatant attack from those who do not believe in God — “attempts by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever.”

“This is the challenge we are dealing with here,” he said. “(It’s) an ongoing attempt to purge God from the public setting while at the same time demanding from the courts an increased yielding to all things atheist and agnostic.”

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9 Responses to One of Our Black Robed Masters at Work

  • Outside of maybe a blow to their little egos, I’m curious as to what “irreparable harm” the atheists think they will come to if someone prays. Will their heads explode? Are they afraid of being smitten? Maybe the roof caving in on them? Breaking out in hives?

  • Presumably Mandy the irreparable harm is exposure to a point of view they don’t agree with, something the educational process of course normally does as a matter of course.

  • Like Scalia, I think commencement prayers that are part of the official agenda are not offensive to the establishment clause, but I acknowledge that a contrary position is not unreasonable. But a restriction against a voluntary invocation by a valedictorian is indefensible.

  • Wouldn’t it be grand if the students, en masse and led by the Valedictorian, prayed the Our Father? Loudly, reverently.

  • There is nothing new under the Sun.

    Reminds of English attempts to do away with irish Irishness.

    An old ditty:

    Oh, Paddy, dear, an’ did ye hear the news that’s goin’ round?
    The shamrock is forbid by law to grow on Irish ground!
    No more St. Patrick’s Day we’ll keep, his colour can’t be seen,
    For there’s a cruel law agin’ the Wearin’ o’ the green.
    ~Author Unknown

    Living, breathing zombie constitution . . .

    “We have buried the putrid corpse of Liberty.” Mussolini, 1937.

  • “Wouldn’t it be grand if the students, en masse and led by the Valedictorian, prayed the Our Father? Loudly, reverently.”

    That is precisely what is needed G-Veg. Let the judge then do his worst. I doubt if even he would think that he could lock up parents and students who are not parties to the suit for contempt, but with this judge I would not make any bets. If he were foolish enough to do that, I can imagine that the outcry would be immense.

  • “A Living Document”.

    We have the same idiocy over here.
    Back around 2001 our then Attorney General, an ex-communist member of our then Labour government, Margaret Wilson, proclaimed the “Treaty of Waitangi” – the treaty between the British crown, white settlers and the Maori chiefs of NZ – a “Living Document”.

    So what happened?
    Radical maori started claiming the radio and TV air waves, all oil and mineral rescources, fishing rights to our 200 mile territorial limit – all sorts of crazy things that never existed back in 1840 when the treaty was signed.
    I think it would be a reasonable thing to re-introduce firing squads to resolve this sort of treasonous behaviour. (well – almost)

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