Are we just beginning to see the effects of the GOP's packing of the federal courts with legal stumblebums?

Georgetown Law Prof. David Cole argues in the NYRB: "Unless the Supreme Court is willing to rewrite hundreds of years of jurisprudence, [the constitutional challengers of the health care law] will not succeed." Would anyone really care to take that bet?

by Ken

From the You Can't Make This Stuff Up Dept.: No sooner do Howie and I go nattering on about Supreme Court Justice Clarence Thomas's law-breaking on financial disclosure forms and his and fellow Justice Antonin Scalia's clearcut conflicts of interest with the money and favors they and their families accept from right-wing donors when along comes this item in the NYT (links onsite):

February 4, 2011

Justice Thomas's Wife Sets Up a Conservative Lobbying Shop

By ERIC LICHTBLAU

WASHINGTON -- The wife of Justice Clarence Thomas, who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed "ambassador to the Tea Party movement."

Virginia Thomas, the justice's wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for "liberty-loving citizens" who favored limited government, free enterprise and other core conservative issues. She promised to use her "experience and connections" to help clients raise money and increase their political impact.

Ms. Thomas's effort to take a more operational role on conservative issues could intensify questions about her husband's ability to remain independent on issues like campaign finance and health care, legal ethicists said.

Justice Thomas "should not be sitting on a case or reviewing a statute that his wife has lobbied for," said Monroe H. Freedman, a Hofstra Law School professor specializing in legal ethics. "If the judge's impartiality might reasonably be questioned, that creates a perception problem."

Ms. Thomas's founding of her own political consulting shop, Liberty Consulting, was first reported Thursday by Politico, which said she had begun reaching out to freshmen Republicans in Congress.

The move comes a few months after she gave up the top spot at Liberty Central, a conservative Web site that she founded in 2009 and that has strong links to the Tea Party movement.

An anonymous $500,000 donation to start up Liberty Central came from Harlan Crow, a Dallas real estate investor and Republican financier, Politico reported.

Mr. Crow, reached by phone Friday, would not say whether he was the source of the money. "I disclose what I'm required by law to disclose," he said, "and I don't disclose what I'm not required to disclose."

Ms. Thomas did not respond to telephone and e-mail requests for an interview on Friday. The Daily Caller reported in December that she had said in an interview that she was looking forward to a new role involving "lobbying on Capitol Hill" and a variety of other hands-on operational duties.

Arn Pearson, a vice president at Common Cause, a liberal group that has been critical of potential conflicts at the Supreme Court caused by Ms. Thomas's work, said her new position, combined with Justice Antonin Scalia's recent address before a closed-door seminar of the Tea Party Caucus, provided further evidence of "the politicization of the court."

"The level of bias we're seeing is really troubling," Mr. Pearson said.

As I pointed out last night, if we applied the "If the Shoe Was on the Other Foot" test, and imagined that it was the spouse of one of the moderate justices rather than one of the far-right-wingers engaged in this kind of blatantly ideological activity, the Right-Wing Noise Machine would be at full screech 24/7, and it seems to me unlikely that the poor soul could survive, even with the seemingly impenetrable job protections afforded a justice. And of course the whipped-up rage, however bogus, would then be channeled to equally bogus anti-constitutional causes.

Why does it matter? Because the current Rightist strategy, now that the Rightists have succeeded in having all levels of the federal judiciary stuffed with legal hoodlums and ignoramuses, is to fill the dockets with challenges to existing legislation and pump as much crud as they can pass through Congress and stage legislatures into the pipeline. Since the Gang of Four and a Half (Thomas, Scalia, Roberts, and Alito plus "Slow Anthony" Kennedy) no longer even waits for issues to reach them but actively shops for cases in the system which will allow them to rewrite the Constitution into a Kleptocratic Charter, there's a good chance that by the time the dust settles, we'll have a brand-new Constitution, unleashing the untrammeled power of the economic elites -- and paying off the right-wing ideologues with all the crackpot ideology they want.

As the surging right-wing forces of darkness take on more and more issues about which Americans are even more than usually uninformed and misinformed (which is to conjure a truly staggering level of uninformedness and misinformation), we're left to wonder, for example, if there's more than the thinnest layer of protection for the rights of women achieved through decades of legal trench warfare. The hard-core Right really believes that women should live their lives barefoot and pregnant, and the gutless minions of the political fake-"center" seem set to stand idly by or actually facilitate this.

Of course the most immediate judicial issue is the fate of the health care package (sorry, I still refuse to call it health care "reform"). Most of us on the Left aren't much happier about that package than the right-wing crazies, but naturally for opposite reasons: that it's more than anything a massive giveaway of federal money and otherwise-uninsured Americans' own, with hardly any of the real reforms that might have both rationalized our health care system and begun to control skyrocketing costs. But given the state of the federal courts, there's a real possibility that the bogus constitutional challenges the Right is pressing could wind up rewriting broad swaths of settled constitutional understanding.

What's shocking about the two federal judges who so far have ruled turned thumbs-down on the law isn't that they were appointed by Republican presidents but that their rulings seem to be the work of legal and constitutional ignoramuses.

Regarding the more recent, more sweeping and egregious decision by Florida Judge Roger Vinson, on the Center for American Progress website Neera Tanden, Ian Millhiser, and Tony Carrk have produced an "interactive assessment":

Judge Roger Vinson's decision striking down the Affordable Care Act is wrong on so many counts that it’s hard to begin counting. Nonetheless, we did.

In the accompanying interactive examination of Vinson’s opinion, we show how he effectively writes an entire provision of the Constitution out of the document. How he butchers history, thumbs his nose at binding Supreme Court precedent, and relies on a constitutional theory that George Washington would find shocking. As we explain, even conservative legal scholars have questioned Vinson’s reasoning. And he wholly misunderstands health care and how it works.

We also explain that one section of Vinson's opinion was lifted from a brief filed by an organization that has been labeled a hate group. And when Vinson somehow concludes that the Boston Tea Party renders the Affordable Care Act unconstitutional, we take apart that argument, too.

We have culled through all 78 pages of Vinson's deeply ideological opinion, highlighted all the errors we can find, and explained why Vinson was mistaken in each case.

Take a deep dive into this interactive graphic. You’ll discover Vinson’s opinion is such an outlier that it will not be taken seriously by higher courts. And if you find any errors that we missed please email us.

Perhaps even more decisively, in an article in the New York Review of Books, "Is Health Care Reform Unconstitutional?," written while Judge Vinson's decision was still being awaited, Georgetown Law Prof. David Cole simply tears Virginia Judge Henry Hudson's opinion, which unlike Judge Vinson's sweeping thumbs-down knocked down only the individual mandate to shreds, reaching the constitutional conclusion: "In short, Congress had ample authority to enact the individual mandate. Absent a return to a constitutional jurisprudence that has been rejected for more than seventy years, and, even more radically, an upending of Chief Justice Marshall’s long-accepted view of the Necessary and Proper Clause, the individual mandate is plainly constitutional." (For the record, Professor Cole indicates in his original text that Judge Vinson was expected to side with Judge Hudson, and in a footnote added online takes note of its arrival.)

Professor Cole goes further:

Near the end of his decision, Judge Hudson writes: "At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage -- it's about an individual's right to choose to participate." Virginia Attorney General Ken Cuccinelli, who brought the suit, echoed that point the day the decision came down, insisting that "this lawsuit is not about health care. It's about liberty." But that is exactly what the case is not about. A decision that Congress lacks the power to enact the individual mandate says nothing about individual rights or liberty. It speaks only to whether the power to require citizens to participate in health insurance, a power that states indisputably hold, also extends to the federal government. The framers sought to give Congress the power to address problems of national or "interstate" scope, problems that could not adequately be left to the states. The national health insurance crisis is precisely such a problem. The legal question in the case is about which governmental entities have the power to regulate; not whether individuals have a liberty or right to refuse to purchase health care insurance altogether.

But Judge Hudson and Ken Cuccinelli's misstatements are nonetheless telling. Opposition to health care reform is ultimately not rooted in a conception of state versus federal power. It's founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem. While Judge Hudson's reliance on a distinction between activity and inactivity makes little sense from the standpoint of federal versus state power, it intuitively appeals to the libertarian's desire to be left alone. But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one's health care to others. So rather than directly claim such a right, the law's opponents resort to states' rights.

In this respect, Judge Hudson and the Virginia attorney-general are situated squarely within a tradition -- but it's an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked states' rights not because they cared about the rights of states, but as an instrumental legal cover for what they really sought to defend -- the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Here, too, opponents of health care reform are not really seeking to vindicate the power of states to regulate health care. Rather, they are counting on the fact that if they succeed with this legal gambit, the powerful interests arrayed against health care reform -- the insurance industry, doctors, and drug companies -- will easily overwhelm any efforts at meaningful reform in most states. Unless the Supreme Court is willing to rewrite hundreds of years of jurisprudence, however, they will not succeed.

The only thing is, what reason is there to think that the successively higher levels of the federal judiciary, on up to the highest, would have any hesitation about rewriting hundreds of years of jurisprudence?

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