High-ish Court sez Kristian kouncil-meeting prayers are OK 'kause they're not Kristian, they're, uh, ceremonial

Slow Anthony, stop! We're laughing so hard, we're gonna bust a gut! We're sure gonna miss the legal-comedy stylings of the High-ish Court's clown prince when he's gone.

"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers."

-- from Justice "Slow Anthony" Kennedy's soon-to-be-
released debut comedy album, Slow Anthony Live!

by Ken

Someday we're going to miss the comedy judicial stylings of "Slow Anthony" Kennedy, the clown prince of the U.S. Supreme Court. That is, once we have the opportunity to miss the Slowmaster, that is. Like when he decides he's had enough fun on the High-ish Court and decides to strike out into the bottom-most rung of the comedy-club circuit, possibly soon to be seen at a bowling alley near you. The great thing for "Slow A" is that he won't have to write material; he can just shoot the shit about his approach to deciding constitutional issues.

(When that day comes, we'll probably also miss Slow Anthony because what comes after him is likely to be worse.)

Today Slow Anthony announced to an unexpecting world that Kristian prayers before local council meetings are A-OK -- because they're not Christian, they're just pieces of American culture. Okay, as comedy it's pretty lame -- like a joke recycled from Friends With Better Lives or Bad Teacher. But as jurisprudence, well, it sucks hellaciously, but then, the Roberts Court, like the late-era Rehnquist Court before it, sets impossibly low standards for jurisprudence.

The issue before the Court in Town of Greece v. Galloway was the practice by the town council of Greece, NY (near Syracuse), of beginning meetings with avowedly and almost exclusively Christian prayers. Two local non-Christian residents objected and sued; the town was upheld at the town level but then overturned by a panel of the 2nd Circuit U.S. Court of Appeals, which is now overturned by the High-ish Court. As AP's anonymous scribe explains it:

From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation. In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha'i congregation. Galloway and Stephens are described in their court filings as a Jew and an atheist.

A town employee each month selected clerics or lay people by using a local published guide of churches. The guide did not include non-Christian denominations, however. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.

The manner of exclusion of non-Christian invokers figured in the, er, thinking of the Court majority, and so did the fact that non-Christians were not being "coerced" -- although the Bobbsey Twins of the ultra-right-wing Court majority, Justices Clarence Thomas and Nino Scalia, didn't buy into the non-coercion business, insisting that a little koercion is fine as long as it's Kristian, and not legally imposed.

As the AP's Mark Sherman put it:

Writing for the court on Monday, Justice Anthony Kennedy said that forcing clergy to scrub the prayers of references to Jesus Christ and other sectarian religious figures would turn officials into censors. Instead, Kennedy said, the prayers should be seen as ceremonial and in keeping with the nation's traditions.

"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers," Kennedy said.

Justice Elena Kagan, writing for the court's four liberal justices, said, "I respectfully dissent from the court's opinion because I think the Town of Greece's prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian."

The most comical aspect of Slow Anthony's legal-comedy routine is this business of Christian prayers being jake because they're part of the culture -- just ceremonial, after all, but fine because the people are mostly Christians anyway. Any chance that this "ceremonial" nonsense might be taken seriously by right-wingers dancing in the streets today is given the lie by this comment reported by the AP's Sherman: "Senior counsel David Cortman of the Alliance Defense Freedom, which represented the town, applauded the court for affirming 'that Americans are free to pray.' " Of course neither Davy C nor any of the other Americans for Religious Imposition is likely to be able to cite a single instance in which any Christian ever suffered so much as the feeblest effort to impinge on his/her right to pray. Perhaps because American Kristians are konstitutionally liars and thugs as well as fascists, they equate "the right to pray" with "the right to force their prayers on any-goddamaned-body they fucking feel like."

You know the old saying: "Give the Krap Kristians an inch, and they'll stomp all over you for a mile."

There's good news, though. From Mark Sherman's AP account:

Ayesha Khan, legal director for Americans United for Separation of Church and State, said the court disregarded the interests of religious minorities and nonbelievers. But Khan said she saw a "silver lining" in the outcome because the court rejected a more sweeping ruling that would have made it even harder to prove a violation of the Constitution.

#

Why is everyone just jumping ugly on Justice Nino "Loop-de-loop" Scalia for his big booboo? After all, Justice Clarence AGREED with him

Maybe it comes down to this: Who's the bigger dope, the clown who makes the colossal legal booboo (left) or the one who says, "That goes for me too" (right)?

by Ken

I'm grateful to Daily Kos's Pollwatcher for calling my attention to the story, but I have to take exception with the headline "Uh-Oh, Scalia Screws Up Royally. Time To Retire." Oh, I'm not disagreeing with the part about Justice Nino screwing up royally. That's true and hilarious. I just don't see why he should think about retiring. Just because of the suggestion that he's lost his marbles?

What marbles? He once had marbles?

In between gnashing and cursing, Justice Nino is probably expostulating:

What the eff? So I screwed up the case citation, and maybe got my ruling backwards, or maybe I got my other ruling backwards, or -- who knows? -- maybe both. But it's not as if this Supreme Court-ing is about petty stuff like laws and facts. It's about your gut, knowing in your gut what a crack-addled right-wing mental defective would say about a particular case. The whole time I've been on the Court -- what is it now, 60 years? 70 years? -- I've never let laws and facts get in the way of my gut. It's all a matter of knowing which way your knee jerks. Every time I've voted or written an opinion, I've pulled it all out of my stinking butt.

In case you're coming in late, this is all about a ruling Howie wrote about yesterday ("Koch Brothers' War Against America Sufferes A Setback In The Supreme Court"). Here's how TPM's Sahil Kapur explains, in "Justice Scalia Makes Epic Blunder In Supreme Court Opinion":

It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

"Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted," Farber wrote on the environmental law and policy blog Legal Planet.

For cost considerations, against cost considerations, clean air, schmutzy air -- who can keep track of it all? The important thing is, when Justice Loop-de-loop is writing one of his stinging dissents, that everyone know he's mad as hell and he's not going to put up with it anymore. And always we make sure that the American Corporate Elites are having their private parts licked to a faretheewell.

Okay, you're maybe saying, but we wanna hear Justice Loop-de-loop dumped on some more. Fair enough. He's more of what Sahil Kapur quotes that Berkeley law dude Dan Farber saying:

This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it's a cringeworthy blunder.

Then there's this fellow Doug Kendall, president of the Constitutional Accountability Center, which has all the earmarks of some group of commie-socialist legal troublemakers. Sahil has this clown saying:

It is a mind-blowing misstatement of a basic fact of the American Trucking Association ruling which Justice Scalia himself wrote. And it's not just a stray passage -- it's the basis for an entire section of the dissent. It is very unusual to see a passage that so clearly misstates the fundamental facts of a prior ruling, especially one written by the justice himself.

Oh, misstates-shmistates! The important point is, Justice Loop-de-loop thinks those other six justices are sniveling dopes. Is that not perfectly clear? Does anything else matter?

Well, maybe just a bit, for the official record. Later yesterday morning TPM added an update:

As of Wednesday morning, the Supreme Court has corrected Scalia's opinion. The relevant passage now excludes his erroneous mention of the EPA and replaces the header with a new one that drops an EPA reference.

The new passage reads as follows: "This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS."

The old header was, "Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority." The new one reads, "Our Precedent."

The case is EPA v. Homer City Generation. The original opinion -- before the corrections -- is available below.

EPA v. Homer

But the other six justices -- remember, that includes Chief Justice Smirkin' John Roberts (Sammy "The Hammer" Alito played dead on this case) -- are still sniveling dopes. So there.

#

Democratic Senators Who Voted To Confirm Fascists To The Supreme Court

Justice Ginsburg, who, like Bernie Sanders and Chuck Schumer, went to my high school, James Madison in Brooklyn, knows what she's talking about when she says the decision by the 5 right-wing Republican activists on the Supreme Court, each of whom is also a corporate whore, produced an anti-democratic ruling stinking of "hubris." She pointed out how illogical their nakedly partisan arguments were:

In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime.

Our fellow Madison alumnus, Bernie Sanders, was even more to the point: "The Supreme Court has turned back the clock on equality in America by striking down a key provision of the Voting Rights Act. The landmark civil rights law that Congress passed almost five decades ago, and reauthorized with overwhelming bipartisan support only seven years ago, has been an important tool to protect voters in places with a history of discrimination. The law is as necessary today as it was in the era of Jim Crow laws. We must act immediately to rewrite this vital law." I think Republicans have a different agenda than Bernie. Speaking for all the racists and bigots who dominate the GOP, neo-fascist Congressman Jeff Duncan (R-SC) was positively giddy with the decision:

Today’s Supreme Court’s ruling invalidating the preclearance requirements contained within the Voting Rights Act is a win for fairness, South Carolina, and the rule of law. The preclearance requirement forced South Carolina to spend millions of dollars to defend a photo identification requirement for voting that had already been ruled constitutional by the US Supreme Court. The court’s ruling will hopefully end the practice of treating states differently and recognizes that we live in 2013, not the 1960's.

Michael Keegan, President of People for the American Way called the Supreme Court riling a "terrible blow to the Voting Rights Act."

As the Supreme Court swerves further to the right, our constitutional liberties continue to take a beating. Today, the Supreme Court seriously undermined an important piece of the premier civil rights legislation of the past century-- legislation that civil rights heroes gave their lives for. This decision sends a chilling message to all those Americans who continue to face politically-motivated hurdles on their way to the ballot box.

In his confirmation hearings, Chief Justice John Roberts pledged to behave like an umpire-- just calling balls and strikes, and staying out of the game. Today that umpire upended decades of civil rights law. His decision substitutes his own opinions for the findings of America’s elected representatives in Congress, who found numerous cases of ongoing, racially-based political gerrymandering and trickery. Moreover, it does so in an area in which the Constitution specifically and intentionally gives Congress wide discretion. Reauthorization of the Voting Rights Act received near unanimous support in both houses of Congress just a few years ago, and was signed into law by President Bush. Today’s decision is a blatantly inappropriate exercise in legislating from the bench. Conservatives who have spent decades decrying judicial activism should take note.

In two separate cases yesterday, Justice Ginsburg called on Congress to fix the damage done by decisions handed down by our nation’s highest court. That need is even greater today. Congress should move quickly to enact a coverage formula under Section 4 to protect voters whose right to participate in our democracy was badly undermined today. The American people deserve no less.

So how did these 5 corporate whores and GOP political hacks wind up on the Supreme Court? Who's to blame? Glad you asked, especially in light of a tweet from Matt Canter, Deputy Executive Director for the Democratic Senatorial Campaign Committee:

These are the 5 right-wing extremists on the Court with some info about how each got there, chronologically. First came Reagan's second pick, Antonin Scalia, who got the job when Reagan elevated former GOP Arizona voter fraud operative William Rehnquist to be Chief Justice. Although Scalia is probably the most extreme ideological rightist appointed to the court since Jackson appointed Roger Taney in 1836, he faced no opposition from the Judiciary Committee and was unanimously confirmed by the Senate. Among the Democrats voting for him were Joe Biden, Carl Levin, Ted Kennedy, Max Baucus, and Pat Leahy. Take a bow, guys.

Reagan's next appointment was Anthony Kennedy, who had previously drafted California Governor Reagan's pro-corporate and very reactionary tax policies. He was Reagan's third choice after the Senate rejected Bork (who almost made Scalia seem mainstreamish) and Douglas Ginsburg, who withdrew after it came out he was a pothead. He was confirmed 97-0 in 1988. The same bunch of Democrats still kicking around today who voted for Scalia-- Biden, Levin, Baucus, and Leahy-- also voted for Kennedy.

Then we get Clarence Thomas, George H.W. Bush's second appointment-- and, ironically, the second African-American to serve on the Court. (Bush's first appointment was David Souter who has already retired.) Because Thomas was so clearly unqualified in every way, this was a very contentious confirmation process. Thomas' career has always been serving as a professional Uncle Tom for the GOP and he's easily the least qualified justice nominated to the Court in the 20th Century, Jeffrey Toobin remarking that he was the only "plausible" African American the GOP could come up with to replace Thurgood Marshall, who would be a lockstep corporate whore and right-wing ideologue. He hasn't disappointed. The American Bar Association was astounded about his unsuitability for the appointment. The Senate Judiciary Committee voted 7-7 and sent his nomination to the full Senate without a recommendation. He was confirmed by a 52-48 vote on October 15, 1991, the narrowest margin for approval in more than a century. All the normal Democrats (plus mainstream Republicans Bob Packwood and Jim Jeffords) voted against him. But 11 conservative Democrats, mostly from the South, joined the Republicans to confirm him. None of the Democrats are still in the Senate except Dick Shelby (AL), who soon after switched parties and joined the GOP.

The final two monsters on the Court, Roberts and Alito, were nominated by George Bush. Bush nominated Roberts to take over from Sandra Day O'Connor when she retired in 2005, but just as the process was getting underway, Rehnquist-- who was already horribly senile-- finally died. Bush realized they could slip Roberts-- a total Chamber of Commerce kind of guy-- in as Chief Justice. With Ted Kennedy, Richard Durbin, Chuck Schumer, Dianne Feinstein and Joe Biden voting against him, the Judiciary Committee approved the nomination 13-5. The following week he was confirmed by the Senate 78-22, all the Republicans and exactly half the Democrats voting for him. Democrats still serving in the Senate today who voted to confirm Roberts:

• Max Baucus (MT)
• Tom Carper (DE)
• Tim Johnson (SD)
• Mary Landrieu (LA)
• Patrick Leahy (VT)
• Carl Levin (MI)
• Patty Murray (WA)
• Bill Nelson (FL)
• Mark Pryor (AR)
• Jay Rockefeller (WV)
• Ron Wyden (OR)

Do you think they would vote for him again today? I might add that among the other Democrats who voted to confirm Roberts were Russ Feingold, Joe Lieberman (before he was kicked out of the party), and Blanche Lincoln. Among the 22 senators voting NO were Barack Obama, John Kerry and Hillary Clinton.

And the final piece of shit in a judicial robe, also nominated by Bush-- after his girlfriend Harriet Miers was laughed out of Washington by Democrats and Republicans-- was Sam Alito, another Big Business hack. Bush nominated him for the O'Connor seat in November, 2005 and he was approved by the Judiciary Committee on a 10-8 party line vote. John Kerry decided to filibuster the nomination because Alito was so extreme. The filibuster was shut down in a 72-25 vote, paving the way for confirmation. The cloture vote was the one that counted and the Democrats still serving today who crossed the aisle and voted with the GOP to end the filibuster were:

• Max Baucus (MT)
• Maria Cantwell (WA)
• Tom Carper (DE)
• Tim Johnson (SD)
• Mary Landrieu (LA)
• Bill Nelson (FL)
• Mark Pryor (AR)
• Jay Rockefeller (WV)

This week Alito was caught making juvenile faces while women members of the Court read their opinions. Among the Democrats backing the filibuster were Obama, Feingold, Clinton and-- finally-- Leahy.

Bye-bye, Justice Nino -- write if you get work

Oh no, does this mean the end for the Supreme Court's Sundance and Butch, Justices Clarence and Nino? Sure, they're just good friends, and it's not as if they were about to get married or anything -- were they? But still, High Court Constitution-shredding just won't be the same without them doing the heavy lifting together.

by Ken

The New Yorker's Andy Borowitz (gosh, that sounds odd, doesn't it?) has been keeping close tabs on Supreme Court Justice Nino Scalia during this trying week. (See his report earlier this week, "Scalia Furious He Has to Hear About Gay Couples All Week.") So it was hardly suprising this afternoon when he was the one to break this surprising news:

Bitter Scalia Leaves U.S.

Posted by Andy Borowitz
March 28, 2013

WASHINGTON (The Borowitz Report) -- Justice Antonin Scalia dropped a bombshell on the Supreme Court today, announcing his decision to resign from the Court "effective immediately" and leave the United States forever.

Calling this week "by far the worst week of my life," Justice Scalia lashed out at his fellow-Justices and the nation, saying, "I don't want to live in a sick, sick country that thinks the way this country apparently thinks."

Justice Scalia said that he had considered fleeing to Canada, "but they not only have gay marriage but also national health care, which is almost as evil."

He said the fact that nations around the world recognizing same-sex marriage are "falling like deviant dominoes" would not deter him from leaving the United States: "There are plenty of other countries that still feel the way I do. I'll move to Iran if I have to."

Throwing off his robe in a dramatic gesture, Justice Scalia reserved his harshest parting shot for his fellow-Justices, screaming, "Damn you! Damn each and every one of you to hell! You call yourself judges? That's a good one. You're nothing but animals!"

Breathing heavily after his tirade, he turned to Justice Clarence Thomas and said, "Except you, Clarence. Are you coming with me?"

Justice Thomas said nothing in reply.

Ah yes, Justice Clarence at his most eloquent, saying what he says best, nothing.

Now as we all know, everything that's printed on the Internet is true, and so if Justice Nino doesn't have his things all packed, I trust some packers are being sent over to his place from the Supreme Court shipping department with lots of cartons, for shipment to wherever the hell he's decided he's going, by whatever conveyance he's chosen to get there.

Iran certainly works for me. Why, our Nino would fit right in as an ayatollah. Isn't that what he's been in all but name for decades now? (I'd love to be able to confirm those reports that many of the most backward, authoritarian of the Iranian ayatollahs have Justice Nino's picture over their breakfast tables. If I had Photoshop skills, I'd love to plaster an ayatollah-worthy beard on Nino and slap him into a jumbo-size ayatollah outfit.) Grand Ayatollah Khamenei better watch out. That looks like the kind of job that would appeal to Nino -- where your word is final, and people who say "boo" can be, you know, dealt with.

We'll sure miss you, Nino. But first, you have to get the hell out. Bye-bye! As Bob and Ray used to say, "Write if you get work."

Bob Engelhart, Hartford Courant (click to enlarge)

#

Did Justice Thomas shed some light on why he may have been such an unappealing hire?

In court or out, Justice Thomas enjoys a good laugh: It's possible that, as the justice has always insisted, disdain for beneficiaries of affirmative action made him such a difficult hire coming out of Yale Law School. Or it's possible that there were other factors.

by Ken

This is why it's so valuable to have media surrogates who patrol their beats.

I expect that, like me, you heard the story of Supreme Court Justice Clarence Thomas breaking his famous open-court silence the other day, allowing his voice to be heard, albeit briefly, for the first time since 2006. And I'll bet that in the accounts you heard or read, there was just some puzzling reference to his making a joke and then reverting to silence.

Nothing to be gleaned from that, right?

Well, not if you're Jeffrey Toobin. The Supreme Court is emphatically part of the New Yorker legal-affairs correspondent's beat. And although, as he tells us in the newyorker.com blogpost "Clarence Thomas Speaks, Finally," he wasn't in court that day, he didn't let the matter rest there.

First Jeffrey quotes the account by the NYT's Adam Liptak:

Justice Antonin Scalia noted that [the lawyer in question] had graduated from Yale Law School, which is, by some measures, the best in the nation. It is also Justice Thomas’s alma mater.

Justice Thomas leaned into his microphone, and in the midst of a great deal of cross talk among the justices, cracked a joke. Or so it seemed to people in the courtroom.

Then Jeffrey goes to the transcript, which he says is "ambiguous." However, "the gist . . . appears to be that graduation from Yale is a sign of incompetence." And he tells us, "If that's what Thomas said -- and I bet it was -- the wisecrack comes with a long history."

For many years, Thomas viewed Yale with undisguised hostility. The gist of his complaint was that he was admitted under an affirmative-action program -- and, as a result, suffered from a stigma that tainted his judicial career. "I couldn't get a job out of Yale Law School," he told an interviewer in 1998, "That's how much good it did me. I think I'll send the degree back." As I noted in "The Nine," Thomas had a "Yale Sucks" bumper sticker on the mantle in his chambers for a time.

Thomas and Yale repaired their relationship in recent years. In "The Oath," I reported that Thomas returned to Yale for the first time in decades in December, 2011, where he had congenial meetings with students and faculty. In fact, on the night of June 25, 2012, a few hours after the Court's decision on Obamacare was announced, Thomas met in Washington with a group of Yale Law School alumni. The rift appeared to be over.

But, as this latest remark showed, Thomas's anger at Yale is not gone. Thomas's supporters always protest when the Justice is described as angry and bitter and still resentful of his treatment during his confirmation hearings, almost twenty-two years ago. But Thomas's true feelings about his villains in that struggle -- including Yale, Democrats, and the news media -- always come out, as they did on Monday.

You have to wonder whether disdain for affirmative action has really been the bane of Justice Thomas's career, or whether it has played any significant role at all. Combine good old-fashioned racism, which of course the justice pooh-poohs, with a spectacularly revolting personality and you've got a package that could easily intimidate the strongest-stomached hiring apparatchik in the Big Law establishment.

I'm not sure what's supposed to be funny about the little witticism that apparently induced Justice Thomas to break his historic silence, about graduation from Yale being a sign of incompetence. It would be no wittier, but also no less witty, to suggest that graduation from Yale doesn't rule out incompetence, and I think we can all think, off the top of our heads, of a couple of contemporary cases in point drawn from the very highest ranks of our government.

Is it really necessary to point out how many vastly more capable and deserving lawyers have had vastly less rewarding careers than the vastly overfortunate Justice T?

#

The Noah Diaries 2011 (2): "If ballots don't work, bullets will"

Sarah Palin shoots from the hip, Keith Olbermann gets the boot,
Bernie Sanders challenges the oligarchy, and more


by Noah

1/14/11 –- Utah Sen. Mike Lee says child labor laws are unconstitutional

Hey, isn’t everything that Repugs don’t like? Health care? Unconstitutional! Equal pay for equal work? Unconstitutional! Voting rights? Unconstitutional! Flat tire? Unconstitutional! Upset tummy? Unconstitutional! Bad weather? Unconstitutional! Gay? You bet!


1/17/11 -- FOX goon Sarah Palin chose MLK Day of all days to defend her insanity

Yesterday's installment of the Noah Diaries included coverage of that "Tragic Date in Tucson" (1/8/201). -- Ed.

She centered her defense around the term “blood libel," offered an explanation of her constant use of the phrase “take up arms” and then ended it with her standard “Don’t retreat, reload” -- on MLK Day! Her tiny brain can’t fathom that she is her own worst enemy, not the media she refers to as “lamestream,” like some 14-year-old in a straitjacket. Words matter. You have to wonder if she even knows who Martin Luther King was and what happened to him.

All of this after what happened in Arizona when a disturbed nutbag who liked to rant about the Constitution and our evil government lost his moorings completely. Palin had even placed crosshairs right on Rep. Gabby Giffords’ district on her famous chart. There’s no doubt that he had taken encouragement from public figures that rant publicly. Reminds me of Newt Gingrich talking about bringing down big government, blowing it up, whatever. He even had Rep. Helen Chenoworth acting as a liaison with militia groups in the Northwest. Timothy McVeigh was listening. They even blew up a day-care center. Day care -- that’s communism, you know. Polls show that 70% of Repugs like Palin. What’s that say about Repugs? You decide.


1/21/11 -- The Clampdown: Comcast cans Keith Olbermann

This is the Corporatocracy at work, Obama included. We know what they think of progressives in the White House, and Rahm and Gibbs leaving hasn’t changed a thing. None of the corporate limo class wants anything to do with progressive notions. To them, we are children best unseen and unheard. We get in the way of their piracy and wealth redistribution.

Let’s not forget the corporate DNA. The clowns that bent over for their new Comcast masters also think that having a sitcom about outsourcing is funny. Decades ago they dumped Star Trek when the show confronted meaningful issues such as racial politics head-on. They thought the show was a loser that would never amount to anything. Corporate suits are corporate suits. Decades come and decades go, but suits are always the same mindless little weasels. Sorry, weasels. Oh, and whatever happened to Ed Schultz’s “Psycho Talk” segment? Remember when Keith had to suspend “Worst Person in the World” when the Comcast merger talks heated up? The disappearance of “Psycho Talk” is just more of that same same old same old, no matter how many times and how many ways the suits deny it. It’s that "give me that good old corporate blandness" religion raising its head, as it always does.

12 months later: Keith is on a new network and Ed has "Psycho Talk" back. The righties bathe in their smugness about Keith being gone. They are incapable of thinking that a budding new network has its first star talent. They laughed at Howard Stern and Sirius once too. The power of truth? The power of speaking out? People respond to edgy, not blandness. Will the suits ever get it? Doubtful. They prance around all wrapped up in themselves and think they get it, just like the Washington idiots that infest our government. They are the last to know anything. Many of them never see it until it runs them over like a truck.


1/24/11 -- From Lawrence O’Donnell’s show on MSNBC:

Two conservative Supreme Court justices made headlines today that they might not be happy with. Justice Clarence Thomas amended 20 years of disclosure forms, after a liberal watchdog group questioned the omission of his wife’s place of employment. He said it was inadvertently omitted.

Meanwhile, Supreme Court Justice Antonin Scalia kicked off Tea Party Caucus Chairwoman Michele Bachmann’s Conservative Constitutional Seminars as a guest lecturer.

20 years of disclosure forms? 20 years? I guess he forgot. What does his wife do? She dedicates her professional life to defeating health care reform.

As for Scalia, I feel great about having a “Supreme” Court justice from the Tea Party. Does he make his own signs? Not even a pretense of impartiality --not that there was back in December 2000 either. Next time a righty throws the words “activist judges” at you, mention these two craploads.


1/24/11 -– "This country is moving in the direction of an oligarchy"

While we’re on the subject on the “Supreme” Court, how’s this for a Quote of the Year? It’s Sen. Bernie Sanders to Lawrence O’Donnell. It sizes up the year and the predicament that the “Supreme” Court has continued to put us in since they anointed George Dubya Bush:

What I worry about, Larry, deep down In my heart, is that this country is moving in the direction of an oligarchy, where a relatively few people, incredibly wealthy people on the top, today have more money than they’ve ever had before. And with that money, they are exercising incredible power as a result of Citizens United on our political system. They can make huge amounts of money in campaign contributions without disclosure, and they’re also having, obviously, a great impact on our economy as a result of increased concentration of ownership.

With this comes the report that Karl Rove is getting most of his huge stacks of cash to spend on elections from just four multi-billionaires. Gives new force to the old “I’m gonna buy me a senator” kind of thing.


1/25/11 -- Watching Republican commentators dig so deep to find something negative to say about President Obama’s State of the Union speech . . .

. . . would be hilarious if it wasn’t so sad. Watching people like Hannity and Sarah the Quitter can be infuriating, or, if you have compassion, it can be very sad in the way that watching crippled deer along the highway or a crippled child is sad. There are big differences, of course, not the least of which is that accident victims and crippled children are usually not to blame for their own afflictions.

Things get a little cloudier if we think of watching discussions on FOX and, to only a somewhat lesser extent CNN, as dropping in on a mental institution to visit a relative or friend who has gone off the deep end and is no longer able to function in normal society. In this way Rupert Murdoch has proven himself a candidate for sainthood by providing jobs for people whose cheese has fallen off the cracker, and, providing a channel for those who are not yet institutionalized to watch. Just as Romper Room was great for kids, Glenn Beck fills a need for crazy people, while giving them hope that if he can get a TV show of his own and make millions presenting daily gibberish, maybe someday they can too. There is nothing, nada normal about FOX society.

As time goes on in the Obama era, the wackadoodle set has tried everything, and still Obama’s ratings are no lower than those of his predecessors. Hannity even whined and bitched about the White House Super Bowl menu. It’s pretty frustrating to them, and you can see it. No medication exists that can help these critters. Soon, they will be grasping at straws so badly that I expect we will see an in-depth discussion that begins with the words “I didn’t like his tie.”


1/25/11 -- Quote of the Year nominee

This one comes from Joyce Kaufman, chief of staff to Rep. Mark West (R-FL):

I am convinced that the most important things the Founding Fathers did to insure my First Amendment rights was to give me a Second Amendment.

And if ballots don’t work, bullets will.

Now that speaks volumes about the sensitivity offered by Republicans!

§

History in the making:
Selections from THE NOAH DIARIES 2011

Yesterday: (1) Even Tolstoy would surely admit that 2011 wasn't the best of times: Gov't cutbacks save lives!, Speaker Boehner, tragic day in Tucson, Tea Party racism, and more (1/3-13/11)
Tomorrow: (3) "We could tell by looking at her that she was not originally from this country." Plus: Walmart eyes NYC, Keith O back on the air, "civics literacy test"?, the Civil War rages, the Great Sharia panic, and more (2/3-16/11)

FOR A COMPLETE LISTING OF THE SERIES, CLICK HERE

And don't forget 2010's Year in Review series and 2009's "12 Days of Christmas Scorn"!

#

Will Newt-the-historian's marshals be perp-walking Justices Scalia and Thomas anytime soon?

From 1971 to 1974, back when the current University of West Georgia was still West Georgia College, Newt Gingrich managed to secure employment on its faculty, first in history, then in geography. Accounts differ as to whether the assistant professor couldn't or didn't try to get tenure, but it wasn't long before he skedaddled. So much for the career of "history professor" Gingrich.

by Ken

Our friend Zappatero makes a good case that Supreme Court Justices Nino Scalia and Clarence Thomas should be carted off in handcuffs to a federal pen named for would-be president Newt Gingrich. The only flaw I can see in his argument is that it presupposes some sort of rudimentary logic and/or consistency in the fables right-wing pols tell -- I mean, the "policies" they enunciate. Since as we know making up even the crackpottiest nonsense is rewarded rather than punished as long as it adheres to doctrinal right-wing delusions (DRWDs), there's hardly ever any price to pay for even the most glaring inconsistences, again provided they don't run afoul of DRWDs.

How else do you explain this illusion that Newt has managed to maintain of being a "history professor." (Actually, what I found when I tried to pin down his academic credentials was this, in the Wikipedia article on him: "In 1970, Gingrich joined the history department at West Georgia College as an assistant professor. In 1974 he moved to the geography department and was instrumental in establishing an interdisciplinary environmental studies program. Denied tenure, he left the college in 1978," citing a 2001 Time magazine piece by Nicholas Lemann. Beyond that the only academic "credential" I see is that "he is an honorary Distinguished Visiting Scholar and Professor at the National Defense University.") Anyone who has listened to or read Perfessor Newt mangle even the most rudimentary points of history knows that his exposure to the subject consists entirely of random cherry-picking for factoids or outright fantasies that can be woven into his grand hodgepodges of ideologically driven lies.

Anyway, to get back to Zappatero's case, he wrote yesterday in "BREAKING: Newt says arrest Scalia, Thomas," on Square State: "So Newt Gingrich, in his bottomless pit of anti-democratic and anti-labor ideas came up with this one:"

The former House Speaker held a half-hour phone call on Saturday during which he pledged to abolish courts how Kenyan and anti-colonial of him] and eliminated activist judges he believed were either outside the mainstream or infringing too deeply on the commander in chief's authority.

On Sunday, he followed that up by saying he would be willing to arrest a judge who he thought was out of line.

"If you had to," he said on CBS's "Face the Nation" when asked if he would send a Capitol Hill police officer to round up a judge, "or you would instruct the Justice Department to send the U.S. Marshal."

Zap then quotes relevant portions of Article I of the Constitution to support the proposition that Justices Thomas and Scalia, "the only ones that still serve from the Court that interrupted the 2000 Presidential election with a misguided, political, anti-Constitutional, and anti-Democratic decision," are therefore appropriate objects of Newt-the-historian's constitutional wrath. He concludes:

[T]he logic is airtight here: if Newt was the idea man everyone says he is, then he will hold to this idea and enunciate the policies it would entail. He isn't; he won't.

If he was principled, and held to (any of) his wildly varying principles for more than month then he would back up his idea with the most obvious example of activist judges in the last 25 years and call for the the arrest of Scalia and Thomas. He isn't. He won't.

He's an idea man full of dumb ideas. Anyone who thinks he'd be a good president is a fool. Anyone who thinks he has principles should ask him to follow up just one more time and tell us which judges he'd arrest. That would show everyone just how anti-democratic and anti-Constitutional the Newt is. And it would confirm that when Republicans are calling Democrats names and accusing them of something, it's usually the Republicans who are doing it. And the fair and balanced media that's reporting it.

The enduring mystery is how it happens, after all the time he's spent in the public eye, being exposed repeatedly as a fantasist and self-promoting crook, that anyone pays any attention at all to this heap of toxic sludge.

#

How 'bout that Supreme Court of ours?

"Republicans are silent on Thomas for a simple reason. He’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system."

-- CT Rep. Chris Murphy, in an interview with ThinkProgress

by Ken

At the moment, thanks to Sunday's NYT exposé:about his involvement in a Georgia development deal, Justice Clarence Thomas's ethical problems are in the news, but they certainly aren't new. Only this past February 4, Howie was asking, "When Do Impeachment Proceedings Get Underway For Clarence Thomas?," while I wrote "In re. Respect for the Law vs. Thomas and Scalia: Time for another round of our beloved game If the Shoe Was on the Other Foot.'"

Yesterday on ThinkProgress's Justice blog, Ian Millhiser had an exclusive report:

EXCLUSIVE: Rep. Murphy Says Thomas’ Actions Call Into Question Whether He ‘Can Continue To Serve As A Justice’

By Ian Millhiser on Jun 24, 2011 at 9:40 am

In an exclusive interview with ThinkProgress, Rep. Chris Murphy (D-CT) -- the lead sponsor of a bill which would strip Supreme Court justices of their immunity from a code of ethical conduct that applies to other federal judges -- suggests that an investigation may be necessary to determine whether Justice Clarence Thomas’ many ethics scandals rise to the level where Thomas is no longer fit to serve on the nation’s highest Court:

QUESTION: Do you think what Thomas has done is as serious as what forced [disgraced former Supreme Court Justice Abe] Fortas off the bench?

MURPHY: I think our problem is we don’t know the full extent of Justice Thomas’ connections to [leading GOP donor] Harlan Crow, or, frankly, to a further network of right-wing funders. What he’s done is incredibly serious. I think, at the very least, his actions should disqualify him from sitting on any cases in which Crow-affiliated organizations are parties to or have attempted to influence [the Court]. But this is starting to rise to the level where there should start to be some real investigations as to whether Clarence Thomas can continue to serve as a justice on the Supreme Court.

Watch it:


Justice Thomas has sat on at least 11 cases where a Harlan Crow-affiliated group filed a brief — adopting the group’s preferred outcome in all but one case. Moreover, Thomas has yet to explain the full extent of his connections to Crow, despite news reports that Crow lavished gifts and other expensive favors on Thomas and his family. Nor has Thomas explained how his gifting scandal differs from the very similar gifting scandal that brought down Justice Abe Fortas.

There is one way, however, in which this scandal is quite different from the Fortas resignation. Fortas was a liberal justice, but many of the clearest calls for his resignation came from progressives such as Sen. (and future Vice President) Walter Mondale (D-MN) and Brown v. Board of Education author Chief Justice Earl Warren. As Murphy explains, however, Thomas’ ethics scandals have been met with “deafening silence from Republicans.” Unlike Mondale and Warren, who understood that the integrity of the judiciary must trump ideology, Murphy suggests Republicans have the opposite values:

One of the most shocking speeches that a Supreme Court justice has ever made was one that Justice Thomas made just a few months ago to a group of Virginia law students, in which – with his wife in the audience – he admitted, plainly, that his cause on the Supreme Court as a justice was the exact same cause that his wife was pursuing as the chief organizer of one of the nation’s most prominent Tea Party groups.

Republicans are silent on Thomas for a simple reason. He’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system.

Finally, Ian notes, "If a member of Congress were caught in a similar scandal, Murphy concludes, 'there would be calls from across this country for them to resign, and, frankly, they would have violated the laws of this nation.'”

JUSTICE THOMAS'S ETHICAL PROBLEMS

ThinkProgress Justice is highlighting some of Ian Millhiser's coverage of the Thomas troubles:

Lavish Gifts: Justice Thomas Caught Up in Yet Another Ethical Tangle (6/18/2001)
Political Fundraisers: What Role Have Scalia and Thomas Played in the Koch Money Machine? (10/20/2010)
Undisclosed Income: Justice Thomas Omitted His Partying Wife's Income From Financial Disclosure Forms (1/22/20111)
Conflicts of Interest: 74 Members of Congress Seek Justice Thomas’ Recusal From Affordable Care Act Lawsuits (2/9/2011)
His Family May Have a Stake in Citizens United: Is Ginni Thomas Getting Rich Off Clarence Thomas’ Supreme Court Decisions? (2/4/1022)
Justices Have Resigned for Less: Justices Have Been Forced to Resign for Doing What Clarence Thomas Has Done (6/19/2011)

You have to figure that Justice Thomas's ethical problems are mostly more flagrant than some of his colleagues'. It remains to be explained how Justice Scalia, for example, failed to recuse himself from ruling on then-Vice President "Big Dick" Cheney's secrecy claims when he'd become a social pal. That's more than "the appearance" of a conflict of interest, which we're always told must be so resolutely avoided -- that's the genuine article. And what might we find if we looked into the affairs of Chief Justice Roberts and Justice XXXX?

Which brings us back to a point of Representative Murphy's that I've already repeated once, but feel a need to repeat again:

"Republicans are silent on Thomas for a simple reason. He’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system."


And now, as the Court releases a slew of decisions in the run-up to Monday's end of term, we're seeing the results: ruling after ruling hacking away at the remaining vestiges of reasonable restraint on corporations at the expense of the rights of individual citizens. Like the ruling throwing out the women's class-action suit against WalMart. Somewhere I know I saw a blurb for some media outlet's coverage of that decision, which summed up that the Court "preferred" that labor disputes be resolved elsewhere than in the courts. I wish I could find that, because it seems to me exactly right. Whether this is a good view or a bad view, the fact is that the Court isn't supposed to have any kind of preference. It's just supposed to be applying the Constitution to the law. We remember that from all the judicial confirmation hearings, don't we?

But the far-right-wing bloc on this court goes way beyond "preferences." You know that at least four justices have made up their minds by the time they read the third or fourth sentence of the briefs. Maybe it's just a coincidence, but the WalMart decision is freighted with especially ugly baggage: putting the screws not just to labor but to women.

Here's a quick stroll down recent-memory lane.

Supreme Court Strikes Down Ban on Health Data Mining (6/24/2011)
SCOTUS Dumps On States Rights To Give Legal Immunity To Big Pharma (6/23/2011)
WalMart Is Only the Second Worst Class Action Case This Supreme Court Term

We could go on and on (the exceptions to the pattern seem so negligible as to drive the point home). Now it's "Drug Prescription Data Mining Cleared By Supreme Court." Makes you wonder what the boys -- and even though there are three women on the Court, remember that the Gang of Five is all male -- have in store for Monday.


There's some grim irony in that the Roberts Court has been working frantically to make secure for corporations all the rights of individuals, individuals have been left with fewer and fewer of those rights.

#

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?

#

In re. Respect for the Law vs. Thomas and Scalia: Time for another round of our beloved game "If the Shoe Was on the Other Foot"

WANTED

ANTONIN "NINO THE LIP" SCALIA
and CLARENCE "COKE CAN" THOMAS

Caution: Do not attempt to apprehend these men yourself. They are armed with extreme crackpot ideology and considered extremely dangerous to the U.S. Constitution and the rule of law, and can count on the support of persons of limitless resources, contempt for the law, and ruthlessness. Especially watch out for that Mrs. Justice Thomas. She's hell on wheels.

by Ken

In a post earlier today Howie asked, "When Do Impeachment Proceedings Get Underway For Clarence Thomas?" The immediate issue is the awkward matter of a wee goof by Supreme Court Justice Thomas: He, um, well, lied on, for sure, five annual disclosure forms, and almost certainly a sixth -- and that's just what we know of.

For the years 2003-06, we know, thanks to Common Cause's dredging of IRS records, that Mrs. Justice Thomas was paid $686,589 by the conservative Heritage Foundation, and Common Cause believes that for 2009 Mrs. Justice T was paid a salary by Liberty Central, the far-right lobbying group she helped found. For each of those years Justice T listied his wife's income on his disclosure forms as "none." This is called breaking the law, six times over (again, that we know of), and it's hard to imagine a situation whereby this could be inadvertent or in any way innocent.

Since Mrs. Justice T is well-known as an extreme-right-wing activist, Justice T is hardly a stranger to questions about the propriety of her political activities, which include zealous partisanship on a whole range of issues that have been brought before her husband in his years on the High Court. His answer is always some variant of defending her free speech rights, but of course he's not that stupid, or he wouldn't have lied six times (that we know of) on those disclosure forms -- isn't it clear that he knows perfectly well what a clearcut conflict of interest there is?

And while we're on the subject of flagrant conflicts of interest, Common Cause is currently also asking:

"Did these two men, Supreme Court Justices Antonin Scalia and Clarence Thomas, have a shocking and undisclosed conflict of interest when they ruled on the Citizens United case -- which opened the floodgates to unlimited corporate political spending?"

They're inviting visitors to sign a petition "calling for a Justice Department investigation of whether Scalia and Thomas should have recused themselves from the Citizens United case because of their participation in secret political strategy meetings with Koch Industries."

We, the undersigned, call on the Department of Justice to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves from ruling on the Citizens United case. We believe there are serious questions about their impartiality in this matter.

Justices Scalia and Thomas have been featured guests at secretive political strategy sessions sponsored by Koch Industries, a multi-billion dollar conglomerate that has invested millions of dollars in political campaigns and causes. Koch Industries was a major beneficiary of the Citizens United decision, which overturned long-established law to permit corporations to spend unlimited amounts on political advocacy.

Other guests at the private Koch meetings have included corporate leaders and conservative commentators. The involvement of Justices Scalia and Thomas creates a troubling appearance of bias, and should have led the Justices to disqualify or recuse themselves from participation in the Citizens United case. The Department of Justice has a duty to launch an immediate investigation.

About the only answer I can think of to the charges of conflict of interest against Justices Thomas and Scalia, the same one I hypothesized back when Justice Nino was taking the tiniest bit of heat for his flagrant conflict of interest in hanging out with then-Vice President "Big Dick" Cheney while he had every reason to believe he would be called on to rule on "Big Dick"'s suppression of the identities of the people he met with officially while developing his "energy policy," is that it doesn't matter how much time Justice Nino or Justice Clarence spends schmoozing right-wing potentates or even how much money said potentates pour into their family coffers, because the justices' votes were never affected in any way -- there was never any possibility that in a million years that would give even a microsecond's consideration to voting against the interests of their ideological bedfellows. That those bedfellows also made themselves their benefactors is just, well, gravy.

It's a time-honored cliché to say, with regard to conflict of interest, that what matters isn't actual conflict but the appearance of conflict of interest. Justices Nino and Clarence not only don't care about the appearance of conflict, they don't give a damn about the actual thing.

YES, IT'S TIME TO PLAY OUR FAVORITE GAME,
"IF THE SHOE WAS ON THE OTHER FOOT"!

By way of illustration, let's play, as I suggested in the post heading, another round of one of my favorite games, "If the Shoe Was on the Other Foot." This is where we imagine the roles switched: where accusations comparable to those against Justices Nino and Clarence were brought against one of the Supreme Court's moderate Justices -- Breyer, Ginsburg, Sotomayor, or Kagan.

TO BE CLEAR ABOUT SUPREME COURT LIBERALS

Let me say once again that there aren't any "liberal" justices on the High Court now, and there probably won't ever be again, the way the nomination and confirmation process has been reshaped. There's just the bloc of four ultra-extreme right-wing justices (the aforementioned Thomas and Scalia plus of course Chief Justice "Smirkin' John" Roberts and Justice "Sammy the Hammer" Alito), one more or less plain old right-wing justice ("Slow Anthony" Kennedy), plus the four moderates.

So just imagine Drudge or Hannity or Glenn Barf breathlessly "reporting" the ghost of a hint of a whisper of the slightest possibility of a financial irregularity anywhere in the same township with conflict of interest on the part of one of the moderate justices. In a matter of days the echo chamber of the Right-Wing Noise Machine would have the story thundering so crashingly from coast to coast that the justice's continued service would become a virtual impossibility. (At that, they're lucky that they're all sitting justices, so that their continued service would be only a virtual impossibility. If they were mere nominees caught in that ocean-to-ocean echo chamber, long before it reached that point they would have been cut loose by the president who appointed them, at least if it happened to be this president.)

There would be no ifs, ands, or buts about it. The drooling stooges who pass for "opinion leaders' now on the Right would be screaming for blood, and they would get it. (Think "Shirley Sherrod.")

CAN SOMEONE TELL THE INFOTAINMENT NOOZERS
THAT COMMON CAUSE IS NOT A "LIBERAL" ORG?

With regard to Common Cause, by the way, to whatever extent its reports on the financial and conflict-of-interest embarrassments of Justices Thomas and Scalia have gotten any notice in the infotainment noozemedia, in all the cases I've encountered it's always identified as a "liberal" group. It isn't. Never has been, and still isn't. It's a nonpartisan advocacy organization whose principal issues it lists as "money in government," "election reform," "ethics in government," "government accountability," "media and democracy," and "rule of law." "Right now," the "Our Issues" page on its website says,

we are working on several fronts to:

• Increase participation in the political process,

• Advance campaign finance reforms that make people and ideas more important than money,

• Make certain that government is open, ethical and accountable,

• Remove barriers to voting and ensure that our voting systems are accurate and accessible,

• Increase the diversity of voices and ownership in media, to make media more responsive to the needs of citizens in a democracy and to protect the editorial independence of public broadcasting, and to

• Make certain that public policy on health care, defense spending, climate change and other issues reflects the needs and priorities of our citizens, not special interests.

On the normal, rational ideological specturm, none of these is an "ideological" issue, just a good-government issue.

Is it really necessary to recall that Common Cause was the brainchild of a Republican, John Gardner? Actually, I would say that yes, apparently it is necessary.

I think I know where the confusion comes in. Common Cause says on the "About Us" page on its website," Common Cause "remains committed to honest, open and accountable government, as well as encouraging citizen participation in democracy." When we get down to specifics, it will be seen that while the group's goals are resolutely nonideological and nonpartisan, every single one is unequivocally and violently opposed by present-day right-wingers. Indeed, each is the object of lavishly funded to-the-death campaigns funded by those deep right-wing pockets.

Here's how those issues are framed in the website's "Our Vision" statement:

Common Cause is dedicated to restoring the core values of American democracy, reinventing an open, honest and accountable government that serves the public interest, and empowering ordinary people to make their voices heard in the political process.

In this spirit, Common Cause serves as an independent voice for change and a watchdog against corruption and abuse of power. Together with our sister organization, the Common Cause Education Fund, we employ a powerful combination of grassroots organizing, coalition building, research, policy development, public education, lobbying and litigation to win reform at all levels of government.

Founded with 4,000 core members in 1970 to serve as a people’s lobby, Common Cause has grown into a nationwide network of more than 400,000 members and supporters, with offices in 36 states and Washington, D.C. Today it works tirelessly to
• Strengthen public participation and faith in our institutions of self-government;

• Ensure that government and the political process serve the common good, rather than special interests;

• Curb the excessive influence of money on government decisions and elections and illuminate the connections between lobbying money coming in and government expenditures going out;

• Promote fair, honest and transparent elections;

• Hold government officials accountable for working within the rule of law and under high standards of ethical conduct;

• Fight for a vigorous, independent and diverse media; and

• Protect the civil rights and civil liberties of all Americans.

"Public participation and faith in our institutions of self-government"? Serving "the common good, rather than special interests"? "Excessive influence of money on government decisions and elections"? "Fair, honest and transparent elections"? Applying the rule of law and high ethical standards to government officials? "A vigorous, independent and diverse media"? "The civil rights and civil liberties of all Americans"?

I don't see how any of these goals could be branded as "ideological," but modern-day "conservatism" is diametrically and implacably opposed to each of them. To illustrate how far off the rational ideological specturm it is, the achievement of any one of these goals would mean an immediate, automatic, unappealable death sentence for the present-day movement. In fact, even partial achievement of as few as two of these goals would probably represent a crippling blow.

Which isn't likely to happen, of course. Slowly but surely over the last several decades the New Right has learned how to spend all those billions of dollars at its disposal to make sure that its voice is overwhelmingly the one most Americans hear, and overwhelmingly represented in the courts. Which brings us, as a random example, to the pair of federal judges who has so far ruled against part or all of the health care law. Which we'll take up tomorrow.

#