Nuclear Option: Misplaced Conservative Outrage

Harry Reid's recent “nuclear” detonation left many conservatives in high dudgeon over "tyranny of the majority."   I recently argued that this contradicts the widely-held view that America is under the thumb of a corrupt bipartisan ruling class, viz.: (a) authoritarian reign by largely leftist oligarchic bureaucratic, judicial and media elite minorities over what President Nixon was once ridiculed for calling the "silent majority"; and (b) illegitimate domination by powerful over powerless minorities.   

Although Reid’s main goal was to pack the D.C. Circuit, justices were appointed to the Supreme  Court, long before his “nuclear option,” to rubber-stamp and provide faux legitimacy to metastasizing unconstitutional, legislatively created federal bureaucratic minority tyranny since the New Deal. Thanks to them, only the ruling class and "favored" minorities have rights, crushing those of the majority and "disfavored" minorities. Thus, quota discrimination has been imposed in violation of both the Constitution and explicit statutory language; property rights and religious freedom have been undermined; violent criminals have “rights” at the expense of the vast majority of law-abiding individuals; and, worst of all, massively harmful Obamacare has been legitimized in an egregiously disingenuous opinion written by a publicly threatened chief justice.

Reliance upon judges is misplaced. Ruling class Republicans have failed to exercise their existing power to block the tyrannical assault on freedom and representative democracy.  House leaders have blocked fulfillment of the very promise that made them leaders. If a genuine opposition party is not established, nothing can save the Constitution – or the representative democracy and freedoms that are the heritage of this country.

Should Those Who Revere the Constitution Respect Those Who Don’t?

As one who deeply admires Justice Thomas and agrees with Tom Goldstein that he has been “our greatest justice,” I am distressed by Thomas’ televised public statements off the Court undercutting his courageous defense of the Constitution and rule of law on the Court. 

Having previously praised liberal activist justices as individuals, he subsequently proclaimed their written court opinions to be as worthy of respect as his own. But I contend here that this disregards opinions, in the most divisive cases, that are often value judgments disguised as constitutional interpretation. Thomas himself has made that point throughout his tenure.

In my view, to say that all value judgments are entitled to respect is to preach from the bible of leftist multiculturalism. Citing opinions Thomas has written, joined and opposed, I ask: are opinions entitled to respect when Thomas states that they (1) dissemble; (2) are lawless and illegitimate; (3) engage in arrogant usurpation of power, limited only by justices’ sense of what they “can get away with”; (4) are based on the belief by justices that blacks are inferior to whites; (5) use the same rationalizations earlier employed by slaveholders and segregationists; (6) sentence the most vulnerable  law-abiding citizens to lives of terror in order to protect gang members who inflict that terror, etc., etc.?

Of course, Thomas cannot be expected to publicly insult the activist justices he must work with. But this surely does not require him to go to the polar extreme by suggesting that his opinions, faithful to the law and reflecting widely accepted values, are no better than theirs. At a time when the left employs Alinsky rules, it is imprudent for conservatives to observe Marquis of Queensberry rules. Given detrimental abuse of power by many justices, it is ill-advised to legitimize what they do by declaring respectable the undemocratic imposition of their idiosyncratic harmful personal morality upon the American people.

Should the Best Justices Publicly Praise the Worst?

On television, Justices Thomas and Scalia “lavishly” praise colleagues whom Curt Levey suggests are nightmarish. My latest article explains and documents why oral public accolades by the best justices for the worst are not only unwarranted but refuted by their own written opinions.

 

Repeatedly in writing, Justices Thomas and Scalia have questioned the integrity of their colleagues; and accused them of arrogance, lawlessness, license, illegitimate abuse of power, basing decisions on no more than their own personal values, contempt for the Constitution, sowing confusion rather than providing clarity, hypocritically pretending to defend the weak against the powerful while actually favoring the powerful at the expense of the weak, protecting inconsequential expression while disdaining the heart of the first amendment, poisonous and pernicious racism and sexism, belief in black inferiority, jeopardizing the lives of good innocent people in order to save the lives of the most vicious and depraved, placing the welfare of terrorists above the lives of soldiers combatting them, mandating infanticide (the barbaric killing of human children), and numerous other sins.

 

These are very strange criteria for “good … honest … fabulous” justices. 

 

If it is unrealistic to expect Thomas and Scalia to criticize sharply in public those with whom they must work, cordial interpersonal working relationships surely do not require going to the opposite extreme. Even if it would be inappropriate to be publicly negative about other justices, there is no reason to give lay people the impression that rabid leftist judicial ideologues are fantastic rather than destructive. Facing the grave threat of losing even the current sometime constitutionalist Supreme Court majority, this can only lend legitimacy to and encourage the judicial arrogance, dishonesty and abuse of power against which Scalia and Thomas repeatedly have protested in writing.

If total calamity is to be averted, conservatives must effectively educate the public about dangers posed by extremist liberal judicial activism. Robert Bork was defeated by vicious lies. Leftist fanatics should be defeated by the little-known media-buried truth. 

My article provides an easily understood review of the Scalia-Thomas catalog of shocking truths.

See SSRN or here (with links), and here (without links).
 

 

SCOTUS Nominations Warning: Do Not Confuse Relief with Joy

I have written an article to place in perspective the argument, recently advanced repeatedly, that the election of Mitt Romney would spell the end of liberal judicial activism. That is far from certain. 

The virtue of being not-Obama must not be confused with virtue. While defeat of Obama should be a basis for relief, it does not follow that election of Romney should be a cause for joy. The latter case would assure nothing beyond the avoidance of absolutely certain judicial disaster. But avoiding a guarantee of what would happen is not a guarantee that it won't happen anyway.

As readers of this blog know, but the public does not, for the last six decades, the sorry history of harmful liberal judicial activism has largely been a history of handiwork of Republican appointees.

So optimistic assurance is no substitute for real vetting -- and fighting! Credible objections to nominees must be taken very seriously by constitutionalists rather than set aside just because the president is purportedly conservative.

No Republican president can be relied upon. None! Not ever!

If Obama wins, the judicial war will be lost for a generation and possibly forever; but it does not follow that, if Romney wins, the war will be won. Unless proponents of fealty to the law and Constitution as written surrender at the outset, a Romney victory promises only the beginning of a protracted judicial struggle -- not only against the most venomous leftist character assassins but also against the inclinations of Republican presidents to seek "moderation" and also to buy easy peace from the assassins by compromising judicial integrity and principles.       

My article is entitled Supreme Court Warning to Conservatives: Do Not Confuse Relief with Joy.   

ObamaCare vs. SCOTUS Legitimacy

At the onset of a new Supreme Court term a month before a critical election, many have been looking back at Chief Justice Roberts’ ObamaCare opinion that resulted in widespread shock at the end of the last term. Of particular significance was that this opinion came in the wake of vicious personal attacks by de facto parties to the case, especially President Obama and Senate Judiciary Committee Chairman Leahy. They charged that a ruling against them would be a severe blow to the legitimacy of the Court. Numerous accounts have suggested that the chief justice reversed himself for fear of lending validity to that charge. 

I have written an article here arguing that, if protecting legitimacy was his goal, Roberts sadly produced the opposite result. He has raised questions concerning the utility of elections, what remains of our actual Constitution, the rule of law, and public acceptance of judicial review.

As protested by the dissenters, his opinion was an exercise in utter sophistry. I analyze six fast shuffles that Roberts and his apologists had to engage in to defend this result. For example, calling the same words a tax and not a tax, declaring that it was constitutional to compel indirectly what was unconstitutional to compel straightforwardly, and recognizing limits on federal power while at the same time giving the Court’s imprimatur to unlimited presidential and congressional power. I also discuss the fast shuffles involved in lecturing the voters that their political choices were responsible for ObamaCare and, hence, it was up to them to fix it; as well as disregard for completely unambiguous legislative history by justices who had relied upon such history in the past when far less clear. Finally, I argue that Roberts’ apologists, trying to absolve him of the charge of acting as a politician rather than a judge, engage in sophistry by applying the wrong standard of evaluation, rather than the appearance standard applied to assessing judicial impartiality.

The Chief Justice’s Assault on Democracy

I have substantially revised and expanded my prior post regarding the Chief Justice. It is now a full-length American Thinker article entitled “What Hath Roberts Wrought?” In it, I critique a particularly disingenuous line from Chief Justice Roberts’ opinion: 

                              It is not our job to protect the people from the consequences of their political choices. 

Although the line has been accepted and even praised by many conservatives, in my view, it is very misleading at best, and slander of “the people” at worst. Roberts’ unpersuasive attempt to have his cake and eat it too, by both denying and asserting that the ACA imposed a tax, is worse than mere internal incoherence. It is, in reality, a debasement of political choice.

If, as is now well known, Roberts calls a tax what all those who imposed the law denied was a tax (and still do), both in repeated public statements and in the express language of the legislation, he is in no position to condemn “the people” for their choices. Roberts has validated misinforming the very people he expects to make informed choices. It borders on outright slander to blame the people for a monstrosity they were never told they were voting for and a majority of whom vehemently opposed from day one.

Even worse, Roberts has committed a frontal assault on the democratic process. If politicians can deliberately mislead the people with the assurance that the Supreme Court will declare they did not mean what they said, voting becomes meaningless. My article expands upon this:  

In protecting deceit, Roberts smashes to smithereens his grandiloquent bromide disavowing Court vigilance regarding supposed political choices of the people. How can the people be held responsible if they have no idea what they are choosing...? If the likes of John Roberts are not going to hold elected legislators accountable for their actual words, the people should not be lectured about "consequences of their political choices."

Matthew J. Franck Is Out of Line

             The following comment is completely mine. Curt Levey did not ask me to write it, see it in advance or give his approval. I am sure he does not need me to speak for him. But, as one of many shocked by Chief Justice Roberts, I strongly believe the following should be said.

            John Roberts apologist Matthew J. Franck has a remarkable attack on Curt Levey: No One Ever Turns On You Quite Like Your Friends. This suggests that Levey turned on Roberts rather than Roberts turning on  his own friends, those who enthusiastically and actively supported his nomination – figuratively stabbing them in the back and literally leaving them in shock.

Levey’s comment on the ObamaCare decision stated, in part: “Obama and company’s attempt to cow the Supreme Court succeeded … the pressure apparently got to Roberts,” who, many have argued, changed his vote as a result of the pressure. Franck labels this the “nadir for commentary on Roberts.” Franck prefers to take seriously what he calls the “bravo” possibility that Roberts acted out of principle.

At least these points should be considered in response to Franck. As even he bluntly makes clear, there are only two “possibilities”: Roberts is a dishonest and corrupt coward, or he courageously and sincerely acted on principle.  To accept the latter, this brilliant lawyer had to actually believe:

·        Congress improperly but properly imposed the individual mandate  –  it had no power to enact the mandate per se, but it properly exercised its tax power as a bludgeon to compel acceptance of the mandate anyway, even though it explicitly denied doing so.

·        The Act was simultaneously not a tax and a tax – as stated by the dissent, “the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.” 

·        It is not the Court’s “job to protect the people from the consequences of their political choices,” except of course when it is the Court’s job, which is not to “abdicat[e] in matters of law.”

These points reveal precisely Roberts’ penchant for the have-it-both-ways sloganeering characteristic of politicians responding to political pressures. As to the third point, can Roberts have forgotten by Thursday that, on Monday, the court (1) invalidated the sentencing policy choices of 29 jurisdictions for the benefit of convicted murderers, while simultaneously sentencing innocent, law-abiding citizens to death; and (2) as characterized by Justice Scalia’s dissent, substantially invalidated Arizona’s attempt to protect its “citizens under siege,” by holding the state “contradicts federal law by enforcing” federal law?

Of course, Roberts knows as well as anyone that the Court, with far less justification than in the ObamaCare case and often with no justification at all other than the “raw judicial power” of five votes, has invalidated close to 200 federal laws and hundreds of state laws. Earlier I wrote about how the court, resorting to interpretation abuse, has rewritten the Constitution. Roberts’ opinion will likely go down as a classic example of such abuse, especially given the historic stakes of the case. 

One final point. For decades, double-standard leftist partisans have wielded the weapon of “appearance of impropriety” against their opponents who have done nothing wrong. In the case of judges, this standard is actually codified in 28 U.S.C. §455(a). Although there is not – yet – 100% proof that Roberts acted improperly, the evidence continues to mount. At a minimum, an abundance of evidence already indicates that the appearance of impropriety standard applies to Roberts, whose “impartiality might reasonably be questioned.”

 

The New York Times' Broccoli Obsession

Last week, the New York Times ran a lengthy and sarcastic front-page article attacking the use of broccoli to illustrate why the ObamaCare individual mandate is unconstitutional. My  critique of that article was just posted at American Thinker. In part, I state:

"Because, in a sense, the broccoli example is a reductio ad absurdum ridiculing ObamaCare's overreach, the Times disingenuously attempts to ridicule this legitimate ridicule."

Using typical media bias techniques, the Times attempts to marginalize ObamaCare opposition as confined to extremists, seeks out a professor to proclaim ex cathedra that broccoli is a “simplistic metaphor” and “such a bad argument,” implies that justices would be naïve to strike down the law on the basis of this inapt “defining symbol,” and disputes “that limiting the commerce clause protects personal freedom,” which it derides as a mere “notion” in the sense of a foolish idea. 

For reasons elaborated upon in my article, I conclude:

"[I]f ObamaCare is upheld, there will be no end to interference in people's lives -- far more than already exists. There is never any end to the schemes concocted in the fertile minds of petty martinets who derive their greatest satisfaction in life from bossing other people around, in the guise of legitimate exercise of government power.

"Despite the Times' attempt to belittle the broccoli example as a far-fetched 'notion' of right-wing extremists, broccoli will be just the beginning."

Judicial Activism & Irrational Sentencing

      I recently wrote about how judicial activists have created a constitutional right for the most brutal and depraved criminals to commit new brutality free from any punishment whatsoever, precisely because they are the most brutal and depraved.

      For select miscreants already serving life sentences, the death penalty for new crimes – with the exception of first degree murder in some states – has been rendered unavailable by unaccountable high court justices. For example, the U.S. Supreme Court has effectively decreed that escapee Ehrlich Anthony Coker had a “constitutional right” to rape Elnita Carver, under threat of death, with no punishment at all, three weeks after she gave birth.

      The Court bestowed this right upon Coker as a reward for his having committed prior violent crimes including rape, attempted murder and actual murder. Since he was already serving a life sentence and the death penalty for rape is too harsh for the moral sensibilities of justices, no further penalty could be imposed. The Supreme Court and other courts have even ruled that some convicted murderers could torture and murder fellow inmates and prison guards without punishment.

      Unsuspecting citizens might think that those with the worst records and crimes should and do receive the harshest sentences. Clearly, that is not the necessarily the case. Something is painfully wrong when a person with no prior record can receive a harsh sentence because he is not already incarcerated, but someone serving life cannot be penalized for the most barbaric new crimes because he is already serving life for the worst depravity.

      There is little basis for confidence in the judges who have given us this criminal “justice” system. These individuals or the people who appoint them should be held accountable in elections. The next election will be critical in this regard.

      For more on this subject, please see my article originally appearing here or here.

Amending the Constitution with 5 Votes

A New York Times article scorning the Constitution as unworthy of emulation approvingly quotes Prof. Levinson’s view that it is extremely difficult to amend. This is true of resort to Article V. However, unnoticed by the public and most pundits, activist interpretation abuse has effectively neutered Article V, amending the amendment process itself by transferring the amending power to the Supreme Court.

In practice, the justices have "interpreted" the very word "interpret" to be a license for them not only "to say what the law is," but to say it isn't what it is, and is what it isn't. Turning interpretation into a scam, they repeatedly have authorized what is constitutionally prohibited and prohibited what is authorized or required.  

In reality, myriad de facto constitutional amendments have been very easily adopted, often by as few as five justices. This has caused Supreme Court nominations to become proxy fights to determine what amendments are going to be imposed (and statutes rewritten). 

Given the number of Supreme Court appointments likely to be made between 2013 and 2017, the next election will be critical for the future of the Constitution and the country. It will determine whether there will be unlimited government power over the minutest details of the lives of the American people, limited only by newly invented "rights" never imagined by the framers.  

For more on this subject, see my article originally appearing here and slightly revised here.