You Hold the Power in Your Vote

Armando writing for Daily Kos has an intriguing article about the Supreme Court decision regarding The Affordable Care Act (ACA) which was written by Justice Roberts.  Armando lays the premise that this decision sets forth the long term goals of Roberts and lays a foundation by the Court which will be the basis to restrict progressive values and undue the principles of the New Deal.

Many pundits and politicians were surprised that Roberts joined the four Justices who he generally disagrees with in order the author this opinion.  Unfortunately, the issue and the Court have been divided into two opposing views, either conservative or liberal. Of course the Supreme Court is suppose to be apolitical.  The rulings of the Court are to be based on the precedence of the Court which stems from the interpretation of the Constitution.   As Armando discovers, Roberts recognized prior decisions regarding the Necessary and Proper Clause paired with the Commerce Clause, while at the same time ignoring precedence.  That's right, he just ignored it!

So what does this mean?  It means that Roberts has laid the foundation to reinterpret the Supreme Court's prior decisions without overturning any decisions.  This will allow the Court to change progressive laws and principles merely by having a very conservative activist Supreme Court  rule in the majority.

John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness.... He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal. 

John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness. But the chief justice is different from his fellow conservative travelers on the Court. He knows that open proclamations of fealty to the Constitution in Exile and to a return to the Lochner Era will never be accepted in one fell swoop. He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal. 

In the ACA decision (PDF), the chief justice struck two blows against progressive values: (1) he gained five votes for a theory of limitation of federal power under the Commerce Clause and the Necessary and Proper Clause of the Constitution; and (2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.

In my post A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that the rule regarding the Necessary and Proper power expressed by the chief justice and agreed to by the other four conservative justices presented a radical change to our understanding of the Necessary and Proper power. The chief justice presents this change, as he so often does, as no change at all. He presents his de facto overturning of precedent (including the overturn of McCulloch v. Maryland, Chief Justice John Marshall's seminal opinion regarding the Necessary and Proper power), as fidelity to precedent. It is not.

Compare Chief Justice Roberts' formulation with that of Chief Justice Marshall. Roberts wrote:

[T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at _ (slip op., at 1–2); criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U. S. 456, 459, 462 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. [Emphasis supplied.]

Of course, the chief justice's statement that "the individual mandate vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power" is blatantly false. The Affordable Care Act is not a bootstrap from the individual mandate. In fact, the opposite is true: The individual mandate was enacted solely because in Congress' judgment, the Affordable Care Act could only be effective if a mechanism such as the individual mandate was included in it. In other words, it was a classic example of congressional use of its Necessary and Proper power. As the chief justice puts it, "exercise[] of authority derivative of, and in service to, a granted power." Regulation of the health care and health insurance market is undoubtedly valid under the Commerce Clause. The individual mandate is undoubtedly a valid exercise of the Necessary and Proper power to make effective the Affordable Care Act. 

In McCulloch, Chief Justice Marshall stated:

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

Chief Justice Roberts' ACA ruling on the Necessary and Proper power cannot be harmonized with McCulloch. But he did not overrule McCulloch. Indeed, the chief justice claims fealty to McCulloch. As I say, Chief Justice Roberts is a clever man.

Yes, Chief Justice Roberts is a very clever man. And he is, to use the common parlance, playing "the long game." Today, the chief justice is hailed as a man of moderation, a pragmatic man, not the ideologue of the likes of Justices Thomas and Scalia. And this is what makes him the most dangerous threat to our progressive values. In the coming terms, when the chief justice shepherds the overturning of affirmative action and declares the Voting Rights Act unconstitutional, we will be reminded that the chief justice is a moderate, pragmatic minimalist by the usual suspects.

And we will look back at the cherished progressive values now under threat and wonder what happened. Unless we fight. We must also consider how the chief justice threatens the ability of the Congress to enact progressive solutions to our current and future problems.
In her dissent in the ACA case, Justice Ginsburg wrote:

Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion

Why indeed? Because the conservative project is to undo the New Deal. It is to impose severe restrictions on the ability of the national government to implement progressive solutions to our national problems. Climate change? The federal government may not be able to do anything about that. Income inequality? Could be a local problem. The progressive project understands how important it is that the national government can act to address our problems. The conservative project is hell bent on defeating this vision. Chief Justice Roberts is playing the long game to undermine the progressive project. To undermine the vision President Franklin Delano Roosevelt outlined in his 1937 Constitution Day speech:

In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance. 

Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. […] We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. […] 

These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. […]
I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things. They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. [Emphasis supplied.]

Chief Justice Roberts is their man for our age. He is the man for those with "axes to grind" against progressive values. 

How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options.

This is the most important progressive project of this election and future presidential elections.

Defeat the conservative activist Supreme Court by voting.  VOTE for Barack Obama, 2012!!!! 

Your vote will effect history for years!

The Smell of Conflict

Michael Kieschnick, President of CREDO Mobile has an interesting perspective on "How to Bribe a Supreme Court Justice." Kieschnick raises the issue of conflict of interest that has arisen due to the nonprofit group, Liberty Central which is run by Virginia Thomas, wife of Supreme Court Justice Clarence Thomas.

The Los Angeles Times performed a serious act of journalism by covering the interesting conflict of interest facing Justice Clarence Thomas.

Mr. Thomas is married to Virginia Thomas, who just launched Liberty Central. The lead endorsement comes from two prominent Tea Party activists.

Liberty Central is thoughtfully organized under tax law as a c(4). It can take unlimited corporate contributions, not disclose them, and engage in partisan activities.

Ponder that for just a moment. The wife of a Supreme Court justice has organized a political non-profit linked to Tea Party activists whose activities can be supported to an unlimited extent by corporations whose donations need not be disclosed to the public. Similarly, Mrs. Thomas is under no obligation to disclose her compensation to anybody.

None of this appears to be illegal in part due to the recent Citizens United court ruling by the Supreme Court that freed corporation contributions from certain key restrictions. That radical and controversial decision passed by a 5-4 vote, and surprise, Justice Thomas voted yes.

When the Times asked Mrs. Thomas about this interesting situation, she responded with the traditional right wing charge of the media imposing a double standard on conservatives, pointing out that the elected governor of Pennsylvania, Ed Rendell, is married to a federal judge. She conveniently left out that any political contributions to Mr. Rendell are both limited and fully disclosed under Federal law, and that Judge Rendell scrupulously avoids any political activities.

Justice Thomas has been a reliable right wing, pro-corporate vote since his first day on the court. He can hardly be described as a swing vote whose vote could be bought. But perhaps he could be rewarded for services rendered. Or, if service on the bench becomes tedious, he might be persuaded to extend his tenure if important cases are looming on the horizon.

It may even be that this inventive activity by Mrs. Thomas is nothing new in her family. Her own biography reveals that she has been employed by a series of right wing organizations -- an entity controlled by former Congressman Dick Armey, whose FreedomWorks is much of the money behind the Tea Party gatherings, Hillsdale College (well known as a favorite of hard right students), the Heritage Foundation, and the Chamber of Commerce, the preeminent purveyor of laundered corporate money. None of these organizations need reveal their corporate backers.

Mrs. Thomas and Judge Thomas can easily address the situation, of course. Liberty Central could simply voluntarily disclose all of its significant contributors in a manner much like, say, the Clinton Foundation. And Judge Thomas could simply recuse himself from any case involving a significant donor to his wife's (and thus his own) financial well being. Supreme Court Justices, short of impeachment, answer only to themselves in deciding upon recusal. They alone determine if a conflict exists and how to respond. If they say no conflict exist, they can opine away.

If Judge Thomas wished to be more supportive of his wife's endeavors, he could simply resign from the bench. It would be fascinating to see what level of support Liberty Central would then enjoy. One suspects little.

The New York Times recently revealed that a mere $31,000 in political contributions by a pay day lending mogul and his family and associates seemed to have purchased an exemption from Federal regulation.

No doubt Mrs. Thomas would never stoop so low.

Oh those activist judges...conservative that is!!!!

Activist Judges

President Barack Obama will soon choose a replacement for the Supreme Court Justice to succeed Justice David Souter.

The Republicans and right-wing pundits have already indicated that no matter who President Obama chooses, they believe he will choose an activist judge.

In the language of a conservative, that means that the judge is not a 'strict constructionist' and therefore will be pro-choice, pro-stem cell research and pro-same sex marriage. Critics object to justices who inject their own beliefs into their decisions.

As the conservatives are pontificating on this issue, Jeffrey Tobin's New Yorker article, No More Mr. Nice Guy, explores the decisions of Chief Justice John Roberts.

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

It's looking more and more like Justice Roberts is an activist judge...Republican style!