Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

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Poor Backwards America

Since Justice Ruth Bader Ginsburg told Egyptian audiences in Cairo that nations should use models of government other than the United States Constitution for their new constitutions, a small backlash has begun to grow larger. Ginsburg prefers South Africa’s constitution (South Africa’s?!), or the Canadian basic document which contains no less than eight specific prohibitions on freedom of speech and religion.

Letting no grass grow under its feet, Politico wrote a one-sided “news” article on the subject seemingly supporting Ginsburg’s view. The Politico article is entitled: “Study: Constitution in Decline,” and takes its impetus from a study done by David S. Law and Mila Versteeg entitled: “The Declining Influence of the United States Constitution.” The study was prepared for Washington University in St. Louis, and published in the New York University Law Review. To start with, there is a substantial difference between the Constitution in decline and the decline in influence of the American Constitution overseas. But I can’t disagree with the former, and the latter is a simple fact. Citing genuine statistics, the study concludes that “the US Constitution appears to be losing its appeal as a model for constitutional drafters everywhere.”

The authors looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. They found that the influence of the US Constitution peaked in the 1990s at the end of the Cold War, then declined rapidly. This seems to be counterintuitive, but the statistics hold up.

There are many reasons why this might be true. The most obvious is the misplaced emphasis on “human rights” over individual rights. This is at least partially understandable. Many of the nations adopting new constitutions have little or no experience with self-rule, freedom, or the concept of ordered liberty. They are products of either the end of colonialism or the end of oppressive dictatorships. The siren song of “human rights” makes considerable sense taken in that context.

But most of these nations also have little experience with the ideals of private property ownership, contracts, and the rule of law rather than of men. Egypt and possibly Syria would be prime examples. Get rid of that nasty military dictator, replace him with democracy, and replace one-man rule with the goal of one man, one vote, one time. Egypt is quickly becoming openly hostile to America and its institutions, and its constitution is likely to look a lot more like the Koran than the US Constitution.

Another reason which hits closer to home is the activity of the “progressives” who have, starting with Woodrow Wilson, considered the Constitution to be a roadblock in the way of gross social experimentation and central government control of daily affairs. Ginsburg’s remarks bear that out. And shortly after Ginsburg made those remarks on foreign soil, Barack Obama followed up with a political speech demeaning the Constitution as being so creaky that it was impeding his efforts to fundamentally transform America.

With a few notable exceptions, administrations of both political parties have followed the liberal progression from self-government and the rule of law to government by decree and disrespect for the separation of powers so beautifully laid out in the Constitution. The prerogatives of Congress have been overcome by executive orders and bureaucratic diktats from the executive branch, all in derogation of the specific ground rules of the Constitution.

Another (perhaps minor) factor is the very recent use of foreign law in Supreme Court decisions. Foreign law has always been an element of court decisions where international treaties are involved. But even then, the Supreme Court has often interpreted treaties which are not self-actuating solely by use of American law and the Constitution. Lately, the four liberal members of the US Supreme Court have joined with a swing vote to render decisions citing foreign law that quote air-fairy “fundamental human rights.” The favor is not being returned. Foreign courts cite American constitutional decisions at a rapidly decreasing rate.

And finally, there’s the false argument that (in the words of the study): “No evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American Constitutionalism lies with the static character of the Constitution itself.” That is the argument of the intelligentsia, but the booboisie picks it up quickly.

The arguments include “the Constitution provided for slavery” (which it didn't) and “the Constitution denied women the right to vote.” Those arguments forget a fundamental fact. The Constitution is a bedrock document, and changing it was made purposely difficult. But it is not static, nor is it frozen in time. Those things which the original document got “wrong” or didn’t address were corrected or addressed in the Bill of Rights and all the subsequent amendments. When citing the Constitution, it is unfair and just plain wrong to refer only to the original document. The Constitution, as amended, is an integrated document balancing multiple rights with multiple restraints.

Simply put, as the Founders well recognized, the Constitution provides for the maximum amount of freedom without surrender to the will of temporary majorities. That latter concept is misunderstood throughout the world, and our indigenous left plays it for all it’s worth. Any document which prevents a nation from exercising what may seem to be “the will of the people” (on any given day) will be unpopular in nations which desire pure democracy—a concept which has failed every time it has ever been tried.

Anti-Constitutional, pro-democracy advocates should read history. The Founders certainly did. And their Republic, no thanks to progressive administrations, has stood the test of time since the proclamation of the Bill of Rights. But can it survive Barack Obama and Ruth Bader Ginsburg? Why should fledgling nations respect our Constitution when a sitting Supreme Court justice and our Chief Executive Officer don’t?
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Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Ruth Joan Bader Ginsburg was born on March 15, 1933 in Brooklyn. She is the second daughter of Nathan and Celia (Amster) Ginsburg. She was the younger of two children, both daughters. She was devoutly religious, and took advantage of the strong Jewish educational opportunities available in New York City. She read voraciously, and always did well in school, graduating from James Madison High School.

The future justice went on to Cornell University in Ithaca, New York. She received her bachelors degree in 1954, and then went on to Harvard Law School. Prior to her entry into law school, she married Martin Ginsburg. After they graduated from law school, he went on to become a prominent tax attorney and a professor of law at Georgetown Law School. They have two children, a daughter born in 1955 and a son born in 1965. When her husband's employment took him to New York City, she moved to Columbia Law School where, as at Harvard, she was on the law review. She received her bachelor of laws from Columbia in 1959, and was tied for first in her class.

While in law school, she became actively involved in early feminist causes. She continued to belong to and advocate feminist causes right up to her first appointment to the bench. Thereafter she broke her official bonds with feminist organizations, but her rulings consistently demonstrated her commitment to feminist ideals. Upon graduation from law school, she began a clerkship for Judge Edmund L. Palmieri of the U.S. District Court in New York. Although highly recommended by the dean of Harvard Law School, she was rejected in 1960 for a clerkship for Supreme Court Justice Felix Frankfurter. After completing her position as a research associate and director of the Columbia Law School Project on International Procedure, she became a professor of law at Rutgers, where she taught from 1964 to 1972.

In keeping with her feminist views, she co-founded the Women's Rights Law Reporter, the first American law journal to deal solely with women's rights. She became the first tenured woman on the Rutgers Law faculty, and co-authored the first law school textbook on sex discrimination. In 1977 she became a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University. Although she never practiced trial law, she became the chief litigator of the ACLU's women's rights project, and argued cases before the Supreme Court where she developed a reputation as a skilled oral advocate on appeals.

She continued in her capacity as a senior ACLU attorney through 1978. That year, she challenged laws and practices in the state of Missouri which made women's service on juries optional (Duren v. Missouri). She saw this as demeaning to women, and argued that it sent the message that women's service was unnecessary for important government functions. Future Chief Justice, and then Associate Justice William Rehnquist asked Ginsburg "you won't settle for putting Susan B. Anthony on the new dollar bill, then?" Realizing it was not meant as a serious question, Ginsburg did not answer.

Ginsburg was appointed to the U. S. Court of Appeals for the District of Columbia Circuit in 1980 by Jimmy Carter where she remained through the next thirteen years. In 1993, President Bill Clinton nominated her for a seat on the U. S. Supreme Court on the recommendation of his Attorney General Janet Reno. At the confirmation hearings, Ginsburg refused to answer most of the questions asked of her regarding her personal views on issues which had been addressed by the Supreme Court. She also refused to answer hypothetical questions posed to her on a multitude of issues which might come before the Court in the future. Legal scholars of all stripes largely agree with her right, and even her possible obligation, to refuse to answer those questions. However, many conservative scholars have pointedly asked why the same courtesy was not afforded to later Republican appointments Samuel Alito and John Roberts. The final Senate vote was 96 to 3.

Ginsburg's appointment changed the balance of the court. She replaced Justice Byron "Whizzer" White. White had been appointed by John F. Kennedy, but he was not the type of justice who fits today's definition of a good Democrat. In labor cases, he tended to side with unions, but he was otherwise very much a traditionalist who was unwilling to continue the expansion of the judicial empire. Clinton could now count on a court which would lean toward activism, feminism, and enlargement of the powers of the federal government over the states. During the hearings, one of the few issues Ginsburg had declared strongly on was her support for the judicial newly-created right of privacy (in Griswold v. Connecticut), and more importantly, its expansion into the right of abortion (newly judicially-protected by Roe v. Wade). Clinton could now put on his dog and pony show about making abortion "safe and rare" without worrying that the Court would return the decisions on abortion to the states.

Despite being one of the best-known justices, her record on the court must be discerned more by her votes than her fairly rare written opinions. If the case expanded federal authority over the states, blurred the lines between legislation and judicial opinion, leaned toward creating new and previously undiscovered constitutional rights, preferred "victim" group rights over individual rights, or broke with precedent to support the Democratic Party's cause du jour, you'll find Justice Ginsburg's fingerprints on it.

On environmental issues, she has always come down on the side of the radical ecologists and litigious environmentalists, as in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (her majority opinion found that individual plaintiffs had the right to sue a company for past acts which were perfectly legal at the time, but resulted in present residual pollution of a river). Always willing to support an out-of-control court seizing power from the people and the legislatures, she wrote the dissent in Bush v. Gore, declaring that in the interest of "fairness" the Florida Court had the obligation to change legislative statutes, case law and precedent in order to guarantee the continued counting of votes until the "right" vote was tallied. Most recently, she searched, and searched, and searched, and simply couldn't find any kind of discrimination against whites in the case of Ricci v. DeStefano. She wrote the dissenting opinion which would have upheld the ruling of her new powder-room Supreme Court ally, Sonia Sotomayor.

The opinion most loathsome to conservatives, traditionalists and those who can get past the weasel-word "choice" was Stenberg v. Carhart, an opinion in which Ginsburg both joined and strongly advocated. The case struck down Nebraska's statute forbidding partial-birth abortion. Ginsburg uses a kind of twisted logic to support her activism on abortion. She laments that it had become "necessary" for the court to act in Roe v. Wade since it "terminated a nascent, democratic movement to liberalize abortion laws which might have built a more durable consensus in support of abortion rights. " I guess that means she prefers death in small doses. Again, in 2009, in a New York Times interview, she continues to ignore any discussion of a baby in the womb as having any existence as a human being. She continues to speak in terms of women's rights, and ignores the horrific consequences of late term abortions. "The basic thing is that the government has no business making that choice for a woman." In her mind, and in her jurisprudence, there is only one human life involved in an abortion, and the baby isn't it.

To her credit, when she was asked by liberal-leaning MSM reporters about Roberts's and Alito's avoidance of answering many questions posed by the Democrat attack dogs Leahy, Kennedy and Feinstein, she supported the judges' right to do so and would not criticize them for maintaining judicial neutrality by not announcing how they might vote on a future issue before the Supreme Court. To her discredit, Ginsburg is lavish is her praise for using foreign law, politics and norms to shape American constitutional law. She is very much a booster for the "living Constitution."

Despite many bouts with aggressive cancer, surgery, and chemotherapy, Ginsburg has returned to the Court, each time a little more frail, but always alert and ready. Nobody can deny her work ethic. And she has that unique ability not to take what happens in the confines of the Supreme Court personally. Her best friend on the Court is Justice Scalia, who has on more than one occasion disagreed with Ginsburg in extremely strong terms. Their judicial and political views couldn't be more different, but once they step outside the marble halls, they enjoy lunches and dinners together in complete camaraderie.

It is considered a relatively safe bet that Ginsburg will be the next justice to retire. But she has personally shown no indications that she will do so. She may surprise everyone by sticking around. Given the current administration's political and judicial views, it would be hard to find a justice more liberal and more activist to replace her, but it would also be difficult to find one as intelligent and hard-working. Should she be the next to leave, the makeup of the court would be unlikely to change much, although another strong liberal with a weak mind might make the job of the conservatives and strict constitutionalists on the court a bit easier.
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