Our Activist Supreme Court

By Cato the Elder

Obama, spewing his pablum in the rose garden today about how overturning the train wreck that is Obamacare would be judicial activism.

And the appropriate rebuttal from Joe Pesci.

Open thread.


Comments

  • Elder Berry says:

    So a state can make you buy car insurance but the feds can’t make you buy health insurance? That’s some faulty logic there on the part of judges who clearly have an agenda. Please don’t give me that old tired Federalist drivel either. There’s plenty of justification for this under regulation of interstate commerce.

    Let’s be clear, I don’t mean the liberals having fuzzy logic. When the Heritage Foundation supported the mandate idea, conservatives were all for it. After Obama picked it up (remembering that it was after all the Congress that passed it not Obama) it’s poison. Pardon me for noticing the hypocrisy. Shoot, these days I expect no less, the right will say or do anything no matter how crazy or hypocritical or flatly untrue. The Republican Party has lost its mind and the Supreme Court majority is looking more and more like a gang of party henchmen than a group of Constitutional scholars. What can anyone expect from a bunch who “selected” a president.

  • NoVA Scout says:

    It’s clear from this stance of the Administration that they think the universal coverage requirement is in serious trouble. But they’re playing with fire to start campaigning against the court now. No self-respecting Supreme Court justice is going to do anything but bridle against this kind of over politicization of the Court’s processes. If they thought Kennedy might be in play, this stunt means they can kiss it good-bye. They would have done much better to button their institutional lip, suck it up if the decision goes against them in whole or in part, and then try to make their points in the context of the Senate and House .seats that are up in 2012.

  • Cato the Elder says:

    I guess he was on a smoke break when they covered Marbury v. Madison.

  • edmundburkenator says:

    Politics.

    This is the set up for one of the campaign messages if it gets overturned (elections matter because of SCOTUS, yada, yada). If it doesn’t get overturned, he gets to look right.

    It’s unbecoming to be sure, but he seems to have a higher than usual degree of antipathy for some on the court and their reasoning and isn’t afraid to say it (now, or at a SOTU).

  • NateDogg614 says:

    “So a state can make you buy car insurance but the feds can’t make you buy health insurance?”

    The state is not making you buy the car.

    ” That’s some faulty logic there on the part of judges who clearly have an agenda.”

    Its always the conservatives who have the agenda….never the liberals, eh? Frankly, I would argue that everyone has some kind of agenda.

    “Let’s be clear, I don’t mean the liberals having fuzzy logic.”

    Oh, I do. Liberal logic is very fuzzy sometimes.

    “When the Heritage Foundation supported the mandate idea, conservatives were all for it. After Obama picked it up (remembering that it was after all the Congress that passed it not Obama) it’s poison. Pardon me for noticing the hypocrisy.”

    Interesting how Republicans have bad ideas and Democrats have no ideas, and have to steal the bad ideas from the Republicans. Yes, Congress passed it, Obama put his name on it. By that same logic that you outline, Clinton did jack when it came to wellfare reform and the economic boom, as the Republican Congress passed both the legislation and the balanced budgets. Heck, you could make the case that Republicans were single-handedly responsible for women’s suffrage with your logic as well. If you want to go with said logic, that’s find by me…just remember what happens as a result.

    “Shoot, these days I expect no less, the right will say or do anything no matter how crazy or hypocritical or flatly untrue.”

    Right, and the Democrats aren’t guilty of such allegations.

    “The Republican Party has lost its mind…”

    Riiiiiiiiiiiiiiiiiiiiiight.

    “…and the Supreme Court majority is looking more and more like a gang of party henchmen than a group of Constitutional scholars.”

    No, the Supreme Court is doing exactly what is outlined in Article III of the Constitution. You would think that Obama, who apparently was a Constitutional Law schlar, would know that.

    “What can anyone expect from a bunch who “selected” a president.”

    Ah, the 2000 election again. Well, a couple of points on that, since you brought it up:

    The Supreme Court, in a per curiam opinion, ruled that the Florida Supreme Court’s decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. This ruling was by a 7-2 vote. The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 “safe harbor” deadline. Its the 5-4 ruling that the liberals like to harp on (as it was a closer vote). Also, four of the current justices WEREN’T EVEN ON THE SUPREME COURT in 2000. Those who were include Scalia, Thomas, Ginsberg, Breyer, and Kennedy.

    Always remember this about the 2000 election: If Gore had but won his home state of Tennessee, Florida would have been a moot point.

  • David Dickinson says:

    Obama’s lack of respect for the Supreme Court is stunning and frightening. It demonstrates the grave danger that the liberal left poses to the United States, their disdain for the Constitution, and their “ends justify the means” mentality.

    We cannot get rid of this man soon enough.

  • BlackOut says:

    DD, you watch to much FOX and listen to too much Rush.

  • G.Stone says:

    “So a state can make you buy car insurance but the feds can’t make you buy health insurance?”

    Yes. It is called the 10th Amendment.
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

  • David Dickinson says:

    BO, I don’t watch Fox (I don’t have cable) and just listened to Rush for the first time in my life this year and, frankly, I don’t like his show.

    Obama and the “progressive” left are a tremendous threat. I don’t need Fox or Rush to come to that conclusion. I can just observe what they do.

    Obama chiding the Supreme Court during the SOTU was bad enough and now he continues the Chicago bullying tactics after his crappy healthcare law is about to go down in flames. Just like a liberal, he doesn’t address the law and policy, he attacks the people who oppose him (“unelected” judges he calls them).

    On the local level, we see these same tactics used against Delgaudio. Anywhere you see liberals you will find the ad hominem attacks.

    Liberalism cannot survive. It is not sustainable. Instead of facing the facts of reality, liberals blame something. Now, they blame the Constitution or the Supreme Court, or whatever it is that gets in the way of what they want.

  • G.Stone says:

    His statements should be an embarrassment to anyone who reports to be a constitutional scholar. Politics aside , the President made an ass of himself specific to history, the history of the court, and his understanding of the constitution.

  • G.Stone says:

    “There’s plenty of justification for this under regulation of interstate commerce.”

    The absence of commerce is not commerce.

  • BlackOut says:

    DD, saying that liberals are a “grave danger” is as much of an ad hominem attack as anything. The masters of which are FOX and Rush. Of course Hannity, Beck, and Levin come from the same school.

    Last time I recall hearing of a grave danger was in a Tom Clancy fiction book.

  • David Dickinson says:

    To Stone’s point of:

    ““So a state can make you buy car insurance but the feds can’t make you buy health insurance?”

    Yes. It is called the 10th Amendment.”

    That’s why each STATE has its own insurance commissioner.

  • So, DD, the health insurance mandate would be constitutional if it were done at the state level?

    Poor argument you’re putting forth there.

  • David Dickinson says:

    That was a clear and present danger.

    Liberals are a grave danger to the Constitution, the Rule of Law, and the American way of life at the local, state, national, and global level.

  • David Dickinson says:

    Yes, at the state level it would be Constitutional. I don’t like it, but look at Massachusetts. It passed constitutional muster.

    It goes back to your post Lloyd of the power the state has that the federal government does not and why we should be wary of the state. We should be.

    My guess is that after the federal liberals lose this battle, they will attempt to take it through the states.

  • BlackOut says:

    DD, I am referring to Clancy’s Executive Order. Where a conservative politician repeatedly references grave danger within the government.

  • David Dickinson says:

    BO, I’m not familiar with that one.

  • NateDogg614 says:

    BO, Tom Clancy’s book “Executive Orders?”

    Interesting read that. However, I just can’t visualize Alec Baldwin playing Ryan in his capacity as POTUS.

  • BlackOut says:

    Agree that would not work. On the other hand Clancy hasn’t worked for years using cover authors that exploit his name for mutual cash.

    Was an avid Clancy fan from Red October through Patriot Games. But then I think he lost his edge and hit the limits of his imagination. Good books while they lasted. He lost focus too, anyone remember his deal to purchase the Minnesota Vikings?

  • I’m so tired of the phrase “judicial activism” being thrown around by both sides whenever they don’t get their way.

    And please don’t try and tell me that the right only strikes down things that unconstitutional while the left expands the power of the government, including the federal government. Decisions such as not allowing states to regulate their own “militias” ie, the second amendment cases, the defining of SuperPacs as first amendment speech and this week’s case allowing for strip searches even when there is no actual crime ALL expanded government power over the individual. And these cases were all decided by conservative judges.

  • edmundburkenator says:

    “Liberals are a grave danger to the Constitution, the Rule of Law, and the American way of life at the local, state, national, and global level.”

    The Liberals that wrote the Constitution are now rolling in their grave…

    Buy the way, if you think Obama is a hack for saying what he said then everyone running for president as a conservative against “activist” judges is a hack.

    This door swings both ways.

  • David Dickinson says:

    At the federal level, I’d have trouble arguing that what Republicans have done is “conservative.” Both parties have expanded the authority of the federal government, and I don’t like it and it certainly isn’t “conservative.” People at the federal level like federal power. It is a problem.

    But, EB, why do you think James Madison was a liberal?

  • NateDogg614 says:

    Jon Meacham has an interesting take on the whole thing:

    http://ideas.time.com/2012/04/02/why-obama-shouldnt-declare-war-on-the-supreme-court/#ixzz1qyx5S918

    With the Supreme Court weighing the constitutionality of a central element of President Obama’s comprehensive health care reform, there’s a lot of talk (in the places where people talk about such things, usually unburdened by responsibility or firsthand knowledge) of making the court an issue in the campaign if it were to rule against the White House.

    But here is a pretty good rule of thumb for Democratic Presidents: if it didn’t work for Franklin D. Roosevelt, who won four terms and a World War, it probably won’t work for you either.

  • NateDogg614 says:

    Another interesting take:

    http://blogs.dailymail.com/donsurber/archives/53684

    President Obama is attacking the Supreme Court in a desperate attempt to salvage his presidency. The high court cannot defend itself from his pre-emptive strike against what he knows will happen: His chief domestic program is unconstitutional. In attacking the Supreme Court, President Obama is channeling Democratic governors in the past such as Orval Faubus and George Wallace. Maybe he can go total jackass and stand in front of the hospital door shouting Obamacare today, Obamacare tomorrow, Obamacare forever.

  • BlackOut says:

    We’re doomed:

    http://www.wnd.com/2012/04/michael-savage-its-do-or-die-for-america/

    Such believable sources…geez…and people buy this stuff. Ignorance and fear are more of a threat than Obama or liberals.

  • NateDogg614 says:

    “If Barack Obama is elected for another four-year term, he’ll be president for life. He’ll be the new Hugo Chavez. He’ll do away with the two-term limit and win the 2016 election with 90 percent of the vote.”

    I don’t know about THAT claim, but I have grave conerns over another 4 years of Obama, especially if Dems keep the Senate and (God forbid!) win the House.

  • edmundburkenator says:

    Yes, grave concerns…

    But at least you’ve found some MSM that agrees with you!

    Hurray!

  • BlackOut says:

    ND, lots of people listen to that type of BS and believe it.

    The rhetoric is the danger not Obama.

  • NateDogg614 says:

    No, I would say that Obama is still a danger and grave threat to our nation and its tradition of limited constitutional government (bottom line: he doesn’t believe in it!)

    I agree, however, that over the top rhetoric doesn’t help matters though.

  • David Dickinson says:

    I’d say a lot of liberals listen to their own lefty rhetoric too. However, I’ve seen the ratings for MSNBC, etc. and apparently nobody is listening to them.

    To ND’s point, I agree that Obama is a grave threat because he does not agree with our constitutional government and is actively working to undermine it. Just look at this healthcare law or subverting the 1st amendment by not allowing “conscience” provisions.

    From the moment Obama gained traction in the primaries, I’ve had one word to describe him: SABOTEUR!

  • edmundburkenator says:

    “No, I would say that Obama is still a danger and grave threat to our nation and its tradition of limited constitutional government (bottom line: he doesn’t believe in it!)

    I agree, however, that over the top rhetoric doesn’t help matters though.”

    This comment made me actually (not the internet LOL kind) laugh out loud.

  • NateDogg614 says:

    Glad I can make you laugh! :)

    Here’s part of Rush’s take on the whole thing (if you can stomach it):

    It’s really ironic to hear Barack Obama whining about legislation being decided by unelected judges. I wonder if he’s ever heard of Roe v. Wade. You talk about unelected judges imposing their own view of life on us? There’s no greater example than finding abortion to be constitutional. What about all of his czars who are unelected, who are unaccountable, who never have to be confirmed? We don’t know anything about them what they do or with whom they do it. Who elected Kathleen Sebelius to regulate one-sixth of the nation’s economy, our health care system? Who elected her? Who elected Steven Chu?

    Who elected any of Obama’s czars? Who elected the EPA to rule by fiat on carbon dioxide emissions? You see, it’s okay to ram through Congress something of this magnitude, along party lines, using legislative trickery. That’s perfectly fine, but it can’t be struck down 5-4. It can pass 219-212, but it can’t be rejected 5-4. We can ram it through Congress all day long with nobody even having read the bill, but the justices can’t reject it by a vote of 5-4. This whole notion of the human element. Throughout our legal system, the human element is expressly omitted.

    And by “human element,” I mean the emotion. Emotion, the human element is not part of a trial. It’s not supposed to be part of a trial. Now, lawyers do everything they can to sneak it in. But the law is not supposed to take that into account. The law is specifically to focus on the law, not the human element. Back in 2008 Obama said the mandate would hurt individuals. He said, “They may charge people who already don’t have health care fines or have to take it out of their paychecks. I don’t think that’s helping those without health insurance.” That was the human element, as far as he was concerned, in 2008. Now, it doesn’t matter.

  • NateDogg614 says:

    Ed,

    I am interested in your take. My comment made you laugh. In all seriousness though: What evidence can you cite that Obama’ DOES actually believe in the American tradition of limited constitutional government?

    Anything at all?

  • BlackOut says:

    I just don’t buy the line that Obama doesn’t believe in the Constitution. That just is way out there and only said for political gain.

    With that said, as has been our countries history many many people have debated many many different aspect of the Constitution. That will never change. But to actually come out and say Obama doesn’t believe in the Constitution is nothing but political.

  • NateDogg614 says:

    BlackOut, I said nothing about his not believing in the Constitution, although I did say that he doesn’t believe in the American tradition of limited constitutional government.

    I put the question to you as well: can you cite anything that proves that Obama DOES believe in that tradition?

  • edmundburkenator says:

    Nate, what do you believe “limited government” means? Then tell me what American “tradition” you are talking about. You can leave out the bad American traditions…

    With a little research you’ll see there there are quite a few forms of limited government. We all agree a limited government is good (I really hate those kings and dictators), but our polity gets to decide the role the government can take in addressing big problems: justice, common defense, general welfare (ick, I know you hate that word but they stuck it in there), domestic tranquility, securing liberty, etc… sounds like a pretty busy limited government, doesn’t it?

    Our debate should be about the role the government takes within the limited government we have.

    The problem with many who debate this is they are debating the wrong premise. You are really wanting a very small government within our limited government. Fine. But no one is trying to take your limited government away. They want a larger government within the limited framework.

  • NateDogg614 says:

    Way to answer my question with another question.

    That aside, limited government means within the framework of the Constitution. Forget all that slavery crapola…we fought a way to bring down that injustice and passed a Constitutional Amendment or two to ensure that it stays down. No one’s talking kings and dictators (however, some would argue that Obama’s trying to sound like one from time to time) and yes, our politics are in place to decide the role of government. However, while “general welfare” is actually two words and not one, I would note that the preamble to the Constitution says “promote the general welfare” NOT “guarantee the general welfare.” If it said guarantee, then one could make the case that socialist style-health care and cradle-to-grave nanny state-ism is constitutional.

    Our biggest problem as of late is that both sides (save the more conservative senators and members of Congress) are expanding the size of the government, rather than looking to confine it. The problem with trying to create a larger government in the limited framework is the 10th Amendment: If the constitution doesn’t provide it in the framework on the federal level, then it should be left up to the states. If someone believes that it should be spelled out in the Constitution, then there’s an Amendment process for that. All it requires to pass muster and ratification is 2/3rd of the houses of Congress and 3/4th of the states. A tall order to be sure, but if it’s REALLY that important, then it would be ratified.

    OK, I answered your question, I think for the most part. Now, do me a solid and answer mine: What evidence can you cite that Obama’ DOES actually believe in the American tradition of limited constitutional government?

  • liz says:

    I am always amused by people’s different definitions of “limited” government.

    In reality all of our definitions are the same:
    1) We don’t want laws regulating the things we want to be able to do and
    2) We do want laws regulating the things we don’t want other people to do.

  • NateDogg614 says:

    Liz, that’s one way of putting it. However, I’m opposed to overkill on the regulations. Obviously one needs to make sure that food isn’t poisoned and that there are certain safety standards, but let’s not go NUTS!! (Yes, I’m looking at you, Obama’s EPA!)

  • liz says:

    Obama’s EPA has gone nuts? I beg to differ. I like being able to breathe clean air, and drink water that’s not poisoned, and eat food that’s not contaminated. And since they discovered last week that EPA approved pesticides are what have caused bee-colony collapse, I’m thinking the EPA isn’t careful enough.

  • edmundburkenator says:

    I was referring to welfare, not general welfare. But I’m glad you can count.

    You are missing my point because you want to disagree rather than debate. I have no doubt Obama wants a government that has some roles in society that you disagree with, but he doesn’t want whatever “liberal” dystopia you are dreaming up either.

    You still did not answer my question about the American tradition of limited government. What is it you mean by that? Do you mean the tradition of Andrew Jackson? FDR? TDR? Lincoln? I really don’t understand what tradition you are specifically referencing.

    It seems pretty important to understand that before I can then prove to you that Obama is part of it or “believes” in it.

    In this specific instance the individual mandate is a market solution — certainly not a universal health care solution like you have in other limited governments (Britain). Even those limited governments sustain their health care, along with their defense, etc…

  • Cato the Elder says:

    Really good article in the Post today about how the National Security State™ and the Welfare State™ are siblings: http://www.washingtonpost.com/opinions/the-war-on-terror-and-obamacare-mirror-images-of-the-same-issue/2012/04/02/gIQAaDlhrS_story.html

  • G.Stone says:

    “Way to answer my question with another question.”

    It has been said that getting specifics from EB is like nailing jello to a tree. I would have to agree.

    ” Andrew Jackson? FDR? TDR? Lincoln? ”

    No, Hell NO, Hell No again, and no with a caveat on Lincoln.
    Because these fellows screwed the pooch does not mean, the original intent ( read everything Jefferson wrote about Gov’t and the nature of man as he administers said gov’t ) should be abandoned, ignored, hijacked, or tortured.

    And please stop playing rope a dope on Obama. You have spent the better part of 3 years making excuses for this president. You don’t like Obamacare ( maybe that has changed ?, I can’t keep up) yet defend the failed premis he and his architects used to craft the thing.

    The issue of Obamacares pales in comparison in magnitude to anything crafted by your above list of Presidents with the exception of FDR. I would suggest LBJ be added to your list.

  • G.Stone says:

    5,4,3,2,1 Cue the ” who is going to pave the roads argument “

  • G.Stone says:

    “I like being able to breathe clean air, and drink water that’s not poisoned, and eat food that’s not contaminated. ”

    So do I, and everyone else on the planet. Nobody wants dirty air and water, to suggest otherwise is silly. The question is how do we BEST insure resources are looked after. The EPA is far from the best solution . The EPA is a wasteful bloated agency thats performance since its inception has been marginal as far as real results, and continues to be a pit in which we throw money. Thanks for nothing Richard Nixon.

    The EPA is the poster child for that old saying – The Road to Hell is Paved with Good Intentions.

  • edmundburkenator says:

    I’m so glad G is here. He loves Jello.

    If nobody wants dirty air and water, then how does the air and water get dirty?

    See Nate, as far a G goes, these presidents are not part of the American tradition of government (in it’s limited form), or at least not the “tradition” that G would like.

    Maybe you should stop using the word tradition or at least concede there are a number of traditions — ones which you like and ones which you don’t like — all within the confines of limited government.

  • edmundburkenator says:

    Cato, on a related note, you can get strip searched now if you are under arrest.

    “The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.”

    http://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html?_r=2&ref=us

  • Cato the Elder says:

    Yes, and Arizona just passed a law against hurting people’s feelings on the internet. And it will be signed by a motherfucking Republican Governor, and Tea Party hero might I add.

    Disgraceful.

  • Liberal Anthropologist says:

    I wish I wasn’t so damn busy right now.

    “And since they discovered last week that EPA approved pesticides are what have caused bee-colony collapse, I’m thinking the EPA isn’t careful enough.”

    I wish “they” would discover a cure for ignorance of science so the EPA and its supporters could be given it.

    The EPA does NOTHING that keeps the air clean or water clean. I challenge anyone to prove their regulations have changed natural trend lines. They are a waste of money. Keep it illegal to pollute. Make the penalties harsh. But end the idiotic regulations. Regulations are not needed to make things safer. Laws sometimes are, but the only ones that work are simple laws. The complexity of EPA regs makes them meaningless and wasteful.

    And seriously lefties… pick up a science book. Your lack of understanding of basic math and science is behind a lot of nonsense.

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