Sunday, June 28, 2015

"Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

Andrew McCarthy writing for National Review, Let's Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One.

This is why the Supreme Court has become the lowest court in the land and I am not trying to be cute nor funny. Seriously, it really does mean you couldn't manage things yourselves and now your case has sunk to its lowest possible place of adjudication by the Three Stooges X 3. McCarthy makes the point that supple minds however likeminded will often disagree and sometimes dramatically on the basics of the constitution, its canons of constructed laws, the gray area of separation of powers, the origin and consistent meaning of words and phrases, and very much else, he cites as example two originalists Scalia and Thomas debating about Jerusalem.

They don't. Because their minds are not supple.

Roger Kimball asks, when was the last time you heard such a spirited debate on the left side of the Supreme Court? Go on, Roger will wait.

Roger doesn't say this but he creates an image in the minds of his readers of our government devolving to a single legislative unit and not three branches as designed, rather, legislation originating from the Executive branch reworded and fixed into law by Court, all three branches legislating, with results to a system resembling more closely the fictional Idiocracy. This is how the John Roberts court will be remembered. Forever.

Andy McCarty writes and Kimball reflects something that clarified my understanding of all this. What the justices did was kill federalism.

These minds, supple as bricks, their storied Constitutional acumen so much sharper than our own, just now all by themselves made the 10th Amendment to the U.S. Constitution nil. That is what the Roberts court did. We are ruled by a lividly partisan claque of nine.

The law that Congress wrote states says contains the text that in order to to qualify for healthcare subsidies people must be "enrolled through an exchange established by the state." But the law that the Supreme Court wrote Thursday says that "established by the state" didn't mean "established by the state." It meant "established by the federal government."

So Constitutional scholars, what becomes of the 10th Amendment that states "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." Kimball writes,  Chief Justice Roberts might want to gloss as "are reserved to the federal government, not the states, and certainly not the people."

The 10th Amendment is nil. As if it never was. Just like that. Roberts Court, the whole lot, this is what will be remembered.

22 comments:

Meade said...

This is where you said "I flat don't care [...]" : http://pjmedia.com/instapundit/209582/?show-at-comment=1511424#comment-1511424

Bleach Drinkers Curing Coronavirus Together said...

Boy. They sure have a lot of legal nullities writing for them, these guys do. Someone get to Andy the memo where the 14th amendment trumps the 10th. The 10th was operative before the Civil War. The 14th - after. Rights had to be guaranteed equally to every citizen regardless of whether they belonged to "the people" or "states" (such as the one used under the 10th to hold slaves and maintain Jim Crow). But I did hear that guy was good in 16 Candles. Maybe he should have stuck to his old career, dating Molly Ringwald and whatever.

The recent volume of conservative attack on every outcome decided by the Civil War is deplorable. But it's good to know that Chip would relinquish his rights to the state of Colorado. Maybe Colorado can decide that gays like him shouldn't have guns or free speech, either. Where is the 10th amendment when it can be useful for a change?

chickelit said...

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

The conservative justices often vote as a block as does the Liberal block, The remarkable thing about Oberbefehl was that four dissenting justices all wrote their own separate opinions, showing that they do not think and write monolithically. Has there ever been a decision wherein the liberal justices all wrote separate dissents? Serious question for SCOTUS scholars.

bagoh20 said...

Both of the above comments miss Chip's point, well the first one is really just trying to imply a lie.

Chip's point is about the process, the court, and the pretending. The court is in fact a political body - divided, but political, and only one side of it really debates arguments. The other is just there as reliable placeholders acting as a "progressive" ratchet. The conservative side is clearly less reliable in it's preservationist role. Wisdom requires that changing very long-held principles should be the much harder road than preserving them, otherwise they aren't really principles at all, they're fads. This is why Chip's guns and free speech should be safe, but are they in the hands of such a court?

edutcher said...

The Lefties, especially the short shortstop and the wise Latina, would do it anyway, but there would be quick impeachment hearings is they suddenly developed a brain.

chickelit said...

The conservative justices often vote as a block

You mean Thomas, Alito, and Scalia, right?

Kennedy (never trust anybody with that name) is the biggest attention whore in DC, wanting everybody to guess which way he swings.

Roberts, well, he's in the bag.

And somebody tell Ritmo, one amendment does not necessarily trump another.

The 14th, like the 1st and 4th is cherry-picked out of all recognition to give the Lefties a fig leaf for their nonsense.

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Rabel said...

Ritmo, you're right that the 14th trumps the 10th (to some extent). But that disregards the issue at hand. That issue is whether or not a right to same sex marriage is contained within the 14th. The court decided that it was and used due process as their justification. That's not their job. If Congress made such a decision then the 14th would force their judgement on the states. Congress did not make that decision, in fact, by passing DOMA they showed clear intent of the opposite (legislative intent, of course, is the justification in the Obamacare decision).

The court wrote a new law. Accept that and agree with the law if you wish, but you can't honestly deny the unconstitutional overreach by Kennedy and the 4 liberals in pursuit of a social policy they support. This, judicial legislation, is the danger Scalia warned of in his dissent.

Bleach Drinkers Curing Coronavirus Together said...

The court is in fact a political body - divided, but political, and only one side of it really debates arguments.

What body or person isn't? Certainly not the clergy that remains the most powerful force against the decision. If you break it down, their opposition is essentially a need to maintain a population of self-loathing Catholics who are forced to feel that way on sexual grounds, giving them the only rationalization for accepting lifelong celibacy as the alternative to being a "deviant" who simply wants the same recognition of their own lifelong romantic commitments granted to everyone else. After the pill, the only people willing to believe that lifelong celibacy was a great demonstration of fidelity to Catholic leadership were gays and pedophiles. With this decision, the church is just left with pedophiles willing to be recruited into its ranks of irrational dogma enforcers. If the RCC were capable of rules allowing for better leadership, one of them might have figured this out by now and spoke up for it. But such is the damage done by dogma. Either way, you can see that the opposition has an almost entirely political rationale to it. That's not a reason for denying rights to others. Privileging one class of citizens at the expense of another simply to placate the strange rules of a declining institution.

That issue is whether or not a right to same sex marriage is contained within the 14th. The court decided that it was and used due process as their justification. That's not their job.

What are you talking about? The 14th doesn't spell out and shouldn't have to spell out every conceivable right to be equally enforced. Therefore it's a general provision. How would those writing it know all the rights that states would in the future accept on behalf of the people? It wouldn't and it couldn't and it didn't. So the only way to interpret it is to accept that in the absence of some compelling conflicting right, it applies. I guess if you think rights are not capacious things, its possible to enumerate them. But that logic flies in the face of even how the 10th was written. The framers saw our rights as vast and potentially innumerable. We shouldn't have to demand that every one of them be mentioned explicitly in order for some amendment to apply them.

If Congress made such a decision then the 14th would force their judgement on the states. Congress did not make that decision, in fact, by passing DOMA they showed clear intent of the opposite (legislative intent, of course, is the justification in the Obamacare decision).

I have no idea what you're saying here. DOMA was a congressional law forcing a regime onto the states. But it had already been stricken down.

The court wrote a new law.

Courts don't write "new" laws. They interpret those that are there. Interpretations change because new facts and arguments come to light. That's just the way things go in a society that doesn't regress. You could equally say that the Heller case wrote a new law granting gun rights to people, instead of to the militias as it had been interpreted at every point before. Or that CU was a "new" law giving rights to corporations that they didn't have before. They're just interpretations, and this business of accusing justices of legislating from the bench works both ways.

Evi L. Bloggerlady said...

Did you notice how fast the rainbow lights went up on the White House. Like they knew before the decision.

Rabel said...

"What are you talking about? The 14th doesn't spell out and shouldn't have to spell out every conceivable right to be equally enforced. Therefore it's a general provision. How would those writing it know all the rights that states would in the future accept on behalf of the people?"

- Check section 5 of the 14th.

1)"I have no idea what you're saying here." 2)"DOMA was a congressional law forcing a regime onto the states." 3)"But it had already been stricken down."

- 1) Yes, you do.
- 2) No, it wasn't.
- 3) No, only in part.

"Courts don't write "new" laws."

- Glad to see we agree. Tell Kennedy.

edutcher said...

Rabel said...

Ritmo, you're right that the 14th trumps the 10th (to some extent)

Not really.

The clear intent of the Amendment is to protect freed slaves from having their civil rights abused - something that Ritmo's party never let stand in its way when it abused the civil rights of the freed slaves.

And, if you want to cherry-pick, it should also outlaw abortion, which Ritmo's party never allowed to stand in its way.

But the deeper question is was marriage ever a right?

It wasn't, given all the restrictions that even white folks had to surmount. You couldn't marry your cat, your Uncle Harry - if he were a parent's brother, or the defensive line of the JV football team.

Face it, when the Court pulls out the due process clause, they haven't got a reason, just an excuse.

And it's fascinating Ritmo is so afraid of the Catholic Church. But then God is Catholic, so we know what happens to him.

Evi L. Bloggerlady said...

Did you notice how fast the rainbow lights went up on the White House. Like they knew before the decision

Orrey G.Rantor said...

"Someone get to Andy the memo where the 14th amendment trumps the 10th. The 10th was operative before the Civil War. The 14th - after. Rights had to be guaranteed equally to every citizen regardless of whether they belonged to "the people" or "states" (such as the one used under the 10th to hold slaves and maintain Jim Crow)."

By your logic, since the 16th amendment allows the federal government to discriminate on how much people pay in income tax, there is no general provision for equality inherent in the 14th amendment. The 14th would be just about who is a citizen. Originally the constitution said taxation had to be equally apportioned across the citizenry based on the census. Last I checked 16 comes after 14.

"The 14th doesn't spell out and shouldn't have to spell out every conceivable right to be equally enforced. Therefore it's a general provision."

And yet the 2nd amendment says "the right to keep and bear arms shall not be infringed" has been interpreted rather generally since at least 1934 to give the feds the right to infringe as they well please along with various states doing so. New York since 1911. If its a general provision, the 14th should uphold conceal carry across all states. Try taking your legally permitted gun in Tennessee into the Statue of Liberty in NYC. They wanted to make a felon out of the woman who did that. Try checking in your gun after a night lay over in NYC or NJ. They'll arrest you for violated their state laws by having an non-permitted gun. NJ went after a woman from PA because she admitted to having a gun with her in her car as she was stopped for speeding.

Then there is Obamacare. If we're all equal under the law, how come I might have to pay more for my health insurance depending on where I live? Doesn't that violate the 14th amendment? Some unions got to keep their cadillac plans longer than others. Special treatment for some, higher bills for others. Equality!


So yea, that general provision is rather vague and seems to be imposed rather selectively. How convenient for whoever happens to be running the government.

Bleach Drinkers Curing Coronavirus Together said...

- Glad to see we agree. Tell Kennedy.

You go tell that to Scalia and Roberts, first.

Bleach Drinkers Curing Coronavirus Together said...

Really? DOMA wasn't a law passed by Congress telling states that they had a legal opportunity to discriminate? I understand that inviting discrimination isn't forcing it, but it was passed by Congress and the states were still the ones issuing marriage licenses based on those guidelines, as they always are the ones in that role. The federal government doesn't issue marriage licenses.

Trooper York said...

The point of the article is that conservative Presidents should view the Court as a political body and not a judicial one. That seems to be correct. At one time Justices were appointed who were not law professors but politicians like William Howard Taft or Hugo Black. The Senate Republicans should use the nuclear option and end the filibuster. Then they should nominate and confirm real Conservative politicians to the Court. Ted Cruz for one. They should find out what Obama has on Chief Justice Roberts and use it to force him to resign to "spend more time with his family."

Chief Justice Ted Cruz has a nice ring to it.

Judicial review is a mugs game. It is time for a change.

Rabel said...

DOMA only applied to federal law. It didn't limit a state's right to issue same sex marriage licenses. Bill Clinton told me so.

Orrey G.Rantor said...

DOMA was political BS to placate various voter bases (keep people in office) and as was speculated on by many at the time as pointless and would not be enforced if push came to shove. Many states went on to nullify it by passing their own gay marriage laws. Nullification for some laws good, others bad and unlawful. Traitorous even! Secession is sedition! Its revolutionary! Badthink!

I would view DOMA as unconstitutional given the 10th amendment. That said, with the obamacare rulings (2012 and this new one) and the gay marriage ruling clearly give the Feds the right under the "general provision" of the 14th.

Of course, the income tax discrimination was voted on by the states and made an amendment to the constitution. Thus it has a bit more eh, punch than a putsch by 5 judges (along with other appeals court judges). The income tax was originally sold as just a tax on the rich by the way. So all those people worried about churches being sued and forced to perform gay marriages have no reason at all to be concerned. Especially not with the way tax laws have been adjudicated over the last 100 years.

Anyone need cheap hard drives? Freshly erased, no tax records or emails on them. All ready for your porn collection and cat pictures.

Chip Ahoy said...

I changed the language a bit to be nicer. Kimball wrote (I forget who is doing the talking, I think Kimball himself) "when was the last time you saw this sort of disagreement between like-minded jurists on the sinister side." And as reader I'm imagining all the readers imagining all readers notice the glint of stiletto, Ha!, good one.

But I never thought about it. I could only imagine Ginzburg dozing. And dozing. And dozing. Then having a little nap. Then going to bed for a good rest. And I am not familiar with that finely pointed discussion about Jerusalem. How could I be without also being a supreme court watcher fan person that reads all dissenting opinions on every little thing? Come on. I think he was talking to other supreme court watchers.

At any rate, from what I'm reading they're useless, or much worse than useless, very useful for two crime syndicates that have institutional capture.

This is possible by your support. Without support the two parties are nothing. The people themselves are to blame and fully to blame for all that we see. And what we see is the straight up perversion of all three branches of government. We've all seen this last round all three branches behave as legislators and not behave as checks on one another. This is not how our system works. It is not how our system is designed. It has been perverted. Perverted by political parties. That would dissolve without constant life-support. Whatever is won by emergent tribalism, much greater is lost.

Chip Ahoy said...

I'll sit here on a stool in the corner of the elementary school, and face the class and wear this cartoon dunce cap while you carefully explain to me how an infant born into society automatically $150,000.00 in estimated debt and climbing, and in need of healthcare with costs ever rising, and in need of education for a large part of his/her/its/hisers/heris life with costs escalating, is not the exact same thing as slavery.

Goes like this: born, BANG! debt, costs+, costs+, costs+, costs+, costs+ work to sustain state, die.

How is that not slavery? How is government unlike a plantation? What has changed fundamentally between master and servant except the Plantation location, and now it's everybody born and brought into the country and not just properly bought slaves? What is the fundamental difference in relationship there? This dunce cap should come with a propeller. You guys suck.





edutcher said...

Chip Ahoy said...

I changed the language a bit to be nicer. Kimball wrote (I forget who is doing the talking, I think Kimball himself) "when was the last time you saw this sort of disagreement between like-minded jurists on the sinister side." And as reader I'm imagining all the readers imagining all readers notice the glint of stiletto, Ha!, good one.

I like his use of the Latin there. So apropos.

At any rate, from what I'm reading they're useless, or much worse than useless, very useful for two crime syndicates that have institutional capture.

Chip, you may well be the smartest guy here.

Joe Biden, America's Putin said...

I did notice that.

Orrey G.Rantor said...

How is that not slavery? How is government unlike a plantation? What has changed fundamentally between master and servant except the Plantation location, and now it's everybody born and brought into the country and not just properly bought slaves? What is the fundamental difference in relationship there? This dunce cap should come with a propeller. You guys suck.

Oh brave new world that has such (wo)men/it/otherkin in it.

JAL said...

I want my Republic back. They can keep the bananas.