Recently in Imperial Judiciary Category

President Barack Obama is laying groundwork to make the majority-conservative Supreme Court a campaign issue this fall, taking a political page from Republicans who have long railed against liberal judges who don't vote their way.

The emerging Democratic strategy to paint the court as extreme was little noted in this week's hubbub over Obama's assertion that overturning his healthcare law would be "unprecedented."

His statement Monday wasn't completely accurate, and the White House backtracked. But Obama was making a political case, not a legal one, and he appears ready to keep making it if the high court's five-member majority strikes down or cuts the heart out of his signature policy initiative.

The court also is likely to consider several other issues before the November election that could stir up Obama's core Democratic supporters and draw crucial independent voters as well. Among those are immigration, voting rights and a revisit of a campaign finance ruling that Obama has already criticized as an outrage.

"We haven't seen the end of this," said longtime Supreme Court practitioner Tom Goldstein, who teaches at Stanford and Harvard universities. "The administration seems to be positioning itself to be able to run against the Supreme Court if it needs to or wants to."

The underlying premise of this gambit isn't anything new.  The Left politicizes everything, after all, and the courts have been one of their primary avenues of forcing their extremist agenda on the public against its will.  What's novel is that they have heretofore only once before in the modern (post-WWII) era been in a position of sufficient dominance to be able to do so through the ostensibly democratic process (the Great Society blitzkrieg of 1965-66). In the 2009-10 biennium they were again, and they did, and now the judicial tables are turned.  Now it isn't the courts writing leftism into the law, it's the courts examining leftism already in the law and finding it partly or wholly constitutionally wanting.  This is a front on which the Dark Side simply has no experience playing defense.  Remember one of the universal tenets of socialism: History can only unfold in one direction.  It cannot reverse direction or change course.  Anyone or anything that attempts to affect such a course correction is, by definition, a heretic, an infidel, and must be destroyed for, as Emperor Palpatine told Luke Skywalker, "their lack of vision."

I think this sums it up quite nicely:

University of Texas Law School professor and Supreme Court scholar Lucas Powe said Obama's original statement suggests he probably knows the law is in trouble and is seeking political high ground.

"My instinct is that he was laying predicate for a campaign statement," Powe said. "People said he was threatening the court. You can't threaten the Supreme Court."

Well, Red Barry did.  For all the good it'll do him.

OTOH, maybe the idea was, indeed, to alienate Justice Kennedy into joining with the Constitionalist block to expunge ObamaCare like the tyrannical cancer it is.  Maybe False Messiah has finally reached the point where maintaining his hold on power has become more important to him than even the blessed, righteous Cause to which he's dedicated his life.  Almost as if when on His knees in the Garden of Gethsemane, Jesus had prayed, "My Father, if it is possible, let this cup pass from Me; yet not as I will, but....aw, screw it, I'm gonna go genetically resequence those blind guide Pharisees into lobotomized three-toed sloths and then fly to Rome for My appointment with destiny!"

Hey, that's what Barry doubtless thinks Christ SHOULD have done.  But then he IS the "Third Adam," y'know.

At it's black, cynical heart, though, this is just one more whip with which to lash his lunatic fringe base into turning out this year - and for a helluva lot more than just voting, if you know what I mean.  If you think the Occupy [ahem] "movement" was bad before, you ain't seen NOTHING yet.

I hope Chief Justice Roberts and Justices Scalia, Thomas, and Alito and their families have round-the-clock security.  I fear the attacks coming their way may well not be limited to the "campaign" variety.

Turning and turning in the widening gyre
The justices cannot hear the respondent;
Things fall apart; the left cannot hold;
Tea Party anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of dependence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Surely some revelation is at hand;
Surely the Second Term is at hand.
The Second Term! Hardly are those words out
When a vast image out of Olympus
Troubles my sight: a waste of desert sand;
A shape with Fred Flinstone's body and the sardonic Eyebrows,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Wind shadows of the irresolute Justice Kennedy.

The darkness drops again but now I know
That ten months of arm-twisting and log-rolling
Were vexed to nightmare by unprecedented activism,
And what rough beast, its hour come round at last,
Slouches from Massachusetts or Michigan (depending upon which Cadillac was available) to be born?

~  ~  ~

Maybe Justice (and ex-Obama Solictor General) Blubberstopholes leaked the preliminary O-Care vote to him, maybe she didn't; but either way, this is a man that needs twin pallets of deodorant and Depends:

The [Fifth Circuit Court of Appeals] panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick-both Republican appointees-remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Judge Smith then ordered the Department of Injustice & Revenge to submit by Thursday a minimum three-page, single-spaced essay stating its position on judicial review, or I guess The One or Eric The Red would have had to miss recess or something.

That might have oversold the point.  But leave it to the Regime to take a situation inadvertently turning in their PR favor and swat it back like a Jimmy Connors return of serve:

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation...

The question posed by the Court regarding judicial review does not concern any argument made in the government's brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

In considering such challenges, Acts of Congress are "presumptively constitutional," Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong." United States v. Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the "congressional judgment" at issue was "entitled to a strong presumption of validity"). The Supreme Court has explained: "This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power." Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-22i, 346 U.S. at 449.

In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) ("Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality."); Beach Communications, Inc., 508 U.S. at314-15.

Roughly translated, Eric The Red's response distills down to this: "Sit down, shut up, and stop wasting our time.  Barack Obama is your ruler and he has given you your orders.  Your job is to rubber-stamp ObamaCare just like the 'democratically-elected' 111th Congress did, and if you don't, there will be severe consequences."  Leastways, that's how I interpret the "unprecedented, extraordinary" argument that Supreme Court Justices are obligated to bow to the expressed will of a Congress that was cashiered a year and a half ago for foisting this monstrosity on the American people against their vehemently-expressed will, and whose replacements in the House have already voted to repeal it.

It's more arrogance, of course; but it's also more fear.  These people know that their greatest creation is about to be hoisted on the "judicial review" petard their ilk has used for decades to write their wacko agenda into the law extra-democratically.  Rarely (if Justice Kennedy screws his head on right) will irony and justice have collaborated this deliciously.

I just wish I could see the look on Red Barry's face a couple of months from now.

Democrats are lashing out at conservative Supreme Court Justice Antonin Scalia for alleged bias during the Obamacare hearing, even though the court's four liberal justices were generally seen as more effective in pushing for the law than the Obama administration's own attorney.

Two comments Scalia made during the mammoth three-day hearing have been picked as showing he has allegedly already made up his mind and will vote to overturn the Affordable Care Act.

He used the term "Cornhusker Kickback" to refer to a $100 million Medicaid payment to Nebraska proposed to secure moderate Democrat Senator Ben Nelson's vote, and then said the justices could not be expected to read through all 2,700 pages of the law as they wrestle with its constitutionality....

[Retiring Nebraska Democrat Senator Ben] Nelson, who is not standing for reelection in November, said Scalia seemed not to know that the so-called Cornhusker Kickback was stripped from the bill before it went into effect. "I am concerned that Justice Scalia's comments call into question his impartiality and instead suggest judicial activism," he told The Hill.

Nelson was joined by other senior Democrats. Vermont Senator. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, said Scalia's comments were typical for him. "That's the way he always is. This after all is the man who helped push through Bush v. Gore, which every historian is going to say was a crazy thing."

And Senator Dianne Feinstein of California called Scalia's comments "flip and specious."

"Flip and specious," Senator?  I'd say those adjectives apply a lot more to Leaky's take on Bush v. Gore than anything Justice Scalia has ever said.

It is reflective of the triumphalist mindset that holds the Left in an intellectual vice grip to this day.  Libs are blindly and unalterably convinced of both the efficacy of their discredited, disreputable religion of statism and of their own unchallengable moral supremacy that entitles them to force it on everybody else "for their own good".  Socialized medicine - socialized anything - ALWAYS fails, NEVER delivers on all its utopianist pie-in-the-sky promises, ALWAYS produces the precise opposite results, and consequently MUST be corrupt and coercive and dishonest.  It is axiomatic; it is the repeated lesson of history.

And the biggest suckers of all are leftists themselves.

Barack Obama didn't get elected to nationalize the U.S. health care sector.  He never ran on nationalizing the U.S. health care sector.  The American people did not and never did seek the nationalization of the U.S. health care sector.  We told him not to; we begged him not to; yet he and his merry band of authoritarians did it anyway.  It generated a grassroots movement that annihilated the Democrat House majority and crippled its Senate counterpart.  Two years later it's still massively unpopular and seen as a blatantly unconstitutional power grab even by a (bare) majority of Democrats.  Not that they care, of course; and the ones that don't see it as unconstitutional simply redefine that term to mean "advances the hard-left agenda".

Yet to this very week lefties were utterly convinced that the SCOTUS would uphold ObamaCare in its entirety without having to give it even a sidelong glance.  Rubber stamp city.  Including Justice Scalia.

This is a bubble of extential cloture that not even a "rod from God" could penetrate - but which Olympus' constitutionalists finally did.

And Democrats are alternately panicked and outraged by it.

Short of the High Court burying this execrable monument to unAmerican tyranny so deep the worms can't find it, that'll be the best medicine of all.

Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama's national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law. ...

Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more "extreme" than simply striking down the whole law.

You will recall that in their haste to ram this toxic, jackbooted boondoggle down our throats, congressional Dems did not think to include a severability clause, which would have ensured that if part of the law was nullified as unconstitutional, the rest of it could have remained.  Now this doesn't require the High Court to knock down all of it, but it leaves the door open to that outcome.

Since the latest conventional wisdom is that the individual mandate is deader than a smelt (remarkable given that before this week the conventional wisdom was that O-Care would be unanimously upheld), it has become imperative for the law's defenders to do everything they can to get the justices to sign on to salvaging the leftovers - which led to this hilarious smackdown from Justice Scalia:

The Regime's answer, of course, is, "Yes, your Honor, we do expect you to read through all 2,700 pages like you were doing six months' worth of grocery shopping at the local Costco supermegastore."  Or it would have been if Verrili had had the balls to piss off Justice Scalia further.

I've always thought that was one of O-Care's built-in defense mechanisms.  Congressional Dems boasted at the time that they hadn't read the damn thing - remember Crazy Nancy declaring that they would need to pass it so the rest of us could see what was in it?  And it really didn't matter what was in it, they said; all we needed to know is that it was like the David Bowman Starchild thing said about the impending ignition of Jupiter in 2010: The Year We Make Contact: "Something wonderful."

The irony may turn out to be that that very windiness and complexity, combined with the missing severability clause, ends up taking down the whole thing - or upholding it in its entirety.  Because Justice Scalia is right: Ain't no way they're going to do Nancy Pelosi's homework two years after the fact.  What's Optimus Prime's famous line to Megatron?  "One shall stand; one shall fall."

Jeff "PanicMan" Toobin has downgraded his forecast from "train wreck" to "plane wreck":

I'm not quite so....emotionally unstable about the eventual outcome.  Seems pretty obvious the vote will be 5-4, with the winning side being determined by which side of bed Justice Kennedy gets out of today or tomorrow.  But there won't be any smorgasbord approach to this landmark ruling - either it'll all stand, or it'll all fall.

Better stock up on popcorn - and smelling salts.

Solicitor General Donald Verrilli, Jr., who made the Obama administration's case for the constitutionality of the individual mandate in the healthcare law Tuesday, was upbraided by Supreme Court Justice Antonin Scalia after he flubbed an exchange with Justice Elena Kagan.

Scalin interrupted Verrilli, tersely telling him, "we're not stupid."

At the time, Kagan, a former solicitor general appointed by President Obama to the high court, was agreeing that young people should be required by the federal government to purchase health insurance because eventually, others will subsidize their health care in the future.

But Scalia shot back, arguing that young people will make the decision to buy health insurance eventually and do not need to be forced by the federal government to engage in commerce....

It isn't difficult to see the appeal of the Anti-Injunction Act dodge; the Regime knows that the longer O-Care remains in place, the lesser the chances of it being struck down or repealed.  They also know that early next year is the effective point of no return.  Consequently all they care about is stalling long enough for the point to be reached.  They could care less how they do it.

Should those of us who see what's left of the United States Constitution as something to which the term "double-ply" most definitely does NOT apply be encouraged by the skepticism displayed by Justices Ginsberg and Breyer?  Ace doesn't think so:

I don't put a lot of stock in "signalling" like that, because justices sometimes beat up on the side who they are inclined to agree with -- testing the position they lean towards, seeing if it can stand up to scrutiny. Plus, it might look a lot different in the written briefs.

Indeed.

Personally, I think the Supremes will be looking for any plausible hook they can find for punting on this issue.  The Roberts Court has had a notable distaste for the prospect of wading into overcharged, hyperpartisan constroversies, predating it going back to at least Bush v. Gore a dozen years ago.  The Chief Justice takes a minimalist view of judicial power, preferring to defer to the political branches.  Hard to see them wanting to be the spark for the latest partisan conflagration.

OTOH, the DID take the case, one has to assume, because the evisceration of the final tatters of the Commerce Clause was so outlandishly egregious - a congressional oligarchy at best, a presidential dictatorship at worse, most likely a combination of the two - that some sort of jurisprudential limits had to be re-established, within which the political branches can then sort this mess out.

In short, they may not wanna, but they pretty much gotta.

Exit question: You know who this stands to benefit, right?