The recusal red herrings

posted at 2:30 pm on November 15, 2011 by Ed Morrissey

Recusal red meat — it’s what’s for dinner these days, now that the Supreme Court has decided to review ObamaCare in this session.  It started with ObamaCare advocates demanding that Clarence Thomas recuse himself from any case review, thanks to his wife’s conservative activism at the Heritage Foundation, among other organizations.  The Right responded, with more relevance, by demanding a recusal from Elena Kagan, who worked in the Obama administration as Solicitor General while ObamaCare was being drafted.  Needless to say, neither justice has volunteered for recusal.

Somehow, though, this doesn’t look like a game changer:

On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com’s parent organization, and to Judicial Watch.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails. …

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed–and which became the target of legal challenges–while Kagan was serving as Obama’s solicitor general and was responsible for defending his administration’s positions in court disputes.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

CNS News reported this on Thursday, but it’s getting a lot of play today on the Right.  Carrie Severino sums up the case for Kagan’s recusal at NRO’s Bench Memos and a white paper on the topic.  It’s worth a full read — and this e-mail doesn’t play a notable role in Severino’s reasoning — but her conclusion demonstrates why Kagan likely won’t recuse herself:

Justice Kagan is well acquainted with the recusal process. In her first term on the Supreme Court she recused herself from 29 of the 82 cases decided on the merits – over a third of the Court’s oral argument docket – because of her previous work as Solicitor General.  She has recused herself from even considering at least 69 cert-stage cases so far this term.  U.S. Dept. of Health and Human Services v. State of Florida, et al. promises to be the most important Supreme Court decision in a century, with broad implications for the role of the federal government and the very nature of our constitutionally limited government.  In order to secure the integrity of our Courts and of that decision in particular, Justice Kagan should recuse herself from ruling on the case.

Kagan has been exceedingly conscientious about recusals, perhaps more so than necessary.  It’s safe to say that such scrupulous adherence to the judicial canon will work in her favor when she argues — or more likely her defenders, as Kagan is unlikely to directly address these calls — that she has no need to recuse herself in this case.  And there is little doubt that this is the most significant case of this Supreme Court term, or perhaps any court term since Wickard v. Filburn.  This case gives the court the opportunity to either tighten the leash on Congress and enforce constitutional limits on its power, or simply unleash Congress entirely to regulate every last bit of our lives.  What Supreme Court justice would willing walk away from that argument and opportunity?

That is exactly what it would take, too.  The only controlling authority for the Supreme Court on matters of recusal is … the Supreme Court.  Congress cannot order a recusal, although they can certainly put some pressure on individual justices to recuse themselves.  With a case like this, it would take wild horses to drag a justice away from an opportunity to put a mark on history in either direction.

In other words, no justice on this court will recuse themselves — and everyone knows it.  The arguments taking place against Kagan and Thomas are interesting, but they only serve to shape the rhetorical battlefield for whatever decision comes down from the Supreme Court next summer.  Both sides are preparing for some delegitimization ahead of the decision in order to fire up the base for the 2012 election, and for any efforts needed to repeal ObamaCare in case the court leaves it in place.

However, some Democrats seem to think that’s not likely, even if Kagan doesn’t recuse herself:

Democrats on Capitol Hill are worried that the Supreme Court will rule against President Obama’s healthcare reform law.

Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.

While the lawmakers are not second-guessing the administration’s legal strategy, some are clearly bracing for defeat.

“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

This is just another form of delegitimization, of course, but they’re worried nonetheless.  If the court tosses out ObamaCare, in whole or in part, it will put egg on the face of every Democrat that spent all of their political capital following Obama into the abyss.  That will delegitimize Democrats far more than the Supreme Court, and that would come right before the 2012 elections that they’re already fearing.

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..all this aside, she looks like Petunia Pig.

The War Planner on November 15, 2011 at 2:35 PM

But haven’t emails come forth that Kagan was non officially directing the defense of Obamacare, and therefore should recuse herself?

Zaggs on November 15, 2011 at 2:37 PM

Worst case scenario (for 0bamacare supporters anyway) is if she does not recuse herself, and it’s still struck down.

Lord, I hope that happens.

UltimateBob on November 15, 2011 at 2:37 PM

She is there to protect ObamaCare, she ain’t going anywhere.

DanMan on November 15, 2011 at 2:38 PM

Kagan has been exceedingly conscientious about recusals, perhaps more so than necessary. It’s safe to say that such scrupulous adherence to the judicial canon will work in her favor when she argues — or more likely her defenders, as Kagan is unlikely to directly address these calls — that she has no need to recuse herself in this case.

The inconsistency damages her argument. The position will be that she’s recused herself for much less in the past, but this one is a BFD, so she’s staying in no matter what. That argument sucks, but no doubt it’s what will happen.

forest on November 15, 2011 at 2:38 PM

..all this aside, she looks like Petunia Pig.

The War Planner on November 15, 2011 at 2:35 PM

She’s a dork, just like Obama.

Ward Cleaver on November 15, 2011 at 2:38 PM

it will put egg on the face of every Democrat

All eggs are offended.

antisocial on November 15, 2011 at 2:40 PM

Glad to hear she has recused herself on previous cases and she should for this one too
But not holding my breath

cmsinaz on November 15, 2011 at 2:40 PM

Striking down the individual mandate is a decision for insurance companies? So insurance companies’ ultimate goal is to go bankrupt if the individual mandate goes away but the coverage mandate stays?

NotCoach on November 15, 2011 at 2:40 PM

Kagan has been exceedingly conscientious about recusals, perhaps more so than necessary.

How do you know either of these two assertions are true?

MTF on November 15, 2011 at 2:42 PM

The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.

I can’t help it, this line of BS just grates on my nerves.

It’s almost like they’ve used up the deck of race cards and are just dealing out the class cards.

reaganaut on November 15, 2011 at 2:42 PM

Call me cynical, but I think her earlier recusals were in part done to make her seem so reasonable so not recusing herself here would seem to be not such a big deal.

rbj on November 15, 2011 at 2:43 PM

“Democrats on Capitol Hill are worried that the Supreme Court will rule against President Obama’s healthcare reform law.”

If only out of spite…

/

Seven Percent Solution on November 15, 2011 at 2:45 PM

I can’t help it, this line of BS just grates on my nerves.

It’s almost like they’ve used up the deck of race cards and are just dealing out the class cards.

reaganaut on November 15, 2011 at 2:42 PM

What do you expect from Sherrod Brown? He’s about as stupid and vacuous as they come.

UltimateBob on November 15, 2011 at 2:46 PM

Kagan has been exceedingly conscientious about recusals, perhaps more so than necessary. It’s safe to say that such scrupulous adherence to the judicial canon will work in her favor when she argues — or more likely her defenders, as Kagan is unlikely to directly address these calls — that she has no need to recuse herself in this case.

Yeah, yeah, that’s the ticket.
/Justice Jon Lovitz Elena Kagan

red winger on November 15, 2011 at 2:46 PM

Hey, why doesn’t SCOTUS save a lot of time and angst by just deeming the ObamaCare unconstitutional?

I’m sure Louise would agree with that process.

BobMbx on November 15, 2011 at 2:46 PM

Electorally, aren’t conservatives better off if the SC does NOT strike down the mandate? It’ll be left to the POTUS and Congress to kill this awful law, placing more emphasis on defeating Obama and taking the Senate.

DrW on November 15, 2011 at 2:48 PM

Electorally, aren’t conservatives better off if the SC does NOT strike down the mandate? It’ll be left to the POTUS and Congress to kill this awful law, placing more emphasis on defeating Obama and taking the Senate.

DrW on November 15, 2011 at 2:48 PM

No, because of the individual mandate. If Congress can make you buy a product, then basically Congress can make you do just about anything. This isn’t about electoral politics, it’s about our last remaining thread of liberty.

rbj on November 15, 2011 at 2:51 PM

Then… When CNSNews.com asked House Speaker Nancy Pelosi (D-Calif.) where the Constitution authorized Congress to order Americans to buy health insurance, Pelosi dismissed the question by saying: “Are you serious? Are you serious?”

And Now: While the lawmakers are not second-guessing the administration’s legal strategy, some are clearly bracing for defeat. “Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio).

Bwahahahahahahaha.

LASue on November 15, 2011 at 2:51 PM

Who’s the decider, Justice Kennedy?

jimver on November 15, 2011 at 2:52 PM

The failure is that we are no longer shocked that a jurist completely disregards their duty to avoid the appearance of impropriety. We are in fact, numb to the notion of judicial standards and simply expect corruption.

lm10001 on November 15, 2011 at 2:53 PM

Really, if I were Kagan, I would probably recuse myself.

It doesn’t change the math one whit – Obamacare is the law and the SCOTUS needs five votes to overturn it. Whether Kagan votes in support or spends the day on the golf course eying the drinks girl makes no difference, and also adds an air of legitimacy to the false-equivalence attempts to get Thomas to recuse himself because his wife is a Republican.

That recusal would matter. It would probably cement Obamacare in stone.

HitNRun on November 15, 2011 at 2:53 PM

And there is little doubt that this is the most significant case of this Supreme Court term, or perhaps any court term since Wickard v. Filburn. This case gives the court the opportunity to either tighten the leash on Congress and enforce constitutional limits on its power, or simply unleash Congress entirely to regulate every last bit of our lives.

I dare say this is going to be a turning point in the history of this nation.

Say goodbye to Liberty if they rule the wrong way.

Chip on November 15, 2011 at 2:54 PM

Call me cynical, but I think her earlier recusals were in part done to make her seem so reasonable so not recusing herself here would seem to be not such a big deal.

rbj on November 15, 2011 at 2:43 PM

OK, you’re cynical.
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You’re also probably correct.

turfmann on November 15, 2011 at 2:54 PM

Just more evidence that the laws of this nation mean exactly jack and squat to the people in positions of power. Laws are only for “the little people”.

Dominion on November 15, 2011 at 2:54 PM

Can anyone explain this to me?

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” Perelli wrote in this email. “It has to be over there. Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible. I know we won’t get everyone’s in tonight.

Why would they need this information?

bridgetown on November 15, 2011 at 2:55 PM

When she doesn’t recuse herself, I wonder if that might tick off Justice Kennedy even a little bit.

Uncledave on November 15, 2011 at 2:56 PM

“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

Um, if they uphold Obamacare, aren’t they deciding in favor of the insurance companies -and- the wealthy? Make us all chug a quart of oil each day and you have a pretty sweet trifecta going there.

lorien1973 on November 15, 2011 at 2:58 PM

The failure is that we are no longer shocked that a jurist completely disregards their duty to avoid the appearance of impropriety. We are in fact, numb to the notion of judicial standards and simply expect corruption.

lm10001 on November 15, 2011 at 2:53 PM

Even worse, this would be actual impropriety. She was an advocate for the bill. She celebrated when it got the votes. 100% chance she votes to uphold regardless of the arguments made.

forest on November 15, 2011 at 2:58 PM

..all this aside, she looks like Petunia Pig.

The War Planner on November 15, 2011 at 2:35 PM

ROFL

brtex on November 15, 2011 at 2:58 PM

HitNRun on November 15, 2011 at 2:53 PM

What if she recuses herself and it is a 4-4 split? That would mean the conflicting rulings from the different circuit courts are now the last word on the issue.

NotCoach on November 15, 2011 at 2:58 PM

Call me cynical, but I think her earlier recusals were in part done to make her seem so reasonable so not recusing herself here would seem to be not such a big deal.

rbj on November 15, 2011 at 2:43 PM

Good question.

I submit two questions to the crowd on this:

Were these earlier Recusals on cases that wouldn’t have mattered if she Recused herself?

And were those earlier cases as Important as the one on Controversial and Unconstitutional Obamacare?

Chip on November 15, 2011 at 3:01 PM

What Supreme Court justice would willing walk away from that argument and opportunity?

Seriously?
How about one with good ethics who wouldn’t want to stain the court with even the appearance of impropriety? And Lord knows Kagan has more than just the appearance.
.
Via CNS article quoted in part in HA headlines:

The email chain continued…
“…“Also,” Perrelli continued, “we need to think about the key issues/question for the agenda. [Language redacted] tops my list, but I know there are others.”

At 6:18, Katyal forwarded this email to Kagan. “This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

One minute later—at 6:19 p.m.—Kagan responded to Katyal: “What’s your phone number?”

Three minutes after that, Katyal sent Kagan his phone number and the email chain ended.
.
So this proves Kagan was privvy to the KEY issue the A.G. & DOJ expected to have to defend in future PPACA (Obamacare) litigation. What part of a Supreme Court Justice knowing one side’s strategy (nevermind helping to craft it & cheering its passage) does not demand her mrecusal? 
.
As far as strategizing how Kagan’s refusal to recuse herself may play out in swaying Kennedy’s vote- have you lost your mind? Ever hear of precedent?
.
If Kagan doesn’t sit this out, it’s possible the fury of the 70%+ of Americans who never wanted Obamacare could easily be moved to start an Occupy SCOTUS protest.

NightmareOnKStreet on November 15, 2011 at 3:02 PM

What if she recuses herself and it is a 4-4 split? That would mean the conflicting rulings from the different circuit courts are now the last word on the issue.

NotCoach on November 15, 2011 at 2:58 PM

That’s an interesting point. I had forgotten that other courts had, in fact, struck the law down wholesale. I suppose, then, that it does matter.

HitNRun on November 15, 2011 at 3:03 PM

If the court tosses out ObamaCare, in whole or in part, it will put egg on the face of every Democrat that spent all of their political capital following Obama into the abyss.

Karma baby, KARMA!

GarandFan on November 15, 2011 at 3:05 PM

The failure is that we are no longer shocked that a jurist completely disregards their duty to avoid the appearance of impropriety. We are in fact, numb to the notion of judicial standards and simply expect corruption.

lm10001 on November 15, 2011 at 2:53 PM

The failure is that we are no longer shocked that a jurist completely disregards their duty to avoid the appearance of impropriety. We are in fact, numb to the notion of judicial standards and simply expect corruption and have morphed into EuroTrash!

FIFY!

belad on November 15, 2011 at 3:05 PM

Her and the wise Latino are there to stonewall for extreme leftist policies. This has nothing to do with law, but it has everything to do with supporting the revolution against this Republic. Those two can just phone it in.

Hening on November 15, 2011 at 3:08 PM

What Supreme Court justice would willing walk away from that argument and opportunity?

Seriously?

Honest to God! Right/wrong be damned…your cynicism is breathtaking dude!

winston on November 15, 2011 at 3:09 PM

“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

I am sick to freakin’ death of people like Brown and other members of Congress, who are the quintessential pigs at the trough, railing against the “wealthy.” It’s really becoming old.

Mr. Grump on November 15, 2011 at 3:11 PM

The best course is to not count on the court and straight up repeal it in congress.

Iblis on November 15, 2011 at 3:13 PM

Slightly OT…but what is it with the ‘green’ picture on Drudge with odumbo & kagan?

lukespapa on November 15, 2011 at 3:17 PM

What if she recuses herself and it is a 4-4 split? That would mean the conflicting rulings from the different circuit courts are now the last word on the issue.

NotCoach on November 15, 2011 at 2:58 PM

What, no sudden death overtime? How about a “to the death” cage match between Thomas and Kagan?

ObamaCare: For those of us about to die, we salute you!

simkeith on November 15, 2011 at 3:20 PM

…which the New York Times editorial page recently labeled the most conservative high court since the 1950s.

The same court that ruled in 1954 that mandatory racial segregation of schools in the South must end? Yeah, those damn Conservatives are waaaay out of line.

infidel4life on November 15, 2011 at 3:22 PM

I can’t help it, this line of BS just grates on my nerves.

It’s almost like they’ve used up the deck of race cards and are just dealing out the class cards.

reaganaut on November 15, 2011 at 2:42 PM

-
Well.. the race card just ain’t what it use to be… plus they may be saving what is left of it to beat Newt, or Romney…
-
And the class card is bangin right now…
-

RalphyBoy on November 15, 2011 at 3:23 PM

Well.. the race card just ain’t what it use to be… plus they may be saving what is left of it to beat up on Newt, or Romney…
-
And the class card is bangin right now…
-

RalphyBoy on November 15, 2011 at 3:23 PM
-
FI cause this is what I really meant…

RalphyBoy on November 15, 2011 at 3:24 PM

“I hear they have the votes, Larry!! Simply amazing,”

The Stupak moment and Obama’s executive order that duped House Democrats—is this how you heard it Kagan? Who else did she email that night? Did she use gmail?

Rovin on November 15, 2011 at 3:25 PM

The subject of Kagan email was ” fingers and toes crossed today.” I definitely don’t look for Kagan to voluntarily recuse herself. In fact, i think Obamacare was the main reason for her appointment to the Surpreme Court in the first place.

Zcat on November 15, 2011 at 3:28 PM

She was directly involved in pushing Obamacare through as solicitor. An ethical jurist wouldn’t think twice and would recuse.

Now think back to her testimony during the confirmation hearings, much of which was intentionally misleading and some of which was just plain perjury.

What are the odds a woman who would lie under oath to advance her chances of confirmation will recuse herself from what might be the most important case the court will decide for decades to come, when she has a horse in the race?

The argument that Thomas should recuse himself is preposterous,

They will both be on the bench for this one.

novaculus on November 15, 2011 at 3:30 PM

this thing is going to be upheld. can you say Kele?

darwin-t on November 15, 2011 at 3:33 PM

s/b Kelo

darwin-t on November 15, 2011 at 3:35 PM

Who’s the decider, Justice Kennedy?

jimver on November 15, 2011 at 2:52 PM

If Kagan doesn’t recuse herself (she probably won’t), Justice Kennedy will be the decider.

He and the four conservative Justices (Roberts, Scalia, Thomas, and Alito) probably need to hire bodyguards between now and the decision. If an “unfortunate incident” happens to any of them, his replacement will be named by Barack Hussein ObamaCare.

Steve Z on November 15, 2011 at 3:57 PM

If Obama care is not tossed out entirely it will be time for universal civil disobedience from the right.

The current legal teams completely missed the boat. The individual mandate is a minor issue compared to how it was passed.

All revenue raising legislation must originate in the house, same goes for all spending bills.

Obama care originated in the Senate and the house was not allowed to change one single thing in the bill. The whole thing is unconstitutional.

The Rock on November 15, 2011 at 4:04 PM

This case gives the court the opportunity to either tighten the leash on Congress and enforce constitutional limits on its power, or simply unleash Congress entirely to regulate every last bit of our lives

If this is true-that the court can control the above -then there are no three equal branches of government to balance each other, because then the court will have palced itself above the has placed itself above the legislative.

The constitution doesn’t provide such power to the courts, the legislature might do well to inform it as to its limitations. Laws are made in congress by our representatives, not in some backroom by unelected people wearing unfashionable robes.

What are the limits of the court? Short of impeaching them(will never happen – if they didnt do it for Row v wade and Kelo)is there any control on a handful of ideologes running wild? If the administration can pull a gun runner and just smirk when caught, what’s to stop the courts from playing the same game-which I believe they already have finding emanations from penumbras – a legal fascimile to pinning the tail on the donkey -blindfolded.

These questions belong to the people – and they need to take that power back -regardless of what the entrenched establishment wants. Vote your heart out in 2012 -it may be your last real vote.

Don L on November 15, 2011 at 4:14 PM

Why would she recuse herself when she’ll get to decide if we are serfs or not.

gwelf on November 15, 2011 at 4:16 PM

..all this aside, she looks like Petunia Pig.

The War Planner on November 15, 2011 at 2:35 PM

I disagree. Petunia is cute. She looks like Kevin James, with earrings.

iurockhead on November 15, 2011 at 4:47 PM

She does look like Petunia the pig and I’ll bet anyone that Michael Moore played Jabba the Hut in Star wars. Seriously, the Dems are shaking in their boots, they will all look like total fools once Obamacare is overturned.

MJZZZ on November 15, 2011 at 5:39 PM

Like I said, if Kagan doesn’t recuse herself, it may be time for the more than 70% of Americans who oppose becoming enslaved by Obamacare to OCCUPY SCOTUS.
WE THE PEOPLE are still in charge & enough is enough. Besides, all those disenfranchised Wall St. protesters need somewhere to go.

NightmareOnKStreet on November 15, 2011 at 6:18 PM

..all this aside, she looks like Petunia Pig.

The War Planner on November 15, 2011 at 2:35 PM

Don’t be insulting Petunia.

Mirimichi on November 15, 2011 at 6:47 PM

ObamaCare advocates demanding that Clarence Thomas recuse himself from any case review, thanks to his wife’s conservative activism at the Heritage Foundation, among other organizations.

If anyone in a judge’s family has expressed a conservative opinion, he can never rule on a case?

The only thing about any of this I find surprising is that American liberals took so long to finally reach the End Game of Political Correctness.

logis on November 15, 2011 at 6:51 PM

I dare say this is going to be a turning point in the history of this nation.

Say goodbye to Liberty if they rule the wrong way.

Chip on November 15, 2011 at 2:54 PM

So, all of the guns and ammo that has been bought the last 3 years are just going to sit in the closet and collect dust.

Mirimichi on November 15, 2011 at 7:07 PM

everything is going according to plan, she’s the plant on the high court to make sure the titanic leaves liverpool and goes full steam into the ice fields.

maineconservative on November 15, 2011 at 7:18 PM

Can anyone explain this to me?

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” Perelli wrote in this email. “It has to be over there. Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible. I know we won’t get everyone’s in tonight.

Why would they need this information?

bridgetown on November 15, 2011 at 2:55 PM

I believe that anytime someone goes into a meeting in the West Wing, and perhaps even the executive areas near the white house and meeting with high level administrative peeps, you have to be cleared by the Secret Service. So they use your personal information to pull your files to see if you have a record or anything.

My friend happens to be really close, personal friends with Bush 43 and has been in the Oval office several times and each and every time she had to submit that information to the white house scheduling office to get cleared for her visits. I saw the letter once that comes with the White House invitations and it is quite detailed in what you have to do to get cleared to be there.

karenhasfreedom on November 15, 2011 at 7:19 PM

The only controlling authority for the Supreme Court on matters of recusal is … the Supreme Court.

How freakin’ convenient.

GrannyDee on November 15, 2011 at 7:28 PM

I doubt Kagan will recuse herself, she’s a liberal and they are exempt from the outrage of the press so there will be no pressure put upon her. Hell the NY Times is already calling on the court to not strike the law down, do you really believe they will advocate losing a guaranteed liberal vote?

If the Supreme Court says Obamacare is constitutional, I believe it’s time to call a constitutional convention and straighten this mess out. The liberal interpretation of the constitution will have gone too far so it will be time to move it to the right a little.

bflat879 on November 15, 2011 at 10:53 PM

Obama used his 2010 state of the union to ambush the Supreme Court and berate them like little children. Over turning this would be a nice little way for the Supremes to say “FU, we are coequal branches of government, b!tch” to the Obama regime. I predict an epic smack down.

bitsy on November 16, 2011 at 12:20 AM

Kagan was Surprisingly Good TM before, right Ed?

leftnomore on November 16, 2011 at 4:15 AM