Quotes of the day

posted at 10:42 pm on June 25, 2012 by Allahpundit

First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.

Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology…

And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago…

How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That’s how we used to talk about the Chinese courts when I was living there. Now it’s how law professors are describing the Supreme Court of the John Roberts era.

***

The Supreme Court has not yet ruled against the individual mandate, and who knows whether it will. Yet this has not stopped commentators from making sweeping charges about the Court. Many commentators, for instance, are charging that the Roberts Court is “activist.” For some, “activist” is just a label for judges that make decisions they don’t like; one man’s “activist” is another’s constitutional paladin. For others, however, the label “activist” is used to describe a court that is particularly “active” in overturning precedent and invalidating laws, and thereby altering the course of the law. So, for instance, James Fallows claims the Court, and Justices Roberts and Alito in particular, “actively second-guess and re-do existing law” and Jeffrey Toobin charged “the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents.”

The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens).

***

Clinton predicted that if the law is declared unconstitutional, Republicans will suffer a backlash when millions of Americans calculate what they have lost. Before the Affordable Care Act passed, two thirds of all the applications for bankruptcy were because of health-care emergencies, a consequence likely to return if health care inflation again rises precipitously.

Clinton drew laughter with anecdotes about individual mandates that go back to the founding of the nation. In 1797, when John Adams was president, he signed a bill that required all seamen to be covered by hospitalization insurance through their employer…

Before Mitt Romney as governor signed the individual mandate, Massachusetts had the highest health-care costs in America. Today, that state is seventh, because inflation in health-care costs in that state have been much lower than in the country as a whole. Why? The mandate prevents insurance companies from shifting their promotional costs to consumers, Clinton said.

***

If Democrats, in a fit of pique, delegitimize the court over an ObamaCare defeat, conflicts between future presidents and the court are likely to turn out differently. At the very least, future Supreme Courts will be less willing to confront a president head-on, while future presidents will be more willing to ignore or evade high court decisions they don’t like.

Yet Supreme Court decisions are the source of much of the liberal legal infrastructure for today’s society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.

And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?

***

In a 2008 profile of Axelrod in the New Republic, Jason Zengerle quoted Ken Snyder, a Democratic consultant and Axelrod protege, on his mentor’s approach. “David felt there almost had to be a permission structure set up for certain white voters to consider a black candidate.” The “permission structure” relied heavily on “third-party authentication“ — endorsements from respected figures or institutions that the targeted voters admired…

What the conservative movement has done — with a big assist from Verrilli — is build a permission structure that would permit the Republican appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the commerce clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lock step with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage and the outcome of the oral arguments.

And that’s what has changed from two years ago. When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.

***

The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.

Much has been made of the fact that Republicans had no objection, constitutional or otherwise, when the individual mandate first surfaced. But that was two decades ago. In today’s changed intellectual, fiscal and political environment, seemingly lapidary constitutional phrases such as “commerce . . . among the several states” can acquire fresh meaning, as they did for the New Deal and at other points in the past.

The brilliance of Obamacare’s opponents lies in spotting that historical opportunity and making the most of it. The legal professoriate, by contrast, reminds me of how William F. Buckley described his arch-conservative magazine in the 1950s: “It stands athwart history, yelling Stop.”

***

Visit msnbc.com for breaking news, world news, and news about the economy

***



Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 3 4 5

I think the expression “get a second opinion” came from health care. I remember hearing it ALL the time. Not so much anymore. I don’t think I’ve heard anyone on the left even mention it publicly in all of the health insurance debates, as they try and portray all health care as something you only get when you’re bleeding to death and will be gone in 10 minutes if you don’t see a doctor – any doctor. Besides, government assigned doctors obviate the need for second opinions …

I just thought it was strange how an expression like that got adopted all over society but disappeared in the place where it either originated or used to be used constantly.

ThePrimordialOrderedPair on June 26, 2012 at 3:32 AM

ThePrimordialOrderedPair on June 26, 2012 at 3:01 AM

We suffer this glut of stupidity because our elections have become popularity contests, and they have become popularity contests, because popularity contests sell advertising time.

SWalker on June 26, 2012 at 3:10 AM

My sentiments, exactly. It seems that intelligence and/or ability to grow in wisdom from one’s errors has skipped two generations.

Let’s hope the young ones today will grow up with better skills than the clueless two generations ahead of them.

Lourdes on June 26, 2012 at 3:34 AM

Bmore on June 26, 2012 at 3:16 AM

Understood but I’m only addressing the ongoing “clueless assumptions that appear as demands” that I read…

I wasn’t up-to-the-minute in my comments earlier (because I was trying to catch up with reading all the prior comments), unfortunately, so had a lot to spill out when I finally got to the end.

Lourdes on June 26, 2012 at 3:36 AM

Bmore on June 26, 2012 at 3:29 AM

Night…one of my favorites..I loved that movie!

lovingmyUSA on June 26, 2012 at 3:39 AM

Bmore on June 26, 2012 at 1:59 AM

BedBug turned it around on Allahpundit’s Quotes of the day May 23rd…and he was gone until today…I think.
Remember what he was like before that? We were all running around with cans of RAID ! Why does it seem like soooooo long ago? This is a different person…(trying to understand at least-from where he was!) Makes me realize what a terrible troll Yeastinfection is.

KOOLAID2 on June 26, 2012 at 4:02 AM

How would you describe a President, who refuses to uphold the Constitution as he swore an oath to do, refuses to enforce laws that are on the books, circumvents Congress, arms Mexican drug cartels in an effort to undermine Americans’ constitutional rights, dismisses out-of-hand pleas for the recognition of the rights of the religious to practise their faiths as they are entitled under the First Amendment, encourages our enemies and insults/dismisses our allies, calls his fellow Americans “enemies,” unilaterally abrogates contracts, usurps the rights of secured creditors in order to pay off his union buddies, and engages in foreign military interventions without Congressional approval …

Resist We Much on June 25, 2012 at 11:11 PM

I’d describe him as unemployed, effective 12:01 P.M. January 20, 2013.

Flora Duh on June 26, 2012 at 6:32 AM

The glass is half-full, not half-empty. My take.

kingsjester on June 26, 2012 at 6:38 AM

Good morning!

Marcus, let us know what joe said, I’m sure he did his usual Mitt bashing to make himself look good to his lib buddies…

cmsinaz on June 26, 2012 at 6:40 AM

kingsjester on June 26, 2012 at 6:38 AM

Thank you KJ, I’ve been one of the eeyores…I needed this….
thanks brother

cmsinaz on June 26, 2012 at 6:42 AM

Joe is being an idiot about perry though

pathetic

cmsinaz on June 26, 2012 at 6:44 AM

cmsinaz on June 26, 2012 at 6:42 AM

You’re welcome. It drove me nuts around here yesterday. American Conservatives are optimistic people.

kingsjester on June 26, 2012 at 6:48 AM

kingsjester on June 26, 2012 at 6:38 AM

And, if that doesn’t fire you up, remember this:

To hell with what Boehner says about “not spiking the football.”

I want to see the the noses of those front 4 rubbed in the steaming pile of their defeat. And the lady in red can shove that gavel where the sun don’t shine.

Flora Duh on June 26, 2012 at 6:50 AM

You’re welcome. It drove me nuts around here yesterday. American Conservatives are optimistic people.

kingsjester on June 26, 2012 at 6:48 AM

tru dat…said some prayers this am…HE is in control

cmsinaz on June 26, 2012 at 6:53 AM

I want to see the the noses of those front 4 rubbed in the steaming pile of their defeat. And the lady in red can shove that gavel where the sun don’t shine.

Flora Duh on June 26, 2012 at 6:50 AM

:)

cmsinaz on June 26, 2012 at 6:54 AM

Flora Duh on June 26, 2012 at 6:50 AM

Yes, ma’am. Now is not the time for squishiness. Now, is not the time for “reaching across the aisle”.

kingsjester on June 26, 2012 at 6:57 AM

The interesting thing about Obama choosing not to enforce immigration laws, however, is that it sets a precedent.

If Obamacare is upheld Thursday, then President Romney in January can simply choose to order the IRS NOT to enforce the individual mandate, just as Obama has ordered his regime not to enforce immigration laws.

President Romney will be free to pick and choose, just as Obama has done the last 4 years.

Read more: http://www.politico.com/news/stories/0612/77826.html#ixzz1ytcC0cYU

a poster from politico…hmmmmmm

cmsinaz on June 26, 2012 at 7:00 AM

cmsinaz on June 26, 2012 at 7:00 AM

Sounds good. But, will the author of Romneycare, choose to do that?
That’s the question.

kingsjester on June 26, 2012 at 7:04 AM

kingsjester on June 26, 2012 at 7:04 AM

indeed it is….

cmsinaz on June 26, 2012 at 7:06 AM

shut up joe, hispanic americans do not have to ‘carry papers’…if they have a drivers license (which they would have to show for the original stop) there should be NO PROBLEM…

cmsinaz on June 26, 2012 at 7:10 AM

President Romney will be free to pick and choose, just as Obama has done the last 4 years.

Read more: http://www.politico.com/news/stories/0612/77826.html#ixzz1ytcC0cYU

a poster from politico…hmmmmmm

cmsinaz on June 26, 2012 at 7:00 AM

How about choosing to ignore the Roe vs Wade ruling? Oh my, can you imagine the wailing and gnashing of teeth over that?

Flora Duh on June 26, 2012 at 7:10 AM

Flora Duh on June 26, 2012 at 7:10 AM

heh

cmsinaz on June 26, 2012 at 7:13 AM

Chris Matthews is at his most entertaining when he’s spittle-flecked and apocalyptic. His histrionics about fictional history bring such joy.

DarthBrooks on June 26, 2012 at 7:13 AM

I have no desire to see Mitt Romney or anyone else flout the rule of law, even if I support the end of Roe v. Wade.

We are supposed to be a nation of laws. I want to see that principle restored.

FUBO

Naturally Curly on June 26, 2012 at 7:19 AM

Naturally Curly on June 26, 2012 at 7:19 AM

I agree NC. I was just imagining what the reaction of the left would be if they were to get a tasted of their own medicine.

During the past 3.5 yrs I get my jollys where I can. :-)

Flora Duh on June 26, 2012 at 7:22 AM

Ive thought the same thing, Flora. And I do love it when liberals squeal! But its a dead-end street. Also, I wouldn’t trust Mitt Romney to do the right thing if given that much power.

OWS tries to effect change through violence, mayhem and wanton destruction of property.

The Tea Party DOES effect change by getting involved in local, state and federal elections. We win some and lose some, but we do it according to the the rule of law.

Naturally Curly on June 26, 2012 at 7:33 AM

kingsjester on June 26, 2012 at 6:48 AM

Good article! I am optimistic about Thursday. I probably shouldn’t use the lefty hysteria as a guide for Obamacare, but they are so shrill it’s hard not to. As for Holder, if there weren’t enough votes to hold him in contempt, there wouldn’t be a vote scheduled in my opinion.

Flora Duh on June 26, 2012 at 7:22 AM

It IS fun to imagine all the ways this stuff can be turned around on the liberals. I do it too! It kept me from commenting here yesterday after Obama announced they wouldn’t be accepting phone calls from AZ except on their new hotline. Every time I typed a comment I deleted it for fear of being banned.

Night Owl on June 26, 2012 at 7:36 AM

Issa to Obama: Either you abused privilege or the White House was involved in Fast and Furious

“Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it … or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation,” Issa wrote. “To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case.”

Flora Duh on June 26, 2012 at 7:41 AM

“5 Signs the United States is Undergoing a Coup…..How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That’s how we used to talk about the Chinese courts when I was living there. Now it’s how law professors are describing the Supreme Court of the John Roberts era.”
How would you describe a President, who refuses to uphold the Constitution as he swore an oath to do, refuses to enforce laws that are on the books, circumvents Congress, arms Mexican drug cartels in an effort to undermine Americans’ constitutional rights, dismisses out-of-hand pleas for the recognition of the rights of the religious to practise their faiths as they are entitled under the First Amendment, encourages our enemies and insults/dismisses our allies, calls his fellow Americans “enemies,” unilaterally abrogates contracts, usurps the rights of secured creditors in order to pay off his union buddies, and engages in foreign military interventions without Congressional approval, Mr Fallows?
Some would call him a dic…tator. Some, like the uber Progressive Professor Turley would call him more of an Imperial President than Richard Nixon. Some would say that he is engaged in a form of nullification, which IIRC led, in part, to the deaths of 600,000 Americans in a 4 year civil war. Some might even say, ahem, that he is engaged in his own coup or, certainly, assault on the American people and Constitution.
Resist We Much on June 25, 2012 at 11:11 PM

Bookmarking that.

Cleombrotus on June 26, 2012 at 7:44 AM

Before the Affordable Care Act passed, two thirds of all the applications for bankruptcy were because of health-care emergencies,

Gotta love how liberals will make up a meme, and then keep repeating it over and over and over again, no matter how many it’s proven to be false.

This particular one was created (out of whole cloth) by everyone’s favorite non-Cherokee “scholar” Lizzie Warren. There have been reams of peer reviews of her work, all of which have concluded that her claims are completely bogus — but that doesn’t stop the libs from constantly repeating them and asserting them as absolute and undeniable truth.

AZCoyote on June 26, 2012 at 7:47 AM

Flora it would be nice if they would get a taste of their own medicine

cmsinaz on June 26, 2012 at 7:50 AM

Good link Flora …nice zing issa

cmsinaz on June 26, 2012 at 7:54 AM

First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.

And second, every major newspaper sent ballot counters down to Florida hoping to further undermine Bush; these quietly left when their recounts showed that the courts decision to allow Florida to declare a winner based on the laws in effect on election day in no way changed the outcome of the race.

Bush v Gore was a two part decision: 7 to 2 to declare that the Florida Supremes failed to make their case and 5 to 4 to say enough is enough and they were not to get a 3rd try to get it right.

If the facts are not on your side, create a myth.

Laurence on June 26, 2012 at 8:19 AM

First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.

The recount as ordered by the Florida recount was in violation of the equal protection clause of the constitution becuase there was no statewide uniform standard used to determine whether or not a ballot would be accepted as valid. There wasn’t time to develop those standards because Gore spent a whole month d*cking around with recounts. Not hard to understand.

Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology…

Because they are

And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals

Which doesn’t make them Constitutional. You just called them partisan hacks, and now you are complaining because they might not rule the way a partisan hack would.

and even though the party’s presidential nominee endorsed these concepts only a few years ago…

see above

How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda?

As the Obama administration’s immigration policies.

======================================================

Clinton drew laughter with anecdotes about individual mandates that go back to the founding of the nation. In 1797, when John Adams was president, he signed a bill that required all seamen to be covered by hospitalization insurance through their employer…

Bill Clinton talking about seamen. The joke writes itself.

Bobbertsan on June 26, 2012 at 9:50 AM

Good article! I am optimistic about Thursday. I probably shouldn’t use the lefty hysteria as a guide for Obamacare, but they are so shrill it’s hard not to. As for Holder, if there weren’t enough votes to hold him in contempt, there wouldn’t be a vote scheduled in my opinion.

Night Owl on June 26, 2012 at 7:36 AM

Unanimity of the Republicans on the Oversight Committee vote presages the vote in the House, where Republicans are the majority. (And Issa claims that at least 31 Democrats are prepared to vote with the majority.) The contempt finding would never have made it out of Committee if the House leadership wasn’t prepared for it to come to the floor of the House– and pass.

And I’m beginning to appreciate the tactic, deliberate or not, of scheduling the House vote on the same day of the SCOTUS decision. The SCOTUS decision will be released first thing in the morning. Discussion of the topic will dominate the morning news. The House vote comes later in the day, possibly the end of the day, preceded by debate that will publicize the historical significance of the first vote to hold a U.S. AG in contempt. Having digested the SCOTUS decision for most of the day, the media may very well turn its attention to the live drama of the House vote.

If the SCOTUS decision strikes down the mandate, the Holder contempt vote will be the icing on the cake. If SCOTUS disappoints, the House vote won’t. However it all goes, Thursday will not be a good day for Obama.

de rigueur on June 26, 2012 at 11:31 AM

How Republicans made it possible for the Supreme Court to rule against the mandate

Ezra Klein

Yes, because God knows its very important to get someone elected because the color of their skin. Dr. king spins in his grave.

Bmore on June 26, 2012 at 7:17 PM

Allah: You have confused “Conservatives” with “Republican Party” throughout the piece above.

Consequently, much of it is BS.

landlines on June 26, 2012 at 7:25 PM

landlines, he often does.

Bmore on June 26, 2012 at 7:26 PM

Redefining American government through Obamacare

Charles Lane

Yes your law friend has allowed his failed philosophical view to contaminate his opinion. No that is not a good idea. There is or at least is supposed to be no room on the bench for that behavior. Alas it is not the case.

Bmore on June 26, 2012 at 7:46 PM

“Who cares…there Mexicans”

Electrongod on June 26, 2012 at 8:57 PM

That may have been, UES?

Bmore on June 26, 2012 at 9:35 PM

Comment pages: 1 3 4 5