Sunday, March 3, 2013

The Supreme disgrace: 5 radicals want to repeal the 20th century

- by New Deal democrat

A few months ago I did some research into how long it took to create a fundamental change in Supreme Court decisionmaking. The result, with exceptions of course, is that it typically has taken 3 Presidential terms in a row of governance by the same party.

For example, the original Federalist court wasn't replaced with a majority of Democratic Republicans until the first term of President Madison. Not a single justice retired during FDR's first term. He finally had a appointed a majority in 1940. By the end of Truman's presidency in 1952, all 9 justices had been appointed by democrats.

Nixon and Ford's 8 years saw 5 appointments, but 3 of those were replacements of Eisenhower-appointed justices. The Supreme Court did not really lurch right until Justices Brennan and Marshall decided that Carter was insufficiently liberal, and decided to wait for a more suitable democratic president to get elected. Liberals got lucky when Brennan was replaced by Souter, but Marshall was replaced by Clarence Thomas. In the meantime, Chief Justice Burger was replaced with Rehnquist, and Justice Powell with Scalia.

By 1993, only Justice White remained as the sole Justice appointed by a democrat, John F. Kennedy. Of the 4 presently sitting justices over age 75, two are Clinton appointees, and the other two are Justices Scalia and Kennedy. The actuarial likelihood is that Obama will not be able to change the balance of this court during his second term. It will require a third consecutive term of a democrat as president for the balance of power to change.

In the meantime, with the replacement of the relative moderate O'Connor with the extremist Alito, there is a majority of 5 Justices who have made it plain that they intend to repeal virtually the entire 20th Century. The modern interpretation of the Commerce Clause behind almost all economic legislation since the New Deal came within a vote of being overturned lock, stock, and barrel in the Obamacare case. Even though Chief Justice Roberts looked into the abyss and decided to pull back, there is a new, restrictive doctrine about the Taxing Power of Congress that has appeared out of nowhere.

On Wednesday, we saw raw judicial power on display as Roberts, Scalia, and Alito made it clear that they are ready to declare the Civli Rights Acts of the 1960s unconstitutional. If the Justices believed that racial discrimiation in voting was not limited to the states of the Old Confederacy, then the remedy would be to extend the protection of the Voting Rights Act to all 50 states. Instead, the 5 radicals look like they are about to declare that if only some, but not all, bigots are prevented from discrimiating against black voters, then ALL bigots must be allowed to discriminate! Scalia went so far as to suggest that this decision is typically not left to Congress under the Constitution, despite the fact that, as I pointed out last week, PRECISELY to head off such an argument, the Congress that passed the Fifteenth Amendment specifically reserved to itself the Constitutional power to act. Scalia apparently intends to set himself up as judge of the Amendment itself, the specific intent of which was to create a "racial entitlement," namely, the entitlement of black citizens not to be discriminated against in the exercize of the vote. What I read of last Wedenesday's arguments strongly indicates that the radical 5 fully intend to ignore the intent of the framers of the Fifteenth Amendment, and to set themselves up as superlegislators.

Next up at the plate are gay rights. Despite the fact that all 4 appellate courts that have reviewed the Defense of Marriage Act have found it unconstitutional, the Supreme Court decided to take up those cases, along with the ruling invalidating California's Proposition 8. There is only one reasonable explanation for deciding to take up cases like this where there is unanimity in appellate court rulings, and that is that at least 4 Justices want to reverse. I strongly suspect that by this July 4th, we will live in a country where discrimination against gays is deemed a fit and proper purpose of legislative action.

The breadth of what this radical revanchist wing of the Supreme Court wants to accomplish is stunning. They want to declare the Civil Rights enactments and the New Deal era and subsequent economic enactments Unconstitutional. In other words, they want to make the entire liberal agenda that was enacted since 1932 against the law. Even democratic majorities in both Houses of Congress and a democratic President would be helpless to enact any modern legislation, faced with the near certainty of it being struck down by the Revanchist Five. The Court which rendered Bush v. Gore and Citizens United is dead-set on completing their counter-revolution.

P.S.: just so it's clear, I trust that Justice Ginsburg will retire at some point in the next three years, but the odds are substantially better than 50/50 that both Scalia and Kennedy will outlast Obama - but at least one of them will not last 4 years more.