“The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans.”
—Charles Fried, President Reagan’s solicitor general commenting on the tone of the Supreme Court’s conservative justices during oral arguments on the constitutionality of the Affordable Care Act
And I just remind conservative commentators that for years what we have heard is that the biggest problem on the bench was judicial activism or a lack of judicial restraint; that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step…
Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
The Wall Street Journal was “astonished” at the remarks and wondered if the former constitutional law teacher ever taught Marbury v. Madison. Conservative Joe Scarborough found the remarks “unbelievable” and “disturbing.” He accused the president of “attacking” the Supreme Court and essentially undermining our judicial system’s independence.
The thundering Voice of the GOP, Rush Limbaugh, called the President a “thug“—yep, he did— saying:
…he says things in these sound bites…and they’re chilling to me. “The court has to understand…” “The court must understand,” is one of his sound bites. No, the court must not — does not have to — listen to you. What is this, “The court must understand”? That is a threat! How many of you think it possible that Obama will make a trip to the Supreme Court before the vote, before the final vote? Can you see it happening? I can.
I can too. I can see Mr. Obama serving up a can of presidential whoopass to Justice Scalia. Yes, anyone can see that.
Here is a classy graphic posted as part of Rush’s transcript from Tuesday:
As I said, I can see that Obama busting the kneecaps of Antonin Scalia. I sure can.
There was also an orgy of Obama hate Tuesday night on Hannity—featuring constitutional scholar Sarah Palin! The learned Alaskan said (it is damned hard to transcribe her eruditeness),
So, how much more evidence does an American voter need to understand that this president is not only, just merely, over, in over his head [sic], as a constitutional scholar—this is the community organizer in him coming out.
How much more evidence do all of us need to understand that we cannot afford this “flexibility” that he is seeking in his next four years that he’s asking for, for his ineptitude the next four years, we cannot afford to go down this road.
Sarah Palin referencing someone’s “ineptitude” represents a special kind of chutzpah, don’t ya think? Call it arctic audacity, but whatever you call it, she is sitting on a pile of cash that such garish gall has wrought.
For all the outrage on the right about Mr. Obama’s remarks, one would think that there had been no history of right-wing attacks on the Supreme Court. Does Roe v. Wade ring a bell? Anyone remember the “Impeach Earl Warren” movement across the South?
It is obvious that the Warren-led Court intends, step-by-step, to declare the whole Constitution of the United States unconstitutional.
Is that an attack on the Court?
How about this, from William F. Buckley, the father of modern conservatism:
The Supreme Court of the United States discovers every year or so something in the Constitution not only that hasn’t been discovered before, but something which the formulators of that particular article or amendment to the Constitution specifically rejected. But it becomes law. This is called casuistry, and casuistry is one of the diseases of a decadent order in which people refuse to rely on basic cognitive skills, and have no faith in sequential argument.
Hmm. That was written in 1977. I suppose the Supreme Court has recovered from “one of the diseases of a decadent order,” since conservatives are now so eager to come to its defense.
In any case, the right-wing hysteria over Obama’s remarks is interesting, since a) they don’t worry too much about disrespecting the executive branch these days, and b) I never thought I would live long enough to hear right-wingers so enthusiastically defend the Court’s honor.
The truth is, though, that they don’t have much respect for either the executive branch or the judicial branch (or for that matter, the legislative branch) unless those institutions are peopled by conservatives.
Example: A totally unsubstantiated rumor has been floating from conservative brain to conservative brain: “Does Obama Know How the Supreme Court Voted?” The deal is that some liberal justice leaked the bad news to Big O and he was trying to intimidate the conservative justices into submission, sort of opening up a long-distance can of whoopass.
I ask: Is suggesting that a sitting justice (they are the only ones allowed in during the vote) of leaking the result of last Friday’s conference tally—purely for political reasons—showing proper respect for the Court?
In the case of conspiracy-minded Rush Limbaugh, any leaking of the outcome—positive or negative—would do:
It’s easier to understand that somebody leaked to him that the preliminary vote went against him and that the mandate fell by whatever the preliminary vote was and that explains his attitude yesterday. But I can see him saying what he said if the vote went in his favor as well, as a means of further intimidation, making sure they don’t change their minds or whatever.
It must be nice to live in a world where all the roads lead to your destination.
But my favorite example of the newly-found (at least since Bush v. Gore in 2000) and quite fraudulent conservative respect for the Supreme Court was from Joe Scarborough. After bashing Obama for not showing proper deference to the Court, he said this:
I think Justice Kennedy is a conservative justice with a small “c.” He’s worried about his legacy more than the law that’s in front of him—just to be really harsh about it. And I think he’s going to be afraid to do the bold thing, even if the bold thing is the right thing.
Now, that, my friends, is real respect for the integrity of the Supreme Court.
*The President better explained himself on Tuesday during the Q & A after his AP luncheon speech:
MR. SINGLETON: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?
THE PRESIDENT: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.
Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.