The “Thugfather”

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

uch ado was made over President Obama’s uncharacteristically maladroit remarkson the possibility that the Supreme Court might overturn his health care reform legislation:

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?

The John Birch Society, now once again on friendly terms with movement conservatism, wrote in 1963:

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.

Hannity brought it up last night and Limbaugh mentioned it earlier in the day (he speculated that it might be Justice Kagan).

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.

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  1. ansonburlingame

     /  April 4, 2012

    First question is WHY did the President speak the way he did related to the Supreme Court’s responsibility to conduct a judicial review to determine constitutionality of any law presented in a case before that Court?

    My guess is he is very concerned about how the ACA, particularly the mandate portion of it, will be ruled upon by SCOTUS. Now why would he be concerned enough to publicly remind the nine justices of their constituional responsibilities clearly establish by Marbury v. Madison. Again my guess is he knows something that we in the public do not know.

    I do NOT allege on of the Justices “leaked” the vote. But as a result of that vote clerks are now doing the research to write majority and dissenting opinions that are the result of that preliminary vote. Now THAT could be a source of any “leak” for sure. But we will never know for sure, so why sling allegations around?

    HOWEVER, the President SHOULD be called to account for what he said about “unelected officials” overriding laws passed by “elected officials”. Such a comment is pure politics of the rawest sort. The fact that he even considered such politically words related to a LEGAL case before SCOTUS is beyond me.

    SCOTUS has a LEGAL responsibility before now to determine the Constitutionality of all or part of ACA. Politicians should get out of it now and let the judges do their jobs, period.

    I would apply the same caution to pundits, including local bloggers as well.

    Want to discuss the “what if’s” related to whichever way the decision by SCOTUS might go is fine with me. Want to engage in individual bashing of certain justices, fine as well.

    But if I had anything to do with how the WH speaks about ACA right now and up until the SCOTUS decision is publicly announced, I would tell the minions to write a good speech to be delivered the day of the announcement. Actually it should be two speeches, carefully constructed to pick up the pieces in whole or in part to resume LEADING the country AFTER SCOTUS does its job, on way or the other.

    I also wonder if the Chief Justice has the authority to conduct a “leak investigation” very quietly??

    I also look forward to reading the letter directed to be written by the AG related to judicial review. Any bets as to whether the AG will ignore the court order?



  2. Does anyone know what limbaugh’s public reaction was to having Mr. Bush’s wings clipped in pursuing the war on terror, by the same SCOTUS. I am supposing he was all in favor of limitless executive power to pursue people who scare Rush, and the Constitution – who needs it.


    • Bruce,

      You’ve got it right. When Republicans were in office during Limbaugh’s radio reign, the powers of the president were limitless. When Obama has dared to exercise executive power, he is a tyrant, bent on destroying the country. Limbaugh attacked Clinton the same way. No Democrat is legitimate.



  3. Is it true that one of the justices actually referred to the ACA as “Obamacare” ?



    • I don’t think any of the SC justices used the word, but that freak appellate judge in Texas (who ordered the Justice Department attorney to bring in a three-page, single-spaced note from the Attorney General explaining away Obama’s remarks) did use the word and thus disqualified himself from hearing the case before him. He is a Republican-appointed judge and embarrassed himself, and other than a career on Fox “News” he should be finished.


  4. ansonburlingame

     /  April 5, 2012

    Changing the subject slightly, does anyone know how FDR managed to “pack the Supreme Court” after being challenged on the constitutionality of SS?

    I “think” but do not know for sure that his actions to only appoint liberal judges to the bench resulted in the long term of the “Warren Court”.

    That left leaning court then started to change to the “Roberts Court” today when Reagan came into office, did it not? I am actually not sure and do not have the “history” of the Court imbedded.

    But in some ways, I see such very long term trends in the “politics” of SCOTUS as reflecting the wisdom of the Founders. It takes a long time to change the political nature of SCOTUS as opposed to Congress which can and has changed as often as every two years.

    One must take the “long view” for sure to understand how SCOTUS affects American politics and society. American voters instead want what they want NOW. And Presidents, being politicians do not want SCOTUS interference in any way as they try to push their political agenda.

    The question really thus becomes, “Is that good or bad” that SCOTUS does not always reflect the “will of the people” year to year?

    SCOTUS should not hold allegiance to anything other than the Constitution, in my view. THAT is the final stalwart to ensure the “rule of law”. And people that don’t like a particular law raise Cain everytime SCOTUS rules that a particular law in fact is unconstitutional. Makes no difference which side complains, over time.



  5. Duane’s response will likely respond more fully, but here what I think I know.

    FDR didn’t pack the court, but he tried. His proposal increse the number of justices meet strong pushback and was never approved. However, the course of time did allow him to replace several justices with his choices producing a court more accepting of the New Deal. Also, Earl Warren was appointed by Dwight Eisenhower, not FDR.

    It’s been said I think that Ike thought that appointing Warren was a mistake.


    • Bruce,

      You are right about FDR (and Ike’s view of Warren).

      FDR at first tried to justify his attempt to reorganize the judiciary by appealing to efficiency: The court was overburdened, there were a backlog of cases, etc. Not too many people bought that line, and the public turned against him on the issue. But he didn’t back down. I suggest everyone interested in this issue read his fireside chat given on March 9, 1937.

      Compared to FDR’s criticism of the Supreme Court in his day, Mr. Obama’s has been a puff of powder.



  1. Thug?! « The Fifth Column
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