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You are here: Home / Politics / Activist Judges! / A Shot Across the Bow

A Shot Across the Bow

by John Cole|  April 2, 20124:27 pm| 112 Comments

This post is in: Activist Judges!

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Obama puts it clearly:

President Obama said Monday that he remains confident the Supreme Court will uphold his administration’s sweeping health care legislation, arguing that overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism.

In his first comments since the Court wrapped up oral arguments last week in its review of the 2010 law, Obama called the legislation that requires the uninsured to purchase health care coverage “constitutional.”

“Ultimately, I am confident 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,” Obama said during a Rose Garden news conference.

“I just want to remind conservative commentators that for years what we have heard is 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,” Obama said. “Well, this has been a good example. I am pretty confident this Court will recognize that and not take that step.”

Not only does that send a message to the court, but it also puts down a marker for Obama. If ACA is overturned, he’s already set the stage to call them activist judges and run against the court.

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Reader Interactions

112Comments

  1. 1.

    pragmatism

    April 2, 2012 at 4:31 pm

    meanwhile the WSJ puts out a predictable “Libruls are mean to teh Supremes”. who dares criticize teh bestest court in the land? online.wsj.com/article/SB10001424052702304023504577317781153213486.html
    in p o k e r that would be a huge tell.

  2. 2.

    randiego

    April 2, 2012 at 4:32 pm

    The problem, as he noted, was it passed by a “Democratically-elected Congress”; emphasis on Democrat.

  3. 3.

    Jim, Foolish Literalist

    April 2, 2012 at 4:32 pm

    I predict much Concern on CNN and the Tweety Show, pOutrage on Fox

  4. 4.

    paradox

    April 2, 2012 at 4:33 pm

    Bush vs Gore, bitches, they could do anything. If he provokes them I could easily see them doing it out of spite. Really, they’re small mean people.

  5. 5.

    MikeJ

    April 2, 2012 at 4:34 pm

    For all those people who think it will be 7-2 to uphold because the justices aren’t the scumbags the rest of us believe them to be, which two do they think will vote against it? Even if you think the court as a whole will do the right thing, surely nobody thinks Kagen and Kennedy will vote to overturn while Fat Tony and Thomas vote to uphold.

  6. 6.

    Martin

    April 2, 2012 at 4:35 pm

    Gotta say, I never really expected to see a President go after the court in quite this way before. Sure, it was done way before I was born, but then everyone got all deferential and shit.

    Not sure what to make of it other than it’s going to piss off the teatards something awful.

  7. 7.

    Gin & Tonic

    April 2, 2012 at 4:35 pm

    @pragmatism: “Political intimidation”? Hey, if you can’t handle a fast one high and inside, maybe you have no business playing in the bigs. What a fucking bunch of babies.

  8. 8.

    Davis X. Machina

    April 2, 2012 at 4:36 pm

    He doesn’t mean it, though. You can tell he’s just going through the motions…

  9. 9.

    Jim, Foolish Literalist

    April 2, 2012 at 4:36 pm

    @Martin:

    Sure, it was done way before I was born, but then everyone got all deferential and shit.

    When was that? Probably when Reagan started saluting and we all became sentimentally ‘respectful’ about our Institutions. The right went pretty hard after the Warren court, didn’t they?

  10. 10.

    BGinCHI

    April 2, 2012 at 4:36 pm

    Shorter Obama: Don’t make me go single payer on your asses, motherfuckers!

    He should also note that for the Supreme Court, single payer health care already exists. For them.

  11. 11.

    David Koch

    April 2, 2012 at 4:37 pm

    Dictator!

  12. 12.

    David Koch

    April 2, 2012 at 4:37 pm

    Black Jimmy Carter!

  13. 13.

    dr. bloor

    April 2, 2012 at 4:37 pm

    @MikeJ:
    Oh, that’s easy. Alito and Thomas, with Kennedy and Scalia upholding corporate interests after their fun swinging the libtards around by their short hairs during oral arguments.

  14. 14.

    butler

    April 2, 2012 at 4:37 pm

    Ok, so I like that he’s defending the law and calling out the court, but this:

    “Ultimately, I am confident 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,”

    doesn’t hold water. Plenty of laws have been struck down, and by definition every single one passed with a majority in the legislature, else they wouldn’t have become law in the first place. Laws with much stronger majorities than the ACA have been struck down. This is the kind of nonsensical demagoguing I expect from a GOP charlatan.

    Argue the merits, the precendents, and the potential outcomes. Drive the point home that the extreme faction of the court is seriously considering taking health insurance away from 50 million people and that the GOP thinks this is a good thing.

  15. 15.

    Enhanced Voting Techniques

    April 2, 2012 at 4:38 pm

    Well if anything the shrill screaming from the right ought to be fun.

    My person wish; Newt Grinich decoupaging Obama as a violation of the separation of powers.

  16. 16.

    pragmatism

    April 2, 2012 at 4:38 pm

    @Gin & Tonic: victimhood is the all purpose response these days. alito getting all butthurted about the SOTU was when i finally fully acknowledged that the game had changed.

  17. 17.

    Scott

    April 2, 2012 at 4:39 pm

    Well, now that Obama has come out and said overturning it would be judicial activism, the conservatives on the court have to overturn it. They suffer from the same disease the rest of the wingnuts do — if Obama says something, they have to believe the exact opposite.

    There’s a decent chance now that Scalia will write the opinion, and that it will consist solely of “Nyah-nyah-nyah.”

  18. 18.

    David Koch

    April 2, 2012 at 4:40 pm

    He needs to be more like FDR!

    (sans concentration camps and firebombing civilian populations)

  19. 19.

    pseudonymous in nc

    April 2, 2012 at 4:41 pm

    I think 11 is a good number for the Supreme Court. Alas, I don’t think Obama can run a FDR-style “pack the courts” campaign, but I think he can run on “Grover Norquist thinks Romney’s an Autopen, and SCOTUS now works for the GOP.” The idea that the Supremos are beyond politics is a novelty, born from the bullshit modern media cult of “civility”.

  20. 20.

    Belafon (formerly anonevent)

    April 2, 2012 at 4:44 pm

    @butler: His statement, including that one, is a list of what you normally hear from the Right about judicial activism. I wonder if he practiced a lot just to keep from laughing while he said it.

  21. 21.

    Brachiator

    April 2, 2012 at 4:45 pm

    @pseudonymous in nc:

    Alas, I don’t think Obama can run a FDR-style “pack the courts” campaign

    Hope not. Didn’t work for FDR.

  22. 22.

    FlipYrWhig

    April 2, 2012 at 4:45 pm

    @butler: It’s not “nonsensical,” although you’re right on the merits that the Supreme Court has overturned plenty of passed laws before. I think it’s another case of Obama taking the kind of rhetoric that Republicans have used against liberals and Democrats and using it instead _against_ conservatives and Republicans. It’s sort of cheap, I’ll concede, but when Democrats actually use people vs. powerful words without embarrassment, I take that as a step forward.

  23. 23.

    beltane

    April 2, 2012 at 4:46 pm

    @Scott:

    There’s a decent chance now that Scalia will write the opinion, and that it will consist solely of “Nyah-nyah-nyah.”

    Yes, there is a decent chance of this happening. What I don’t understand, however, is how this level of deliberate sh*tting upon the Constitution is not an impeachable offense. The conservative justices have not only made a mockery of their oaths of office, but they have proven themselves unworthy of their very citizenship.

  24. 24.

    dr. bloor

    April 2, 2012 at 4:47 pm

    @butler:

    Argue the merits, the precendents, and the potential outcomes. Drive the point home that the extreme faction of the court is seriously considering taking health insurance away from 50 million people and that the GOP thinks this is a good thing.

    Eh, the comment strikes me as being less about the legislation itself and more about beginning to sketch out the battle lines and message for the general election. His message, however accurate your characterization, is a better sound bite for the masses.

    The fact that he adopted that language at all suggests to me that he already has a very good idea of how the vote’s going to go, anyways.

  25. 25.

    geg6

    April 2, 2012 at 4:47 pm

    Heh.

    Fuck these motherfuckers. Between Citizens United and Bush v. Gore, they lost any respect they may have had from me more than a decade ago. As I mentioned the other day (and as one commenter found to just the height of horrible disrespect), I have pissing on the graves of O’Connor, Scalia, Thomas, Kennedy and Rehnquist on my bucket list already. I’ll be happy to add Roberts and Alito to the list. I hope they all die horrible, painful, friendless deaths. And then I’ll piss on their graves.

  26. 26.

    MattF

    April 2, 2012 at 4:48 pm

    My understanding is that the Supremes voted on the case at the end of last week, so there’s a possibility that Obama already knows the score. We shall see.

  27. 27.

    chopper

    April 2, 2012 at 4:49 pm

    good timing, given that the court laid a big stinker today re: strip searching. they’re not exactly looking good right now.

  28. 28.

    General Stuck (on self glorifiication)

    April 2, 2012 at 4:49 pm

    After the oral arguments and reading what Kennedy said during those, I think now that he won’t have the stomach to kill the mandate and open the Pandora’s Box on the commerce clause and it’s use in passing past laws. I think It will be a 5 to 4 decision, mostly as a right wing statement that they don’t really approve of such laws, and they may tinker with some peripheral provisions of the law, but should leave its viability in tact.

    Kennedy is a wingnut, but he is also a contemplative one, concerning the real world consequences of his conservative mindset and voting that way. He changed his mind, and came around the Casey decision on abortion, led by Sandra Day Oconner on that one,

    I don’t think he will want overturning the ACA on his conscience, denying 35 million people life saving primary health care, nor putting into doubt all the other commerce clause cases. Though I don’t think precedence, nor stare decisis matters much to this right wing court for future cases, such as the VRA, which I predict will go down in flames from the movement conservatives on the bench, and other activist rulings to change the legal pair-a-dime rightward, especially on ballot box issues and political campaign issues.

  29. 29.

    chopper

    April 2, 2012 at 4:49 pm

    then again, our SG filed an amicus brief for the respondent in the strip searching case, but still the court aint looking very good today.

  30. 30.

    Cluttered Mind

    April 2, 2012 at 4:51 pm

    @geg6: I’d settle for quick deaths. Quick as in within the next couple days, so Obama can replace them all.

  31. 31.

    chopper

    April 2, 2012 at 4:52 pm

    @General Stuck (on self glorifiication):

    i’d like to see scalia’s double gainer twist of ignoring raich. then again ‘mr. originalist’ voted to support strip searching of a guy who was hauled in for the crime of having paid a parking ticket, so if he can rationalize that with respect to ‘the framers’ he can rationalize anything.

  32. 32.

    GregB

    April 2, 2012 at 4:52 pm

    Surely the big government liberals came down on the side of the all powerful nanny state in forcing innocent citizens to submit to the ever more powerful hand of the state?

    Say it aint so Strip Search Sammy.

  33. 33.

    Martin

    April 2, 2012 at 4:52 pm

    @MikeJ:

    For all those people who think it will be 7-2 to uphold because the justices aren’t the scumbags the rest of us believe them to be, which two do they think will vote against it? Even if you think the court as a whole will do the right thing, surely nobody thinks Kagen and Kennedy will vote to overturn while Fat Tony and Thomas vote to uphold.

    Thomas will oppose, because he will. Alito will as well but that’s less certain. Roberts could, but if it’s 5-4 to uphold, I think he’ll want to make this less contentious and jump on board.

    Scalia is pretty much a commerce clause whore from what I can tell. He almost never 2nd guesses Congresses right to use the commerce clause unless it runs afoul of something else like the 1st or 2nd amendment, and he’s ruled with the liberals quite often on commerce issues. I don’t think it’s a given that he’ll oppose this.

    That doesn’t mean he’s not a scumbag, though.

  34. 34.

    Tom Q

    April 2, 2012 at 4:54 pm

    @Brachiator: Some say it did, by a roundabout route. The court-packing plan itself didn’t go through, but some members of the court were sufficiently cowed by the effort they began ruling FDR’s way more regularly. An actual case where the bully pulpit had some effect.

  35. 35.

    Culture of Truth

    April 2, 2012 at 4:54 pm

    doesn’t hold water. Plenty of laws have been struck down, and by definition every single one passed with a majority in the legislature, else they wouldn’t have become law in the first place.

    True enough, but he’s using their own words against them.

    Drive the point home that the extreme faction of the court is seriously considering taking health insurance away from 50 million people and that the GOP thinks this is a good thing.

    Obama’s arugment has more of constitutional basis, since conservatives are always yammering about deferring to the legislature not merely because of policy preferences but as a judicial and constitutional philosophy.

  36. 36.

    chopper

    April 2, 2012 at 4:57 pm

    @Culture of Truth:

    well you have to remember, in the conservative mind the scotus should defer to a republican congress but not a democratic one. because GOP-passed laws are assumed to be constitutional and dem-passed laws are assumed otherwise.

  37. 37.

    Culture of Truth

    April 2, 2012 at 4:58 pm

    I think there should be an even number on the court. The two sides would pick their strongest member to arm wrestle to break a tie.

  38. 38.

    Enhanced Voting Techniques

    April 2, 2012 at 4:58 pm

    Isn’t this the kind of statement Obama made about the Catholic Bishops that triggered off Slutgate? I think this less about what the Court rules and more about triggering off another primal scream from the Right to show how crazy they are.

  39. 39.

    Mike

    April 2, 2012 at 4:58 pm

    @pragmatism: ‘Cos conservatives have NEVER criticized the Supreme Court ever!

  40. 40.

    Tractarian

    April 2, 2012 at 4:59 pm

    Obama puts it clearly:

    Unfortunately, legally speaking, he was not clear at all.

    The problem with SCOTUS potentially overturning ACA has nothing to do with the fact that ACA was “passed by a strong majority of a Democratically-elected Congress”. (By the way, that use of the word “strong” pretty much strips it of all its meaning, right?)

    Rather, the problem with overturning ACA is that the Court’s own precedent forbids it. Now, of course, they’re called Supreme for a reason – they can decide when and why to overrule precedent, at their sole discretion. But when the people trying to overturn precedent are the same people bellyaching for years about “judicial activism” and “legislating from the bench”… there’s your problem.

    And am I the only one questioning the conventional wisdom that it would be unwise to make SCOTUS a political target? FDR’s court-packing scheme may have failed in court-packing, but it may have succeeded in nudging the justices to be more New Deal-friendly. Similarly, obviously BHO is never going to have the votes in Congress to pass SCOTUS-limiting legislation, but it can’t hurt to threaten, can it?

  41. 41.

    Martin

    April 2, 2012 at 5:00 pm

    @butler: Point taken, but can you think of a case where SCOTUS overturned a new entitlement? Lots of cases where they turned down laws that restricted rights, but I can’t think of one off-hand that provided a new service which the court struck down. I think it would indeed be unprecedented.

  42. 42.

    Mike

    April 2, 2012 at 5:00 pm

    @Scott: Good point…

  43. 43.

    FlipYrWhig

    April 2, 2012 at 5:01 pm

    @Martin: My admittedly thinly-sourced impression is that Scalia really enjoys putting the lawyers through their paces, kind of like a professor who keeps asking devil’s-advocate kinds of questions just to see the students squirm. So when he brings up the broccoli example, or laughs at the idea of social norms dictating that emergency rooms treat traumatized people, he’s trolling. And what he really wants to do is get lauded for his cleverness.

    So I still hold out hope that he, Roberts, and Kennedy are interested in cooking up that “limiting principle” that distinguishes between health insurance and broccoli, and, when they do so, patting themselves on the back for how their cleverness outdoes that of any of the parties in the actual case.

  44. 44.

    Gin & Tonic

    April 2, 2012 at 5:01 pm

    @Martin: Where can I buy some of your optimism?

  45. 45.

    becca

    April 2, 2012 at 5:05 pm

    @Martin: The RATS Court needs to be called out loud and clear for the ideologues they are. That Obama has risked being accused of dumping all over the Supreme Rulers of Law may mean they are even more dangerous than I feared.

    Scary times.

  46. 46.

    butler

    April 2, 2012 at 5:11 pm

    @Culture of Truth:

    True enough, but he’s using their own words against them.

    Which is why I said that it sounded like it came from a GOP charlatan.

    Obama’s arugment has more of constitutional basis, since conservatives are always yammering about deferring to the legislature not merely because of policy preferences but as a judicial and constitutional philosophy.

    Which is true, except that they only say that when the courts don’t do what they want them to do. The only principle they consistantly care about is them getting their way. Trying to turn their words against them is a fool’s game because they don’t give a shit about the consistency of their own words.

  47. 47.

    Mike

    April 2, 2012 at 5:11 pm

    Attacking the Supreme Court could be dangerous. If word of this gets out, it could generate sympathy for the Rebellion in the Senate.

  48. 48.

    Elie

    April 2, 2012 at 5:12 pm

    Well, one thing for sure, if they overturn this law, they are gonna get plenty of heat and plenty of scrutiny.. (well deserved).

    I would like to be optimistic and I truly believe that overturning this would bring chaos to the healthcare sector and not a little to the Republican party, who may gloat very briefly, but then what? They will have broken it and do not have a solution and folks will be much worse off. Did I add that they will also have to bear the brunt (since they pushed for this so hard), of the debt shrinking impact of the ACA – particularly in the out years. I’m sorry, this is nothing but bad for them, the Supremes and of course, a whole lot of folks who need this desperately…

  49. 49.

    Lindershaw

    April 2, 2012 at 5:12 pm

    @randiego: The Washington Post has since amended their article to read “a democratically elected Congress”.

  50. 50.

    JWL

    April 2, 2012 at 5:12 pm

    Yup, that’s what Obama is doing, no doubt about it.

    Like the Court’s bag men give a flying fuck.

  51. 51.

    Riilism

    April 2, 2012 at 5:13 pm

    @butler: IMO, he was being overly nice in not getting into the absurd questions/positions being put forward by Scalia, et al., during oral argument. He was beginning the positioning prior to the possibility of the SC overturning. He has no access to the reasoning behind overturning since the decision has not been given yet. If they overturn, there will be plenty of time to get into why the SC is now making shit up, overturning precedent, and hamstringing the legislative process…

  52. 52.

    Culture of Truth

    April 2, 2012 at 5:13 pm

    @butler: Do you think they care more about being acccused of taking health insurance away from 50 million people?

  53. 53.

    butler

    April 2, 2012 at 5:13 pm

    @Martin:

    Point taken, but can you think of a case where SCOTUS overturned a new entitlement?

    Which is what Obama should have said (hopefully with a different word than “entitlement”, which has been turned into a negative). Point out that the ACA is in keeping with the precendents of all those other programs which stood up to judicial review. It strengthens the argument a lot more both rhetorically and politically.

  54. 54.

    Bulworth

    April 2, 2012 at 5:13 pm

    Obama called the legislation that requires the uninsured to purchase health care coverage “constitutional.”

    I wish someone in the librul media would point out that the mandate doesn’t actually mandate that health insurance be purchased. It does impose a fine if a person doesn’t have it, with substantial subsidies for those below a certain income level. But I realize none of this matters now.

  55. 55.

    Ocotillo

    April 2, 2012 at 5:14 pm

    Meh, the conservatives do not give a rat’s azz what he is saying, they got the power and will do whatever the heck they want. What’s he going to do, pass single payer? They will rule that unconstitutional too.

  56. 56.

    butler

    April 2, 2012 at 5:16 pm

    @Culture of Truth: No, but those 50 million people might care. If, in fact, they were informed of the possibility that SCOTUS could do that in a matter of months, and that the GOP wants it to happen.

    That’s the arguement to make. Not abstract discussions about the meaning and scope of the Commerice Clause.

  57. 57.

    Brachiator

    April 2, 2012 at 5:16 pm

    @Tractarian:

    FDR’s court-packing scheme may have failed in court-packing, but it may have succeeded in nudging the justices to be more New Deal-friendly

    Maybe not.

    There was an excellent Terry Gross interview with the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. The interview can be found here.

    A couple of points

    Roosevelt’s idea was that for any justice over the age of 70 who refused to retire, the president could appoint a new justice to sit beside the current justice and do his work….
    __
    Meanwhile, a number of Supreme Court Justices considered resigning en masse if the plan went through.
    __
    “Both Chief Justice Charles Evans Hughes and Justice Harlan Fiske Stone were eager to testify against the plan before Congress,” says Shesol. “Ultimately, they decided that this would really bring the court too directly into the political controversy. But they both worked very hard and very effectively behind the scenes to bring the plan down.”
    __
    Hughes wrote an open letter to the Senate deconstructing the plan, which Shesol says had a devastating effect. In addition, the court suddenly began upholding several parts of the New Deal, including minimum wage and the National Labor Relations Act. And then Justice Willis Van Devanter, a conservative, retired from the court, giving Roosevelt the chance to appoint his own justice. Shortly thereafter, Roosevelt’s proposition died.
    __
    Shesol says the makeup of the current Supreme Court points out some of the problems with Roosevelt’s argument.
    __
    “Age does not define ideology,” he says. “Even though Roosevelt looked at what he called the ‘nine old men of the Supreme Court’ and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt’s opponents. … So, you don’t hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we’ve come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt.”

    The Court began backing New Deal legislation, but FDR’s attempt to pack the court could have had disastrous consequences.

  58. 58.

    becca

    April 2, 2012 at 5:21 pm

    After the abominable 5-4 decision to allow strip searches for just about any offense that the RATS handed down today, it should be easier for the masses to see them for what they are if aca is ruled unconstitutional.

  59. 59.

    Ben Franklin

    April 2, 2012 at 5:21 pm

    @Martin:

    7-2 is my bet, as well. But,it’s not because they aren’t scumbags. They have Super-Egos and those egos are highly cognizant of their position in History.

    Bush v Gore still stings them, and they have been looking for equitable redemption since.

  60. 60.

    qwerty42

    April 2, 2012 at 5:23 pm

    @Brachiator:

    …Hope not. Didn’t work for FDR.

    Well, it didn’t. Officially. But, A switch in time Saves Nine. Still, I think there would actually be foaming at the mouth if that happened. The practical politics were one thing, but what is remembered is the official version of the “court packing”.

  61. 61.

    Culture of Truth

    April 2, 2012 at 5:27 pm

    If, in fact, they were informed of the possibility that SCOTUS could do that in a matter of months, and that the GOP wants it to happen

    They would…do what, vote against the GOP in the fall? Assuredly this will be an issue after the opinion handed down, in that case.

  62. 62.

    ChrisNYC

    April 2, 2012 at 5:30 pm

    Obama certainly wouldn’t go for court packing. He can though run against the Court, which FDR did — via stealth and surrogates and against a rabid collection of rightwing political clubs that were chanting “Save the Constitution!” — in 1936. Seems familiar, that. The Court was a silent party in the GE in 1936. Also, Alf Landon? Wasn’t he boring, moderate, assailed by crazies in his party for not being crazy enough? Why, yes, yes he was.

  63. 63.

    NR

    April 2, 2012 at 5:32 pm

    Gotta love this from Obama:

    “And I think it’s important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.

    Of course, this statement is flat-out false. The true version of it would read “And I think it’s important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate or a national single-payer system, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.”

    But of course Obama, being the corporate stooge he is, won’t even talk about single-payer. And so here we are.

  64. 64.

    Martin

    April 2, 2012 at 5:34 pm

    @FlipYrWhig: Yeah, I agree WRT to Scalia. Also consider that given he’s been accused of being political (hard to dodge that charge) that politics cut both ways. If he’s being political, he might simply be broadcasting to the right that he hears their arguments even if he rules against them.

    But I also trust that Ginsburg will pull him along a bit. For whatever reason, they’re buds.

  65. 65.

    starscream

    April 2, 2012 at 5:34 pm

    Ben Franklin, if that were true, Citizens United wouldn’t have happened.

    My guess is he’s extremely pessimistic about the outcome and is setting the stage for the next round.

  66. 66.

    BarbCat

    April 2, 2012 at 5:34 pm

    If they overturn it, it would be great to watch the Republicant Congresscritters this summer telling their elderly teaparty constituents, ‘no more free colonoscopies’ and that ‘the doughnut hole is back’. My 89 year-old mom will be spreading the word on the the western golf courses of Florida, in between putts.

  67. 67.

    pseudonymous in nc

    April 2, 2012 at 5:35 pm

    @becca:

    After the abominable 5-4 decision to allow strip searches for just about any offense that the RATS handed down today, it should be easier for the masses to see them for what they are if aca is ruled unconstitutional.

    That’s why I suspect 6-3 to uphold with Kennedy and Roberts: the strip-search 5-4 points to Roberts/Alito once again as the “we’re backing the powerful against the powerless” faction, which is distinct from the Scalia/Thomas faction. If “the powerful” in the ACA case isn’t the federal government, but the insurance companies, the idea of hastening their end

    And Roberts will want to be with the majority (and probably write the opinion) on this one.

  68. 68.

    Brachiator

    April 2, 2012 at 5:37 pm

    @ChrisNYC: Also, Alf Landon? Wasn’t he boring, moderate, assailed by crazies in his party for not being crazy enough? Why, yes, yes he was. Not quite.

    Landon proved to be an ineffective campaigner who rarely traveled. Most of the attacks on FDR and social security were developed by Republican campaigners rather than Landon himself. In the two months after his nomination he made no campaign appearances. As columnist Westbrook Pegler lampooned, “Considerable mystery surrounds the disappearance of Alfred M. Landon of Topeka, Kansas…. The Missing Persons Bureau has sent out an alarm bulletin bearing Mr. Landon’s photograph and other particulars, and anyone having information of his whereabouts is asked to communicate direct with the Republican National Committee.”
    __
    Landon respected and admired Roosevelt and accepted much of the New Deal but objected that it was hostile to business and involved too much waste and inefficiency. Late in the campaign, Landon accused Roosevelt of corruption – that is, of acquiring so much power that he was subverting the Constitution

    He lost in a landslide, but did what he could to help heal the country:

    The Republicans’ defeats in 1932 and 1936 plunged their party into a period of bitter intraparty strife. Landon played an important role in ending this internal bickering in 1938, in helping to prepare a new group of leaders for the presidential campaign of 1940, and in trying to bring about a compromise between the isolationist and internationalist viewpoints in foreign policy. Landon declined a position in Franklin Roosevelt’s Cabinet because he made his acceptance contingent upon the President’s renunciation of a third term.

    So, I guess we have to give the guy some props.

  69. 69.

    pseudonymous in nc

    April 2, 2012 at 5:38 pm

    @NR:

    Obama, being the corporate stooge he is, won’t even talk about single-payer.

    He also won’t talk about how you can’t have a fucking pony.

    But +1 purity points to you.

  70. 70.

    Culture of Truth

    April 2, 2012 at 5:38 pm

    Speaking of the court, today they issued an opinion in favor of criminal defendants’ rights. 5-4, Kennedy flipped, everyone else voting as you expect.

  71. 71.

    NR

    April 2, 2012 at 5:40 pm

    @pseudonymous in nc: Yeah, because wanting the best possible health care system, one that has worked time and time again in other countries, is exactly the same thing as wanting a pony.

    It’s a fact that single-payer is a method which will ensure that people with pre-existing conditions get health care. You can hem and haw all you like, but it won’t change that simple fact.

  72. 72.

    General Stuck (on self glorifiication)

    April 2, 2012 at 5:41 pm

    I think Obama said just what he should have, using the right wing’s own buzz words of “judicial activism” and framing it as a deference issue to the elected legislature versus unelected judges, also a RW meme.

    Scalia has made an ass out of himself with his broccoli bullshit, amongst other tea tard talking points uttered during the oral arguments, which ever way he votes now. And when he votes to overturn, he will just tell everyone to get over it, like he did with Bush V Gore.

    Kennedy knows full well what is at stake with taking away health care insurance for the 35 mill or so, that would happen if he votes to overturn the ACA.

  73. 73.

    Mike

    April 2, 2012 at 5:43 pm

    @becca: Ironically, that helps us. Kennedy wrote that opinion, and he didn’t seem as worried about “individual liberty” in that case. He strongly authorized government power.

  74. 74.

    Mike

    April 2, 2012 at 5:47 pm

    @Culture of Truth: “Speaking of the court, today they issued an opinion in favor of criminal defendants’ rights. 5-4, Kennedy flipped, everyone else voting as you expect.”

    On the same day that Kennedy authorized mass strip searches. He really is the Joe Lieberman of the court.

  75. 75.

    ChrisNYC

    April 2, 2012 at 5:49 pm

    @Brachiator: Umm, yeah, like I said, he was too moderate for his crazy party and he was boring. The conservative wing of the GOP couldn’t stand Alf Landon. Not conservative enough. Too mild. There were a bunch of non-affiliated GOP clubs that went after FDR on the Constitution — flyers, op eds, rallies and parades — but Landon wouldn’t. He also had the gall to support the New Deal rather than just waiting it out. (I read every Chicago Tribune for the year 1936 for a law school paper. Trust me. Alf Landon was boring.) FDR didn’t attack the Court directly. He didn’t say a word about them between the Schechter sick chicken case, where he flipped out in front of the press, and after the 1936 election. But, surrogates did the work for him. LaGuardia, I remember particularly.

    ETA — Too moderate and boring A LA MR ROMNEY.

  76. 76.

    Donut

    April 2, 2012 at 5:51 pm

    @randiego:

    I haven’t read the whole thread, so pardon if this has been pointed out already, but I think the President used the word “democratically” with the small “d” meaning in mind. I believe the sentence should be read to mean that Congress is elected by a democratic process, therefore the law they passed in some measure reflects the will of the people who voted for that Congress. Wherever that quote is cribbed from has a major editing fail, there.

  77. 77.

    Donut

    April 2, 2012 at 5:56 pm

    Someone at the Washington Post really fucked up, if that is indeed how the article reads. The President wasn’t talking about the Democratic Party, he meant the process by which the law was created was democratic. Not an unimportant distinction.

    ETA – I see the article has either been fixed or the excerpt in the main post is incorrect. The article shows a small “d’ for the word “democratically”.

    Hello, is this thing on?

  78. 78.

    wrb

    April 2, 2012 at 6:00 pm

    @Donut:

    I haven’t read the whole thread, so pardon if this has been pointed out already, but I think the President used the word “democratically” with a small “d”

    I’ve been wondering if many on the right still believe there is a distinction.

    Anything “democratic” must be bad, they figure. So when people point out that something was decided democratically, and imagine that they are communicating something good about it, they are actually just marking it “bad.”

  79. 79.

    Brachiator

    April 2, 2012 at 6:09 pm

    @ChrisNYC:

    ETA —Too moderate and boring A LA MR ROMNEY.

    i get the sense that Landon had some principles. I don’t get the same impression of Mr Romney.

  80. 80.

    Donut

    April 2, 2012 at 6:13 pm

    @wrb:

    Well, it’s not just a semantic argument. It’s not hard to find wingnuts who like to insist “the United States is a Republic, not a democracy.” They don’t have a fucking clue what those words mean, but I have seen this distinction made a lot lately.

  81. 81.

    Emma

    April 2, 2012 at 6:19 pm

    @Tractarian: It’s not a good threat if everyone knows it’s not going to happen.

  82. 82.

    wrb

    April 2, 2012 at 6:21 pm

    @Donut:

    good point

  83. 83.

    Hill Dweller

    April 2, 2012 at 6:24 pm

    @NR:

    Of course, this statement is flat-out false. The true version of it would read “And I think it’s important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate or a national single-payer system, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.”

    We are not getting single-payer any time soon if the ACA is struck down. Obama knows if the ACA and, more specifically, the mandate is upheld, it would be much easier to sell people on a non-profit/medicare-for-all alternative to for-profit insurance.

    In other words, building on existing legislation will be much easier than starting from scratch.

  84. 84.

    pluege

    April 2, 2012 at 6:41 pm

    Not only does that send a message to the court, but it also puts down a marker for Obama.

    Oh puuulllleeezzz!

    Earth to obama: the SCOTUS cretin 5 ain’t taken messages from you. Just the opposite. The more you say, the more your signature legislation goes down the tubes.

    Its a little late to be finding out you put your pride and joy in the vampires lair. You and your admin – dumb as a stump.

  85. 85.

    ChrisNYC

    April 2, 2012 at 6:43 pm

    So I love this being a campaign theme — fighting against the Court. You know, all the coverage of this Obama statement will surely be “hearkens back to FDR.” I also want Dems to take up this Commerce Clause fight, from a positive and offensive position, before the popular understanding of the Constitution is “guns” and “reserved to the states.” Also, nice to have such a close parallel to FDR since people love him and it’s a perfect way to talk about our modern FDR-started state so that people have some understanding of what the right wants to pitch out the window.

  86. 86.

    EriktheRed

    April 2, 2012 at 6:51 pm

    Somebody enlighten me here:

    If they have in fact already made their ruling, why are they sitting on it until sometime this summer???

  87. 87.

    NR

    April 2, 2012 at 6:52 pm

    @Hill Dweller: There is nothing to build on. The ACA enriches and empowers the private insurance companies. It takes us farther away from single-payer, not closer to it.

  88. 88.

    OzoneR

    April 2, 2012 at 7:23 pm

    @NR:

    But of course Obama, being the corporate stooge he is, won’t even talk about single-payer.

    Actually he did talk about single payer, he said if we were starting from scratch, that’s how he would go.

    “If I were starting a system from scratch, then I think that the idea of moving towards a single-payer system could very well make sense,” Obama said in response to the questioner in New Mexico, echoing comments he made during his presidential campaign. “The only problem is that we’re not starting from scratch. . . . We don’t want a huge disruption as we go into health-care reform where suddenly we’re trying to completely reinvent one-sixth of the economy.”

    You can disagree with him, but don’t act like he hasn’t mentioned it.

    washingtonpost.com/wp-dyn/content/article/2009/06/05/AR2009060503518.html

  89. 89.

    OzoneR

    April 2, 2012 at 7:29 pm

    Obama puts it clearly:

    Honestly, not really. It is not unprecedented for the court to overturn a law passed by a democratically-elected legislature. That’s what they supposed to do if they deem the law to be unconstitutional. They’ve done it before. That’s part of their job.

    They’ve declared over 150 laws or sections of laws passed by Congress unconstitutional, the first one being the Judiciary Act of 1789 in the case Marbury v. Madison.

  90. 90.

    Brachiator

    April 2, 2012 at 7:30 pm

    @EriktheRed:

    If they have in fact already made their ruling, why are they sitting on it until sometime this summer???

    Well, they have to take a vote, write opinions, etc. All that procedural stuff.

    A little more detail, from the Wiki:

    At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court’s practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court’s opinion to a Justice on his or her side. Drafts of the Court’s opinion, as well as any concurring or dissenting opinions, circulate among the Justices until the Court is prepared to announce the judgment in a particular case.

  91. 91.

    Hill Dweller

    April 2, 2012 at 7:30 pm

    @NR: As I said, if the government mandates buying insurance, it will be much easier to sell non-profit/medicare-for-all as an alternative to for-profit plans.

  92. 92.

    Gex

    April 2, 2012 at 7:41 pm

    @General Stuck (on self glorifiication): I wonder why he went all brocolli mandate. Future generations without benefit of the wingnut decoder ring and lacking the current noise machine will wonder what the fuck he is talking about. And of course, the actual legislation will not be helpful in finding out.

  93. 93.

    Lurker

    April 2, 2012 at 7:51 pm

    @NR:

    Yeah, because wanting the best possible health care system, one that has worked time and time again in other countries…

    Erm, France has the “best possible health care system”, and it’s not single-payer.

  94. 94.

    Omnes Omnibus

    April 2, 2012 at 8:01 pm

    @EriktheRed: They took a preliminary vote. Nothing is binding until the decision comes out. Justices will lobby one another. They will draft opinions calculated to bring others to their side. They will wheedle and cajole. Eventually, they will hold the final vote.

  95. 95.

    OzoneR

    April 2, 2012 at 8:14 pm

    @NR:

    Yeah, because wanting the best possible health care system, one that has worked time and time again in other countries, is exactly the same thing as wanting a pony.

    You can be this obtuse.

    There are a variety of different healthcare systems in the world, stemming from single payer systems like Canada and the UK to hybrid systems like France to private systems like Germany and Switzerland. France is actually considered the best of the bunch.

  96. 96.

    Mnemosyne

    April 2, 2012 at 8:35 pm

    @OzoneR:

    To be fair, NR is still convinced that Bill Clinton vetoed his signature health care legislation. You know, the legislation that died in committee.

    Oh, wait, his latest argument was that Clinton didn’t use the bully pulpit to force Congress to pass the legislation (because, as we all know, the president is totally empowered to force votes in Congress), so therefore that means that Clinton secretly hated the legislation and wanted it to die in committee.

    Really, there’s no point in even trying to argue with NR, because all he’s got is a few buzzwords (“single payer!” “veto!”) that don’t mean what he thinks they do, and yet he persists in using them. He doesn’t actually understand jack shit about healthcare anywhere, in any country. He doesn’t understand that Britain has single provider, Canada has single payer, and Japan has a completely private system.

    All he knows is that he hates Obama and all his works, so therefore PPACA is bad bad bad.

  97. 97.

    Daniel Thomas MacInnes

    April 2, 2012 at 9:41 pm

    Obama runs on the Republican health care plan from 1994. And if it gets overturned by the Court, he’ll run on the Republican meme of “activist judges.” But, of course, it won’t work, because appropriating the other party’s agenda and language won’t win voters. It only cements the conservative worldview, and validates it.

    Meanwhile, when does Obama actually plan on trying some Democratic Party ideas? Do the Democrats even have any ideas? This is going to be his biggest problem with rallying his base. When I have to choose between the Republican and the guy who wants to be a Republican, that’s not much of a motivation. And I’m acutely aware of how much chaos would ensue if the GOP regained full control of all branches of government in November.

    I’m still amazed that Obama’s people actually believed they could persuade Scalia on the mandate. Amazing! He still believes he can be the Republicans’ friend. At some point, they’ll have to deliver a Plan B.

  98. 98.

    NR

    April 3, 2012 at 12:01 am

    @Lurker: It’s mostly single-payer.

    While private medical care exists in France, the 75% of doctors who are in the national program provide care free to the patient, with costs being reimbursed from government funds.

    Sure, it’s supplemented with private insurance, but the core of the system is public.

  99. 99.

    NR

    April 3, 2012 at 12:05 am

    @Mnemosyne:

    To be fair, NR is still convinced that Bill Clinton vetoed his signature health care legislation. You know, the legislation that died in committee.

    Oh, wait, his latest argument was that Clinton didn’t use the bully pulpit to force Congress to pass the legislation (because, as we all know, the president is totally empowered to force votes in Congress), so therefore that means that Clinton secretly hated the legislation and wanted it to die in committee.

    I have no idea what you are talking about here. Maybe it makes sense in your head, but it has no connection whatsoever to reality.

    And as far as health care systems around the world go, the one that you and the Democrats support is inferior to single-payer. That’s a simple fact. People who live in countries with single-payer get better health care at a lower cost. It’s really that simple.

    But all you know is blind loyalty and obedience to a politician, so I don’t expect you to acknowledge that fact.

  100. 100.

    FlipYrWhig

    April 3, 2012 at 12:30 am

    @Daniel Thomas MacInnes: Maybe his first initiative should have been the biggest spending bill in history, in accordance with Keynesian principles, in order to jump-start a lagging economy. If only that had happened, maybe would-be so-called progressives would have given it a fucking rest already.

  101. 101.

    FlipYrWhig

    April 3, 2012 at 12:33 am

    @NR: Jesus fucking Christ with you. American politics are stupid, and, for that reason, your desired outcome cannot happen. Not because it’s not a good idea, but because it couldn’t pass a legislature with the best, most progressive composition in decades. Stop mooning over what could have been when it couldn’t have fucking been.

  102. 102.

    OzoneR

    April 3, 2012 at 12:39 am

    @NR:

    People who live in countries with single-payer get better health care at a lower cost. It’s really that simple.

    Also, too, people who live in countries who don’t have single payer. You can’t seem to admit that. Germany and Switzerland don’t have anything resembling single payer and they pay less and get good healthcare.

    But all you know is blind loyalty and obedience to a politician, so I don’t expect you to acknowledge that fact.

    oh get off of it NR, you sound deranged. This is what makes us believe this single payer crusade of yours isn’t genuine, because you go off on these crazy Obama derangement syndrome rants about blind loyalty and obedience.

    For your information, I don’t support single payer. Not now, because the transition would be too difficult. You can’t just change what is almost a fifth of the US economy like that in one shot. You can’t just put entire corporations out of business and not expect it to effect the economy and do you really think the Supreme Court is going to let you do that? You have to be living on another planet to believe single payer even has a shot at happening at once. I support it happening by inches, state by state would be the best way like in Canada. And if Obama had gone the single payer route, I would have said he made a mistake. Hell, I said he fucked up even talking about healthcare before the economy recovered. Does that sound like a blind loyalist to you?

    I guess I’m just a corporatist.

  103. 103.

    NR

    April 3, 2012 at 1:14 am

    @FlipYrWhig: The only reason that single-payer couldn’t pass Congress is because the Democrats didn’t want it to pass Congress. They had a huge majority in the House, and 60 votes in the Senate. It was within their power to pass single-payer. They chose not to.

    But you know, the fact that they didn’t pass single-payer when they could have isn’t even the problem. It’s that they didn’t even talk about single-payer. They didn’t even try to make the case for the benefits of such a system to the public. They took it off the table at the beginning of the process and got absolutely no concessions from the other side in return.

    Even if I grant you your contention that the Democratic leadership is not in the tank for corporate interests, the fact remains that Democrats are not willing to make the case for truly progressive policies. And if the “liberal” political party isn’t willing to try to build support for liberal policies, politics in this country will only move in one direction–to the right. This is not a sustainable situation, and it’s going to blow up in our faces–probably sooner rather than later.

  104. 104.

    NR

    April 3, 2012 at 1:18 am

    @OzoneR:

    You can’t just change what is almost a fifth of the US economy like that in one shot.

    The point is, health care shouldn’t be almost a fifth of our economy.

    Countries with single-payer spend an average of 6-8% of their GDP on health care. In the US, we spend 16%–and it’s going up.

    And we have two political parties in Washington dedicated to stopping us from adopting a system that could rein that in.

  105. 105.

    RickD

    April 3, 2012 at 1:20 am

    So…Obama’s going to use “activist judges” against Republicans, eh?

    Is he also going to say “I’m rubber, you’re glue!”

    Liberals who’ve been tired of hearing the “activist judge” label for decades aren’t going to be impressed to see Obama use the same language they’ve hated.

    And conservatives aren’t going to see this as anything more than a trick. They’re not going to be mad at a court that saved them from Obamacare.

    It’s one thing to stand up to a court that rules the Dred Scott case. In the current case, there’s just no principle to rally around, unless you think the mandate is a principle that people will rally around.

    If that is the case, I suggest you leave political analysis altogether.

  106. 106.

    BruinKid

    April 3, 2012 at 1:45 am

    @becca: RATS Court… hmm… I prefer using STAR Chamber. :-)

  107. 107.

    Rogers

    April 3, 2012 at 2:17 am

    All the “Obama fails us by not using the BULLY PULPIT” devotees should in fact love this (I do!).He’s taking one of the Wingnuts most venerable b-shit memes and throwing it right back in their faces

  108. 108.

    bob h

    April 3, 2012 at 7:59 am

    Obama’s shot at the Court seems consistent with knowledge on his part that they are deadlocked in their deliberations. Perhaps Roberts and Kennedy are going around and around about the mandate and everything else is on hold? I find it hard to believe the President does not know what the state of play is there.

  109. 109.

    jpe

    April 3, 2012 at 8:19 am

    @Belafon (formerly anonevent): Nah. The right doesn’t define activism as the opposite of deference to Congress.

  110. 110.

    Lurker

    April 3, 2012 at 12:08 pm

    @NR:

    And we have two political parties in Washington dedicated to stopping us from adopting a system that could rein that in.

    NR, the Affordable Care Act is what’s making Vermont’s shiny new single-payer system possible in the first place.

    The ACA’s Wavier for State Innovation allows states to use ACA funds to create their own health-care systems in 2017 if they can do it better and cheaper than the ACA. Vermont will use the Affordable Care Act funds to implement single-payer. Other states are welcome to follow if they truly want single-payer.

  111. 111.

    FlipYrWhig

    April 3, 2012 at 1:57 pm

    @NR: “The Democrats” include people who do not at all support single-payer, because they don’t see it as a legitimate use of government power. They also include scaredy-cats and people who are gun-shy about how hard it would be to convince people who _have_ health insurance _now_ that they should be glad it was being converted into a public service open to everyone. That is a tall order. And every time stuff like this comes up, you just wave it away. If you came up with a door-to-door public transportation system that would supersede cars, would you be surprised when car owners didn’t turn up in droves to turn in their cars for disposal?

    A single-payer health care system would be much better than what we have now. I agree with that. The problem is getting to that point by running a gauntlet of entrenched interests and non-boat-rocking politicians. Obama and Democratic leadership knew the score. They knew how previous efforts had failed and had brought out big guns and media manipulators. They acted accordingly. They even got hesitant conservative Democrats on board in the end. I don’t think you can then, after all that, just say they were DOIN IT RONG.

  112. 112.

    TenguPhule

    April 3, 2012 at 6:34 pm

    Liberals who’ve been tired of hearing the “activist judge” label for decades aren’t going to be impressed to see Obama use the same language they’ve hated.

    He’s appealing to common folk, salt of the earth, you know, morons.

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