Jun 28

About that Supreme Court Obamacare ruling

Abortion, Church, Law, Media, Politics, Society No Comments »

Nearly all the experts predicted it would wind up a 5-4 decision and that Anthony Kennedy would be the swing vote. They got it half right.

Nobody saw this coming.

Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s plan to expand health coverage to nearly all Americans, a surprise conclusion to a constitutional showdown.

The ruling clears the way for the biggest revamp of America’s health-care system since the 1960s—and sets the stage for a renewed political fight over its merits.

By a 5-4 vote, the court held the law’s mandate requiring Americans to carry health insurance or pay a penalty valid under Congress’s constitutional authority to levy taxes.

They were allegedly going to rule on whether it could be upheld under the Commerce Clause, and they did. The majority said it couldn’t. But Justice Roberts swung in another direction.

Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax.

Not even the White House prepared for that.

In fact, the high Court decision upholding the mandate as a taxing provision counters how President Obama has described the mandate in the past. The fact is that President Obama refused to frame the health care mandate as a tax during an interview with ABC News in 2009. The President flatly rejected the assertion that the penalty for not purchasing health care insurance should be characterized as a tax. “I absolutely reject that notion,” the President said.

So that’s likely going to be an issue in this presidential election year. A big one, given the size of this tax increase, coming from a president who has relentlessly insisted he would never raise taxes on the middle class. There’s no denying it’s a tax now.

And it may recharge the Tea Party coalition that helped Republicans take control of the House of Representatives in November 2010 on the staunch promise of not raising taxes and not compromising with anyone who proposed to for any reason. Maybe they’ll coalesce around Mitt Romney now that his election is the only way to stop the Obamacare juggernaut that will de facto tax Americans to pay for it. Who knows, this is day one and things have just changed. Dramatically.

Not only did no one see this coming, the White House, Democrats in and seeking office and the liberal media have been trying different strategies in the days and weeks leading up to the Supreme Court ruling to deflect what seemed like an inevitable setback for Obama. The New York Times ran a front page story, above the fold, on the justices dropping in public opinion polls lately, which seemed odd given that they’re the one body that doesn’t answer to the public.

Then that strategy turned to the more recent one of discounting the outcome before it happened, with news stories claiming Obamacare would still be significant reform no matter what the justices decided.

Then there was this, which was interesting. Especially read a day later.

It also was not the result some liberals and Democrats expected before the decision was unveiled this morning.

Little more than 12 hours earlier, the Senate candidate for whom Obama campaigned in Boston on Monday – fellow Democrat Elizabeth Warren – was on MSNBC saying the ruling would be a telling gauge for assessing the politicization of the Supreme Court.

“We need to use this moment to reflect on the importance of the Supreme Court and who sits on the Supreme Court,” Warren told liberal talk show host Rachel Maddow…

“The Supreme Court is wading into really deep waters, and is doing it in ways that, I think, worry us all, and I think it’s a reminder that who sits in the United States Senate, to review those nominations, to vote on those nominations, really does matter,” said Warren.

For emphasis, she added: “It will be about the Affordable Care Act tomorrow, but it will also be about the Supreme Court tomorrow.”

Yes, it sure was. About both. What are they saying now about the Supreme Court? About judicial activism, and the vetting of nominations? About the Affordable Care Act being a huge tax on Americans after all?

Stay tuned. There will be plenty. For starters, the focus moves to the Senate, where Harry Reid is asking everyone to move on now to something else.

And meanwhile, the HHS lawsuits move forward. While the Supreme Court ruling didn’t affect those suits, some justices gave dropped some loaded cues into their opinions that the tax for this healthcare still has to respect constitutional requirements, like “the free exercise of religion” to name one. More lawsuits sure to follow.

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Apr 06

Obama’s court challenge

Abortion, Church, Law, Politics, Society No Comments »

The question is not whether President Obama keeps making gaffes and mis-steps lately in public policy or public statements. My question, instead, is…are they calculated and to what end?

This blogger wondered the same thing, particularly about the so-called ‘accommodation’ allegedly adjusting the HHS mandate to suit religious liberty claims.

Has this been Obama’s goal all along – to set such an extreme, unconstitutional standard to begin with that he is now able to set a still unconstitutional standard while the public believes he’s being reasonable?

He’s mis-stepping alright, but more voices are saying his steps are intentional and defiant. Like these Bloomberg News writers.

President Barack Obama has shown a willingness to campaign against the U.S. Supreme Court if the justices strike down his 2010 health-care law. It’s a strategy that’s as risky as it is rare.

With the court months away from a ruling, Obama ratcheted up the political stakes this week by saying a decision to reject the law and its requirement that Americans get insurance would be “judicial activism” by “an unelected group of people.”

Taking on the court would mean fighting an institution that polls show is historically the most admired branch of government.

He’s already made it a campaign strategy to run against Congress, alienating or at least irritating the Democratic leadership in the Senate and all members of Congress in the president’s party. Now, he seems to be running against the Court, making weirdly bad statements about the separation of powers and law precedent, for someone who lectured at the University of Chicago on constitutional law. Washington Times editors give him an F here.

For someone who once taught classes at a law school, President Obama doesn’t seem to know much about the powers of the Supreme Court.

At a press conference Monday, Mr. Obama said he did not think the high court would rule that forcing Americans to buy health insurance was unconstitutional. “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,” he said.

There’s plenty of precedent for voiding a law like Obamacare. The top justices have invalidated more than 150 federal laws in part or in whole. Nor would there be anything extraordinary about such a step, as courts frequently make these types of rulings. In fact, it would be unprecedented and extraordinary for it to let stand the unconstitutional aspects of Obamacare.

There’s also no truth to the suggestion that Obamacare passed by a “strong majority.” The vote was 219 to 212, a razor-thin margin in which 34 members of the president’s own party voted no. The margin of passage has never been a factor in the Supreme Court’s review of any law. That’s simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate.

True, all true. But was it a blunder, or a strategy? That’s what provoked an appeals court judge to issue a testy demand the media called ‘a homework assignment’ to explain the president’s understanding of the courts, the law, judicial review and the separation of powers.

This blogger says it was a counter move that checked the president, who gets low marks on constitutional law.

What if the Supreme Court did not have the power to review laws or executive decisions, to overturn those that are “unconstitutional” – how different might life be in the United States? Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have that power, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court’s ability to render its decisions about laws and actions. In Marbury v. Madison, the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.

And the president back-pedaled while DOJ complied with the appeals court judge’s demand for an explanation.

Attorney General Eric Holder made clear Thursday that the Obama administration recognizes the authority of federal courts, including the Supreme Court, to rule on whether the 2010 health care reform law or any other laws passed by Congress are constitutional.

So what did we learn and what did the president accomplish? Well, Americans now know more about Marbury vs. Madison than ever before, safe to say.

And a former Obama student, who later clerked for the particular appeals court judge who challenged the president’s remarks about judicial review, has spoken out about all the media chatter.

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
 
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.

Now this is interesting…

(Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)

Exactly. The student has become the instructor (as has the appeals court judge), and this whole exercise has resulted in the transparency Obama promised in his presidential campaign, in spite of his ongoing efforts to avoid it.

Ironically, just three days before the January 20 HHS mandate was announced, Bill McGurn wrote this WSJ column on the administration’s overreach causing Americans to take a renewed interest in the Constitution. Its scrutiny has only increased since then.

Tagged with: • • • • • • •
Apr 02

The future of Obamacare

Law, Politics, Society No Comments »

The individual mandate requring citizens to purchase something was challenged from the beginning in state and appellate courts, and opening argument were just heard before the US Supreme Court. The HHS mandate requiring citizens to purchase something that violates their conscience is being challenged in a first round of lawsuits with more joining by the week.

One of the new games in town during last week’s Supreme Court hearing of arguments on Obamacare has been handicapping the justices likely ruling on this case, when one comes.

But ‘the best defense is a good offense’ strategy returns as the president takes a shot at the Supreme Court, actually using the term “judicial activism” as a warning.

And President Obama is pressing the ‘activist court’ charge.

“Ultimately, I’m 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,” Obama said at a Rose Garden news conference.

The majority he referenced was not quite that strong; Congress approved the law two years ago in hard-fought party-line votes after a divisive national debate. Republican presidential contenders say they will make sure it is repealed if the Supreme Court doesn’t throw it out first.

For a president to weigh in so forcefully about a case currently under deliberation by the Supreme Court is unusual, and it speaks to the stakes at hand.

He did, after all, write the book about audacity.

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Jan 11

‘The most important religious freedom test in 20 years’

Church, Law, Politics, Society 1 Comment »

The Supreme Court of the United States has been asked to hear some unusually pivotal cases in recent time, even for that increasingly political body.

In this one, theology was up for debate, as WaPo put it.

From homeland security to healthcare, the federal government now has the power to reach further than ever into American society. But so far, the feds have sensibly stayed out of the business of appointing religious leaders.

Now, in a stunning about-face, the Obama Administration has urged the Supreme Court to allow courts to decide virtually any dispute between a church and its ministers. In the administration’s view, juries and judges, not congregations and bishops, should have the final say on who is fit for religious ministry. Fundamental questions of theology would be resolved in the same way as slip-and-fall cases. Plaintiffs’ lawyers would go into a religious feeding frenzy.

The DOJ made this astounding declaration in its brief for a Supreme Court case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which some observers have called the most important religious freedom case in 20 years.

The ruling came today.

The Supreme Court of the United States has ruled unanimously in favor of a church’s right to be itself, and its freedom to assign its ministries:

This is an enormous and timely victory for religious freedom:

“In a groundbreaking case, the Supreme Court on Wednesday held for the first time that religious employees of a church cannot sue for employment discrimination.

“But the court’s unanimous decision in a case from Michigan did not specify the distinction between a secular employee, who can take advantage of the government’s protection from discrimination and retaliation, and a religious employee, who can’t.

“It was, nevertheless, the first time the high court has acknowledged the existence of a “ministerial exception” to anti-discrimination laws — a doctrine developed in lower court rulings. This doctrine says the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of such protective laws when the issue involves employees of these institutions.

Read the whole post and its links, Anchoress put it all together well. Picture Justices Scalia and Kagan jointly outraged “at the government’s constitution-shredding argument.”

Chief Justice John Roberts noted in the court’s opinion

this was the first time the high court has ever considered the “ministerial exception,”

…but likely the first among…more.

The Obama administration tested the waters with an extreme gambit. They’ve now established that this court, in its current make-up, will rule in favor of the churches against overt threats to the most fundamental of our religious freedoms. I expect that if Obama is re-elected, we’ll see continued–but measured–attempts to weaken religious freedoms, as it attempts to discern precisely where the lines are, and how they may be crossed. Chief Justice Roberts appears to acknowledge as much, in writing the opinion.

Meanwhile, this is very good–yes, reassuring–news.

For now.

Shot across the bow noted.

Tagged with: • • •
Nov 14

Is Obama healthcare law constitutional?

Abortion, Law, Politics, Society No Comments »

Shouldn’t that have been determined before it was passed?

Though one recalls former House Speaker Nancy Pelosi saying they had to pass the bill to know what was in the bill. Which was too gigantic for anyone in Congress to have actually read in the short time given before the final vote after rancorous battle and arm-twisting in congressional meeting rooms.

Putting aside for the moment other issues of contention with ‘Obamacare’ as it passed and continues to unfold, the main challenge is a basic one.

Is President Obama’s health-care overhaul constitutional or not?

It’s a question we’ve been asking here on this blog for a long time — and well before the law was passed in March of 2010. At last, some resolution is on its way.

All the top legal experts have been asking and working and preparing for this all along.

The Supreme Court of the United States today agreed to hear several ObamaCare challenges – putting the issue of the constitutionality of the flawed law front-and-center with a decision by the high court just months before the November 2012 elections.

This is the day we have been waiting for. It was clear that ObamaCare would ultimately be decided by the high court when it was signed into law nearly 20 months ago. By taking these cases, the high court can bring clarity and end the confusion about a law that most Americans have consistently opposed. We have argued from the beginning that ObamaCare – including the individual mandate – is unconstitutional.

That always seemed like the clearest question to answer on this convoluted package of plans and rules.

Here’s what’s clear – most Americans oppose the health care law. They have since it was passed more than a year-and-a-half ago. Now that the pro-abortion, government-run law is before the Supreme Court, we want to hear from you. It’s now more important than ever for you to voice your opposition to this flawed health care law.

ACLJ gives citizens the opportunity on that site to add their name to the amicus brief the law center is filing with the Supreme Court, along with over a hundred members of Congress.

CNN Senior Legal Analyst Jeffrey Toobin stated the obvious when he said this case has huge political implications.

“But I think it’s likely to be a close question in the Supreme Court, and it is certainly the most important case that the court has had since Bush v. Gore 11 years ago,” Toobin said.

Indeed.

And ‘No drama-Obama’ is now another catchy campaign slogan that seems like a distant memory.

Tagged with: • • •
Aug 20

A cause the ACLU won’t push to the high court

Law, Society No Comments »

The public display of the Ten Commandments. Maybe they’re noticing that the Supreme Court building displays Moses and the Ten Commandments, along with other important historical symbols of law and lawgivers.

For the fourth time since 2005, the ACLU has been defeated in its cause to remove the Ten Commandments from a larger educational display of ‘Foundations of American Law and Government.’ And once again…

The ACLU chose not to ask the U.S. Supreme Court to review the case, and now the time has expired to make such a request.

Mathew Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, was the prevailing counsel in the latest appeals court case, and he’s hoping it’s a closed one now.

“The Ten Commandments are part of the fabric of our country and helped shape the law. It defies common sense to remove a recognized symbol of law from a court of law. The ACLU might not like our history and might run from it, but the fact remains that the Ten Commandments shaped our laws and may be displayed in a court of law.”

Right. Now how many can you name? (Here’s help.)

Tagged with: • •
Aug 09

Justice Kagan style

Society No Comments »

Now that Elena Kagan has been sworn in as the newest Supreme Court justice, some of the media are musing over what we might expect over the next session or so. Interesting, how they’re framing the issues…

Like this LA Times piece.

The justices soon will be called upon to decide whether states like Arizona can enforce immigration laws, whether same-sex couples have a right to marry and whether Americans can be required to buy health insurance. Kagan’s record strongly suggests she will vote in favor of federal regulation of immigration and health insurance and vote to oppose discrimination against gays and lesbians.

This is cloudy terminology.

Arizona passed a law that applied (and therefore favored) federal regulation of immigration. But it’s been distorted in the reporting.

Federal regulation of health insurance is a broad phrase, but what the court will no doubt face is the challenge by the states to the federal mandate to purchase health insurance, which they claim is unconstitutional.

And the suggestion that Kagan will likely “oppose discrimination against gays and lesbians” is also purposely nebulous. People of goodwill tend to oppose discrimination against other people. Let’s talk, instead, about laws and social policies regulating what people do. We’ll be doing plenty of that come Fall, when the mid-term elections heat up and the Supreme Court opens its new session.

So here’s a request for big media: watch your language.

Tagged with: • • • •
Jul 13

Kagan’s quagmire

Abortion, Culture, Law, Politics, Society No Comments »

There’s no question Elena Kagan will be confirmed by the Senate to serve on the U.S. Supreme Court. But there are plenty of questions about her political ideology and its likely influence on the Court, questions she either dodged artfully, or ones that weren’t asked at all during that show they called a ‘hearing’…

The Chicago Tribune editors called it “Pointless” and there’s no disputing that.

She deflected every attempt to get her to reveal how she may come down on the great issues that await her on the court.

It’s the ‘system’ now, the editorial notes.

Ever since 1987, when Robert Bork participated in a stimulating discussion of his distinctive approach to constitutional interpretation — only to be rejected by the Senate — appointees have chosen to give their questioners as little information as possible, as pleasantly as they can. Senators have taken the opportunity to give long-winded speeches in the guise of questions for the nominee, to show how wise the senators are.

Especially those in the majority party, who know this is a slam-dunk anyway so they use the time for grandanding and soliloquy.

Senators would be far better off ransacking their writings, speeches and judicial opinions (if, unlike Kagan, they have served on the bench) for illuminating clues.

Actually, some did. And they tried to confront Kagan with her writings and political interventions in such consequential matters as partial-birth abortion. Though the ‘hearing’ process allowed her to evade the issues, she can’t and shouldn’t escape the scrutiny they raised.

Add pro-life Nebraska Sen. Mike Johanns to the list of lawmakers in the Senate who are officially opposed to the nomination of pro-abortion activist Elena Kagan to the Supreme Court Johanns joins several Republican colleagues who say Kagan is too much of a judicial activist to merit confirmation…”As an advisor to the Clinton administration, Ms. Kagan led the fight to keep partial-birth abortion legal. She even went so far as to insert her own personal beliefs in the place of science—extremely disturbing given the horrific nature of partial-birth abortion,” he said.

“When the Supreme Court struck down Nebraska’s ban on partial-birth abortions in 2000, it backed up its decision with language from a purportedly non-partisan physicians’ group. Yet it has been reported that the critical part of that statement was not written by doctors, but by Elena Kagan, who at the time was a White House policy adviser to President Clinton,” Johanns explained.

“This language essentially overrode scientific findings against partial-birth abortion in favor of Ms. Kagan’s view,” he concluded.

This support for a “monstrosity”  is enough to disqualify her for the highest court in the land, some are saying. And some it can’t be said enough…

The Washington Times released an editorial column today on the nomination of pro-abortion activist Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. The Times says Kagan’s supporting partial-birth abortion (infanticide) should be the “kiss of death” for her nomination…

The Times’ editorial staff is not surprised Obama would pick an abortion advocate who is credited with helping keep partial-birth abortions legal for years more as “this nomination is in tune with President Obama’s career-long devaluation of human life.”

The paper says Kagan “may be more responsible than anyone for keeping partial-birth abortion legal for an extra decade.”

When the Clinton White House considered legislation to make partial-birth abortions illegal, the American College of Obstetricians and Gynecologists (ACOG) reported it “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.”

The Times points out Kagan pronounced this news a “disaster” because “it could give Mr. Clinton reason to restrict partial-birth abortions. She then set to work convincing ACOG to add a sentence making the practice seem more reasonable. Courts later quoted that sentence in deciding bans on the procedure were unconstitutional.”

The magnitude of her involvement in making partial-birth abortion accessible is enormous. But that didn’t matter to the majority on that hearing panel…

Senators asked Kagan about the memos during Judiciary Committee hearings and she explained her actions away by saying she wanted to help ACOG form a more accurate opinion.

After citing her role in lobbying the medical organizations, the Times says senators need to keep this in mind when they vote.

“Democratic senators who harp about ethics – such as Pennsylvania turncoat Arlen Specter and Wisconsin Democrat Russ Feingold – should take offense at Ms. Kagan’s serious fudging under oath. Senate Democrats who claim to oppose partial-birth abortion – such as Nebraska’s Ben Nelson, Arkansas’ Blanche Lincoln and Nevada’s Harry Reid – should be held to account if they vote for her,” the Times wrote.

Which is why politicians aren’t exactly rushing to admit it.

And until they do, some keen observers like these ones at the WSJ are giving them the chance – and the nudge – to ask the right questions. Keen insight here…

…there’s some crucial unfinished business the Senate should insist on before voting on her nomination to the Supreme Court. To wit, she ought to recuse herself from participating as a Justice in the looming legal challenges to ObamaCare.

In response to Senate queries, Ms. Kagan has said she’ll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn’t one of them, though the cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10.

Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: “Was there at any time—and I’m not asking what you expressed or anything else—was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?”

Ms. Kagan: “There was not.”

Regarding a potential recusal, that’s not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

This is an incisive piece. Read it carefully, and consider…

Ms. Kagan would sit as Mr. Obama’s nominee on the nation’s highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.

If the damage hasn’t already been done…

Tagged with: • • •
May 11

Until Kagan is confirmed

Law, Politics, Society No Comments »

Senators will soon be involved in the confirmation hearings for Elena Kagan, President Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court. It’s a lifetime appointment, and big media aren’t giving the nominee much scrutiny. They’re  mostly spinning White House talking points in a montage of nearly identical sound bites, which over and over tell us about her ‘great mind’ and acceptability to a broad range of people.

Her confirmation is a certainty. So while the hearing process is still open, here’s some advice to senators who aren’t prepared to rubber stamp the nomination: ask questions. The nominee, herself, once advocated for a thorough examination of judges.

In a 1995 article for the University of Chicago Law Review, Kagan argued for probing, detailed inquiry during Senate confirmation hearings for federal court nominees, writing: “The kind of inquiry that would contribute most to understanding and evaluating a nomination is . . .  discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues . . . seeing how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces.” She has written that she found Justice Ginsburg evasive during her own confirmation hearings: “I was frustrated by what I called Justice Ginsburg’s ‘pincer movement’ — the tendency to say that questions were either too specific or too general to be able to answer, with little ground in between.”

So now what? Kagan is in Ginsburg’s place, being examined for her merit as a potential lifetime Supreme Court justice.

Would she answer such questions forthrightly? There are worrisome indicators that she would not.

She is on record for believing in the force of settled law, when it comes to a woman’s right to abortion. But then, she is very much against settled law on same-sex marriage and even the military’s policy with regard to homosexuality.

Kagan called the “Don’t Ask, Don’t Tell” policy “repugnant” and “immoral,” but repugnant to what? To her personal political sensibilities, or to the Constitution? Was that unanimous Supreme Court correct to rule against Kagan, or was it incorrect? She has referred to “Don’t Ask, Don’t Tell” as representing a “military policy,” but it was established through an act of Congress, and is therefore the American people’s policy. Should Joe Biden be banned from the Harvard campus for having voted for it? And what precisely is the constitutional weight of Elena Kagan’s repugnance or her sense of immorality?

Good questions. They should be asked….and answered.

Tagged with: • • •
Apr 28

Cross stays, Court rules

Culture, Law, Society No Comments »

This post should be called ‘Battle after battle’. First the ones that take the lives of our Armed Forces in active duty. Then the ones that take issue with the crosses in memorials that honor the service of the fallen.

Today, a victory for the cross. And reason.

The Supreme Court on Wednesday reversed a lower court decision that could have required removal of a cross that has stood in California’s Mojave National Preserve for generations.

Although it splintered [nice double entendre] in its reasoning, the court suggested strongly that the cross should remain because Congress has transferred the small plot on which it stands to a private group, addressing constitutional concerns.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”

Enough said? Should be. But where there are crosses, there are activist atheists….(one is tempted to say raising hell)….

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