I read a report the day after the Supreme Court handed down its execrable decision on the Destroying Affordable Care and Patient Protection Act that Governor Bobby Jindal declared that Louisiana still will not bow down to this infernal law. I hope he sticks to his determination, and I hope the other governors follow his lead. This decision carries no moral weight, and does not need to be followed. I have been waiting for three days for some big-time conservative commentor to point out why this is so, but no-one has, so I will.

This decision is of no legal or moral force because Chief Justice John Roberts (the new poster child for Beltway Fever) was not the deciding vote.

B.O.'s Solicitor General Elena Kagan was.

In one of the most flagrant cases of stacking the judicial deck in American history, Barack Obama placed his own Solicitor General on the Supreme Court. It was a more modest strategic move than FDR's infamous court-packing scheme in the 1930s or Jimmy Carter's federal court expanding of the late 1970s (less famous than FDR's scheme, this nearly doubled the number of federal court judges – all appointed by Democrat Carter, of course). However, this scheme of Obama's took court-packing in a new, dangerous direction, for it gave him another solicitor in the chamber. Not only would he have his official Solicitor General making the case for this freedom-crushing edict, but he would also have his “former” Solicitor filling in the gaps and correcting the mistakes in the official argument. Anyone who heard the oral argument of the case knows that Kagan was still representing the administration, and not impartial justice. Several times Donald Verrilli seemed to be losing ground defending the indefensible, and “former” Solicitor General Kagan would get him “back onto the rails”. Many commentors claimed that it has not been uncommon for Justices to suggest lines of argument to attorneys arguing before the court. Perhaps, but it is not common for the person who had been tasked with building the argument to be presented to the court in the future to then be placed on the court to here and rule on the argument that they themselves actually built!

I am frankly astounded that the same pundits who argued that Kagan must recuse herself from any role in any case stemming from the Obama-doesn't-care law because she had held the Solicitor General post in the administration during that crucial period when the legal strategy for defense was being formed all seem to have suddenly forgotten her name now that the decision is here. They mainly have targeted Chief Justice John Roberts for his seeming cringing turnaround, and indeed there is much to be criticized in his decision. (His decision, that is, to please the Beltway mob instead of defend the Constitution, which is his sworn duty.) Roberts' decision is at least apparently honestly wrought, but Kagan's very involvement was corrupting from the start.

I urge the governors of the states that joined together to oppose this monstrous law in open court to follow Governor Jindal's lead and declare that since the court which decided this case was not legally constituted to hear this particular case, due to the taint of partiality on Justice Kagan, their states are not obligated to respect this decision, and that they will not.

The future of America may depend on it.

Department of Fog

I was reading an unintentionally hilarious article written by one Joan Biskupic, and published at the Reuters blog.  It is a classic of Tiger Beat reporting, as the author is clearly infatuated with her subject.  (Go ahead and make the joke.  I probably would, too.)  The article tried to persuade the reader that Supreme Court Associate Justice Elena Kagan is an intellectual giant, easily capable of besting Stephen Douglas and Abraham Lincoln on the same day.  Quotes like "... she can also match wits with Chief Justice John Roberts and Antonin Scalia..." and the opening sentence, "During three days of arguments ... Supreme Court Justice Elena Kagan put on a display of rhetorical firepower, reinforcing predictions that the newest liberal justice is best equipped to take on the conservative, five-man majority controlling the bench." had me desperately suppressing my laughter, as I did not want to awaken my sleeping wife.  Then I was brought to a full stop when I read this:

Marshall ... was, with the late Justice William Brennan, a standard bearer for a liberalism that has all but disappeared from the federal bench.  (I wish. -- HC)  They ... favored broad-scale solutions for past racial discrimination."

When you read "broad-scaled solutions" in the above sentence, you should read it for its true meaning -- rewarding those who suffered no harm by punishing those who did no wrong.

From National Review Online's Bench Memos (note highlighted sentence):

Tribe to Obama: Sotomayor Is “Not Nearly As Smart As She Seems To Think She Is”

I’ve obtained a copy of an interesting letter that Harvard law professor Larry Tribe wrote to his protégé, President Barack Obama, in the immediate aftermath of Justice Souter’s announcement of his decision to retire from the Court. I will post a PDF of the letter shortly. [Update:  Here’s the letter.] In the meantime, I’ll call attention, in this post and two or three others, to some of its highlights.

The express purpose of Tribe’s letter is to urge that Obama nominate Elena Kagan to the Souter vacancy. But before making his affirmative case for Kagan, Tribe argues strongly against the alternative of nominating Sonia Sotomayor:

Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

Tribe then discusses possible candidates for a future Stevens vacancy and pointedly doesn’t mention Sotomayor even for that vacancy.

Readers of this  clever, perceptive (if sporadically updated) website have known this for a long time now.  Justice Somediocre is an intellectual nullity, a poster child for repealing all affirmative action laws, and was appointed to the Supreme Court (in my opinion) to discredit that great American institution.  Of course, it doesn't really deserve the credit that it retained before this embarrassing choice, but this sure didn't help.  It's a pity no-one in the major media told us this before her confirmation.

And don't get me started on Elena Kagan...

I hope someone listens closely to the tape of new Supreme Court Injustice Elena Kagan (aka "What you get when you don't stop Sonia Sotomayor") taking the oath to serve on the Supreme Court.  I suspect she may have substituted "subvert and offend the Constitution for "protect and defend the Constitution".