Nuts to Them...

So says Mark Steyn, on the occasion of a particularly galling ruling by the Canadian Supreme Court.  Mr. Steyn has a short piece on the ruling, with this conclusion:

...In Canada, the law denies "the right to say his piece" to the likes of Bill Whatcott, a man who believes that homosexuals are sinners and in need of God's grace and forgiveness, but it has no objection to those who think homosexuals are evil and should be put to death. Mr. Philips need never fear the scrutiny of the "human rights" commission, or the cost of ten-year legal battles.

No homosexual needs the state's protection from Bill Whatcott. But all of us need protection from nitwit jurists blithely sacrificing core Western liberties to ideological compliance. It's not about Left vs. Right, gay vs. straight, religious vs. secular; it's about free vs. unfree. And on that most profound question, Canada's supreme court is on the wrong side. Nuts to them.

But do go read the whole thing...

Oh, Please! Pretty Please with Sugar On It!!!

Oh, please let this work!

Yet Another Reason...

...to admire Supreme Court Justice Clarence Thomas.

The ObamaCare Ruling...

Watching SCOTUSblog yesterday as the ObamaCare decision was made public, I was as surprised as anyone.  Like many who aren't “progressive”, my first reactions were dismay and anger at the result (ObamaCare upheld!) and utter surprise at the deciding vote (Roberts).  My thoughts tended toward things like alcohol consumption and firearms acquisition.

After getting home from work last night, I set off on a reading junket to see what some smart people were saying – and I was more than a little surprised to see some positive and even optimistic interpretations of the decision from a libertarian or conservative perspective.  A few folks who were most definitely not of the “progressive” persuasion even went so far as to admire Justice Roberts' opinion – and a few “progressives” saw the same issues as dangers for their side.

At this point I can't tell whether these are after-the-fact rationalizations of a bitter decision (lipstick on a pig, so to speak), or if Roberts actually has done the non-progressive world a favor with this decision.  The ideas certainly are interesting, however.  At the end of this post is a collection of links to the original material I read through.  The main lines of hopeful thoughts I read about (in no particular order):

• The part of the decision that struck down the mandate but turned it into a tax is the first Supreme Court ruling that sets a precedent for limiting Congress' powers under the commerce clause.
• The mandate/tax has the effect of shifting a huge part of the cost of medical care to younger people, which you'd think would motivate younger folks to fight the law.
• The ruling materially raises the probability that Obama will be defeated in November, both by boosting Romney's appeal and by re-energizing the Tea Party and other limited-government folks.
• The ruling materially raises the probability that Republicans will have the Presidency, the House, and the Senate in January 2013 – and therefore materially raises the probability of an ObamaCare repeal.
• Tax bills (which ObamaCare now is) can't be filibustered.  This vastly decreases the political difficulting of repealing ObamaCare: the Senate now needs just 51 votes instead of 60.
• The transformation of the mandate into a tax means the ObamaCare bill is imposing a new tax.  The Constitution requires any such bill to originate in the House of Representatives; the ObamaCare bill originated in the Senate.  This presents the possibility of a Constitutional challenge on much firmer grounds than the challenge just ruled on.  Some are proposing that Roberts did this intentionally, so the law could be struck down in a bipartisan fashion.
• The part of the decision ruling that terminating Medicaid funding to states that didn't participate in the Medicaid expansion is actually a significant reining in of federal power over states – and could lead to challenges of other laws that diminish state's rights.

Even in aggregate, the above are not as immediately satisfying as having ObamaCare struck down in its entirety would have been.  They may, however, be better than what many considered the likliest ruling: striking down the mandate, but allowing the rest of ObamaCare to stand.  While I'm no Republican, the prospect of defeating Obama and repealing ObamaCare is very attractive (even more so that a Supreme Court takedown), so I can take some solace in that...

The pile o'links:

• Medicaid impact
• More Medicaid impact
• Commerce clause thoughts
• More commerce clause thoughts
• Taxes and generation cost shifting
• The activity/inactivity line of argument
• Young people screwed by ObamaCare
• Commerce clause precedent-setting
• Even more Medicaid impact
• An act of great cunning?
• Good news for Romney
• Yoo and Epstein podcast
• The gift and the repeal pledge
• Even more commerce clause thoughts, plus politics
• Political genius?
• Major limits on Congress' power
• Lost the battle, won the war
• Everybody wins
• A weird victory for Federalism
• Roberts' Gambit

Takedown!

Ann Althouse (one of my favorite bloggers) does a spectacular takedown of Jonathan Turley's proposal to pack the Supreme Court (a la FDR).  It's a thing of beauty, her takedown – one imagines Turley's ego lying shredded on the floor...

Hope and Change...

The news from the Supreme Court's oral arguments on Obamacare sure sound hopeful...

Politics can be Ugly...

Under pressure from the Obama administration, St. Paul withdrew from a case they believed they could win at the U.S. Supreme Court.  Today's Wall Street Journal has an article about it.  The case is most likely too complex to be useful in the campaign, but it's quite telling to anyone paying attention.  The WSJ's conclusion:

St. Paul released a statement Friday saying it "likely would have won" at the Supreme Court but that "such a result could completely eliminate 'disparate impact' civil rights enforcement, including under the Fair Housing Act and the Equal Credit Opportunity Act. This would undercut important and necessary civil rights cases throughout the nation. The risk of such an unfortunate outcome is the primary reason the city has asked the Supreme Court to dismiss the petition."

To sum up: St. Paul has spent taxpayer money for almost a decade fighting a case to force slumlords to provide the poor—including minorities—with better housing. But just as it was on the cusp of what it claims would have been a victory at the Supreme Court, the city withdrew its appeal under pressure from the Obama Administration and liberals who feared they might lose a weapon of dubious legality that they want to use to tell banks how and to whom to lend.

It's enough to recall the old joke that liberals love the poor in theory—it's the actual poor they have a problem with.

McDonald v. Chicago...

Randy Barnett finds the important bit.

Interesting how the much-disparaged Justice Thomas is the one to successfully ressurect the 14th Amendment's “Priveleges and Immunities” clause...

Our Farcical Confirmation Hearings...

Peggy Noonan weighs in on Senate confirmation hearings of Supreme Court Justices, and how they've degenerated into a podium for degenerate Senators to bloviate from.

Every time I catch a clip of a Senator holding forth in confirmation hearings, this little ditty starts playing in my head:

Rope.
Tree.
Senator.
Some assembly required.

Elena Kagan...

The WSJ has a good summary of Elena Kagan's background and experience.  There's lots more on the intertubes.

My own take: she's far less bad than someone Obama might have appointed if the political situation wasn't so disastrous for the Democrats right now.  I suspect he and his aides have done the political calculus, and are betting that Ms. Kagan has the right combination of relatively mild leftism and absence of rabid anti-conservatism to at least have a chance of making it by the Senate.

It could have been much worse...

Sad Kelo Update...

Remember Kelo v. City of New London, the notorious (and puzzling) decision by the U.S. Supreme Court that defined the circumstances in which eminent domain can be used to take private property, specifically to include cases where the only “public good” is increased tax base for the government concerned?

Well, it's back in the news.  After the Kelo decision, the city of New London did in fact condemn the affected property, and bulldozed the houses.  Then the original developer who wanted the land backed out.  Now the city has announced plans to build townhouses on the condemned property.  So this entire affair in the precipitating case has come to naught: the city's revenue is essentially unchanged, and the citizens lives were disrupted for no reason.

How sad.  And how very un-American.  I'm still angry about Kelo, years later...

Uighurs...

Here's the lead of an excellent editorial over at the National Review:

Last June, five Supreme Court justices dreamed up a constitutional right for aliens held as enemy combatants to challenge their wartime detention in court. Now the bitter fruits of the Boumediene decision are plain to see: In Washington, a federal judge has ordered the release — into the United States — of 17 men captured near Tora Bora after the American invasion of Afghanistan.

The men are Uighur Muslims from China. And therein lies the key to this convoluted tale. The outpouring of media sympathy for the Uighurs suggests that they were on holiday when they were mistakenly swept up by invading Americans. In point of fact, they had trained at jihadist paramilitary camps, where they were schooled in bomb construction, close combat, assassinations, and the like. Specifically, the Uighurs are tied to an al-Qaeda affiliate, the East Turkestan Islamic Movement, a designated terrorist organization. As terrorism researcher Thomas Joscelyn has documented, several of them were fighting against our troops. Their capture was entirely proper. And predictably, many of them have joined forces with other jihadists held in Guantánamo Bay to riot and assault American guards.

This is a wonderfully clear example of the consequences of a court that has no problem distorting the Constitution into something it was never meant to be. It is impossible for any rational thinker even to imagine that the Founding Fathers would have agreed with this Supreme Court decision – much less the consequences of it in this case.

In recent years my view of the Supreme Court has completely flip-flopped. I used to think of them as sort of the safety net – the restraint that would keep the elected politicians from doing something really outrageous or stupid. Now I think of them as the enablers, and in some cases the leaders, of this country's stampede toward socialism. If The One is elected, and manages to pack the court with more justices of the Ruth Ginsberg ilk, this is only going to get much worse...

A Fine Essay

Yesterday the Supreme Court handed down a decision on free speech for students of public schools (Morse v. Frederick, aka the "Bong Hits 4 Jesus" case). From my perspective, the decision itself was disappointingly narrow and limited, and it was yet another 5-4 split. But there's a surprising gem contained within the decision, which I read early this morning. Justice Clarence Thomas -- a first-rate thinker and communicator -- joins the opinion, and writes a separate opinion. That opinion could stand alone as a fine essay on the state of our public schools -- and he forthrightly says that he'd like to overturn the 1969 Tinker v. Des Moines Independent Community School District case that in his view is the direct cause of much of our educational system's current dysfunction. His opinion starts on page 19 of the document linked here -- it's well worth taking the time to read. I'll excerpt here just the conclusion:

In place of that democratic regime, Tinker substituted judicial oversight of the day-to-day affairs of public schools. The Tinker Court made little attempt to groundits holding in the history of education or in the original understanding of the First Amendment.8 Instead, it imposed a new and malleable standard: Schools could not inhibit student speech unless it “substantially interfere[d] with the requirements of appropriate discipline in theoperation of the school.” Inherent in the application of that standard are judgment calls about what constitutes inter-ference and what constitutes appropriate discipline. Historically, courts reasoned that only local school districts were entitled to make those calls. The Tinker Court usurped that tradi-tional authority for the judiciary.

And because Tinker utterly ignored the history of public education, courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles. Just as I cannot accept Tinker’s standard, I cannot subscribe to Kuhlmeier’s alternative. Local school boards, not the courts, should determine what pedagogical inter-ests are “legitimate” and what rules “reasonably relat[e]”to those interests.

Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has proved prophetic. In the name of the First Amendment, Tinker has undermined the traditional authority of teach-ers to maintain order in public schools. “Once a society that generally respected the authority of teachers, de-ferred to their judgment, and trusted them to act in thebest interest of school children, we now accept defiance,disrespect, and disorder as daily occurrences in many of our public schools.”

We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.”

I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

Someone please hand that man a case he can use to overturn Tinker!