Tuesday, September 18, 2012

Jeffrey Toobin's new book, a warning to all Americans of a conservative tsunami

Roberts' interpretation of the Commerce Clause falls in line with how the conservative movement regards the clause, according to Toobin. The clause was used by President Franklin Roosevelt to establish modern social welfare programs — such as minimum wage, worker safety and other areas of economic development — and it was interpreted in that way by eight Supreme Court justices appointed by Roosevelt. The current conservative movement says that the interpretation was a "misreading," and that "there is a constitutional justification for cutting back on all sorts of federal regulations and activities — and the Commerce Clause is the way to do it," Toobin says.

He also says that by supporting Obama on this critical legislation, Roberts has indirectly "insulated the court from political challenge for a long time.
"Roberts has a big conservative agenda still, and he's going to be able to push that agenda without risking criticism now for being a political activist because of this vote," he says.
(Quote from Jeffrey Toobin's interview with Terry Gross on npr's Fresh Air, September 17, 2012, excerpted below)
So just what is the difference between the Tea Party and the Roberts' Supreme Court?
Merely the composition being played on the keyboard.
In the case of the Tea Party, the composition is the legislation, including the money bills of the U.S. Congress while in the case of John Roberts and his conservative majority, it is the legal cases that come before the court.
If Toobin is right, Obama's victory on the Affordable Care Act, from the Roberts Court, is nothing more than a phyrric victory, in order to "insulate the court from political challenge for a long time."
In any other country, the take-over of the branches of government by a small group of 'infidels' would be called a 'coup'...in the U.S. when it happens, without a shot being fired, it is called "politics as usual."
For Roberts to latch onto the Commerce Clause as his justification for his vote to approve Obamacare, and thereby to provide the shield he will need to protect the court from the charge that it is politically motivated in the future as well as the cornerstone of his (and others') arguments in favour of the "new" interpretation of that clause, overturning the precedents that have been set for nearly a century, is nothing less than a legal 'coup' which will reverberate through the towns and cities of the U.S. for decades.
People like Dick Armey and Grover Norquist, neither of them holding any public office, when linked politically to Justices Roberts, Scalia, Alito, Kennedy and Thomas, and also linked, through the pledges to Norquist's NO-TAX stranglehold on the government's business (by a vast majority of Republicans in both the House of Representatives and the Senate) have effectively rendered Obama and the Democratic party emasculated, insofar as their capacity to effect the kind of change that the country both needs and deserves.
There will be many cases coming before the Supreme Court in the next decade, including the promise to overturn Obamacare, the promise to overturn Roe v Wade, the promise to dismantle the Department of Education, and the commitment to 'gut' entitlement programs thereby rendering the dispossessed as emasculated as this gang have already rendered the Democrats and everyone knows how those decisions will come down, based on the recent evidence from Roberts himself and the court in cases like Gore v Bush, and Citizens United.
It is former president Clinton who reminds us frequently, that politics is both a contact sport and a blood sport.
And, for those of us who shy away from open hostilities, especially the shedding of blood, "politics as a blood sport" is a little more than we prefer.
However, there is a war going on in the U.S. over the hearts and minds of the people.
And that war is being funded, legally and ravishly, by individuals who are reported to be willing to write cheques up to $12 million to support the Romney campaign for the White House.
So it is not only the campaign for the presidency that is at stake.
So are the future appointments to the Supreme Court that are in the balance.
And there is clearly no doubt that the appointments that would be made by Romney will be very different from those made by Obama, as in Sotomayer and Kagan.
There is also no doubt that Obama's "hold to the precedents" position on the Supreme Court is far more in line with the legal tradition, history and methodology than is Robert's radicalization of the overturning of precedent, as evidenced by Toobin in his view of the Commerce Clause. And Obama's constitutional legitimacy takes no back seat to Robert's; in fact, if pressed, the people of the U.S. would likely side with the Obama position on legal precedent.
Ironies abound:
The Tea Party wants a smaller government, so long as they have control of all the levers and then they want to use those levers to achieve the kind of change they deem necessary, even if that includes the overturning of one of the cornerstones of U.S. government and history in the Supreme Court.
The big-spending Democrats (by public propaganda from the 'right') are, to use Obama's position on legal precedent, much more comfortable with holding to legal tradition, precedent and evolution, and certainly not revolution.
The Tea Party backroom boys, specifically Armey and Norquist, are merely retro-throwbacks to the old oligarchies from which the original colonists who came to North America were trying to escape, yet they meet them in new names and new suits on their own shores, where the original spirit of democracy, freedom and equality are retained, to a much greater degree, by the Democrats.
If you think this election doesn't matter, to the people of the U.S. and to the people of the rest of the world, you must have been asleep for much of the last four years.
Wake up and smell the dandelions; these weeds are quickly taking over the lawn in the U.S. government!

The Oath The Obama White House and the Supreme Court by Jeffrey Toobin
Toobin is a staff writer at The New Yorker and a former assistant U.S. attorney. He's the author of the best-selling book The Nine: Inside the Secret World of the Supreme Court.
Toobin was interviewed by Terry Gross on Fresh Air on NPR yesterday, September 17, 2012
From the Fresh Air website, September 17 2012

During his 2008 presidential campaign, Barack Obama ran on the platform of "change we can believe in" — but he has a different approach to the Supreme Court's interpretation of constitutional law.

"Obama is a great believer in stability — in the absence of change — when it comes to the work of the Supreme Court," Jeffrey Toobin, author and senior legal analyst for CNN, tells Fresh Air's Terry Gross. "He is the one trying to hold onto the older decisions, and [Chief Justice John] Roberts is the one who wants to move the court in a dramatically new direction."
Obama and Roberts have remarkably similar backgrounds in their legal training: Both went to Harvard Law School, and both worked on the Harvard Law Review. But "they have come to dramatically different conclusions that are reflected in every aspect of how the government works today," Toobin says.
In his new book, The Oath: The Obama White House and the Supreme Court, Toobin describes how the Supreme Court's 2010 Citizens United decision and the Affordable Care Act ruling from this year show how the Constitution is being reinterpreted — and how Supreme Court precedent is being quickly overturned.
"It used to be that what it meant to be a conservative on the Supreme Court was respect for precedent and slow-moving change," Toobin says. "What's so different about the Roberts court is the way they are burning through many of the precedents they don't like."
Toobin says the recent Affordable Care Act decision — in which Roberts claimed that Obama's health care plan would not be legal under the Commerce Clause, but could be upheld as a legal tax — is a step toward overturning Supreme Court precedent.
Roberts' interpretation of the Commerce Clause falls in line with how the conservative movement regards the clause, according to Toobin. The clause was used by President Franklin Roosevelt to establish modern social welfare programs — such as minimum wage, worker safety and other areas of economic development — and it was interpreted in that way by eight Supreme Court justices appointed by Roosevelt. The current conservative movement says that the interpretation was a "misreading," and that "there is a constitutional justification for cutting back on all sorts of federal regulations and activities — and the Commerce Clause is the way to do it," Toobin says.
He also says that by supporting Obama on this critical legislation, Roberts has indirectly "insulated the court from political challenge for a long time.
"Roberts has a big conservative agenda still, and he's going to be able to push that agenda without risking criticism now for being a political activist because of this vote," he says.

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