The Supreme Court won’t be ruling on “The Affordable Care Act” until June. But predictably, the ‘foamers‘ on both sides of the political aisle have been effervescing nonstop since oral argument. Fatuousness, mindless partisanship and above all, hyperbolic saliva are the order of the day.In her “Men in Black” essay last week, expressing high dudgeon, Maureen Dowd of “The New York Times” took a verbal 2 x 4 to the Supreme Court over the heightened prospect that Obamacare will be overturned by Conservatives on the Court. She indelicately referred to them as “hacks dressed up in black robes.”
And David Dow, Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor at Rice University, wrote at “Impeach the Supreme Court Justices If They Overturn Health Care Law” that consistent with the views of Thomas Jefferson who tried to impeach Justice Samuel Chase, “impeachment is an option for justices who undermine constitutional values.”
Fat chance, though. Even Tom Jefferson didn’t pull that one off. Besides, I think Dow’s just blowing the foam off his latte macchiato, unless he’s thinking along more plausible Originalist Constitutionalist lines offered by law professors Saikrishna Prakash and Steven D. Smith to remove federal judges without impeachment since “the Constitution makes clear that federal judges do not have an absolute or a boundless independence.”
As for Dow’s putdown, law professor compadre H. W. Perry Jr., of the University of Texas-Austin objected, “If it’s not an impeachment of a high crime, it would compromise the independence of the judiciary.”
Fellow Texan Perry, though, was equally guilty of Texas-sized talk, stating that the high court “is popular among the people.” The reality is different. At the start of the 2011-12 term, the Supreme Court’s favorability was only markedly better than the other branches of government, which continue to be regarded in disrepute. According to a Gallup Opinion Poll, Americans’ approval of the U.S. Supreme Court has dipped to 46% and has dropped 15 points in the last two years. The latest rating is the lowest since June 2005 when it was 42%.
Obama riles ‘em up.
But what really got traction was President Obama’s press conference remark, “I’m confident that the Supreme Court will not take what would be an unprecedented step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Conservative columnist George F. Will who knows a thing or two himself about the “intellectual sociopathy” he ascribed to Obama, said the President “was absurd” for making those remarks. And reliably oblivious ABA President Wm. T. (Bill) Robinson III wrote “The Wall Street Journal” pleading for “all of our elected officials – and those aspiring to hold office – to continually demonstrate that the courtroom isn’t a political arena” – - – a message, which might’ve been infinitely more credible had it also been directed to supposedly apolitical jurists like the racist email repentant Richard Cebull.
And two prominent legal ‘talking heads,’ Jeffrey Toobin and Jonathan Turley, a couple of guys I inexplicably confuse as much as I do Javier Bardem and Jeffrey Dean Morgan, also chimed in with a choir book’s worth on the President’s remarks.
Turley took the traditionalist route prostrating himself before the god of an independent judiciary and admonished Obama for “a cheap shot and beneath a president” for raising the issue of judicial activism “that an unelected group of people would somehow overturn a duly constituted and passed law.”While on the other hand, the more favorably inclined Jeffrey Toobin accused the 5th Circuit of a “judicial hissy fit” over what the President said, saying “That was a perfectly appropriate comment by the President and it just shows how some of these Republican judges are just deranged by their hatred of the President. The President has no leverage over the Supreme Court. He can’t threaten. What’s he going to threaten to do? ‘If you rule this way, I’m not going to invite you to a State dinner’?”
Give ‘em wedgies?
All of which reminded me of what a lawyer of my passing acquaintance also asked, which was “How an elected official of any kind can ‘bully’ a group of people appointed for life. What’s he going to do, give them wedgies?”
But absolutist partisanship defines our pungent political commentary. And so Conservative barista Charles Krauthammer, almost 40 years later – - – still calls the Supreme Court’s 1973 decision in Roe v. Wade, the “ultimate judicial usurpation” and piles his own dollop of foam on the ‘Obama v. Scotus’ remark.
True believers on the Left see ideologues only on the Right. And Krauthammer’s reality is shaped by his own ideological myopia. There are no partisans among the five Conservative justices. No, he thinks “Partisanship is four Democrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.”
And it wasn’t that long ago when the GOP called for an inspector general watchdog to police the conduct of federal judges.
Laughable Grace.
Finally, this weekend, Conservative essayist Peggy Noonan, a writer I once admired but whose sing-song cadences eventually wore thin, unwittingly offered some unintended humor. Desperate to make her point to dress down Obama’s perceived indecorousness of the Court, the former Reagan speechwriter contorted herself into finding an exemplar of “grace” in John F. Kennedy. Would that be the same baptismal font of grace where intern Mimi Alford found none? See “Oh, for Some Kennedyesque Grace.”
Referring to Alford’s “affair” with JFK, Lowry recounted, “Ultimately, though, she was a plaything at the sultan’s court. He never kissed her. Once, as she was smuggled along on a trip with JFK, Dave Powers made her sit on the floor of his car to hide from the White House staff — unsuccessfully. During a White House swim, she says, JFK commanded her to perform oral sex on Powers, and, to her humiliation, she complied. Later, he prodded her to do the same for his “baby brother,” Teddy.”
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