Tuesday, May 29, 2012

SCOTUS "Gang of Five"

University of Kentucky ultra-liberal history professor Ron Formisano writes regularly for the Lexington Herald-Leader, Lexington, Ky. In his 02 May column, he informed the whole country and all the ships at sea that the Supreme Court includes members that form the “Tea Party Gang of Five.”

Formisano: “‘The Supremes’ once meant Diana, Flo and Mary, but now conjures the most political and partisan U.S. Supreme Court since the 1930s, or maybe since the 1857 Dred Scott decision. The Tea Party gang of five (Justices John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy) act virtually as an ally of the Republican Party, and some have engaged in breaches of ethics.” WOW! He didn’t say which ethics but at least didn’t compare the “gang” to Hitler, the usual liberal choice for defamation-mongering.

Formisano didn’t condemn the “gang” for something it had done; rather, he castigated the “gang” for something he just knows it is about to do, namely, deep-six Obamacare, officially titled the “Patient Protection and Affordable Care Act,” though some evil people consider its acronym PPACA to mean the “Physical Proportioning of Affirmative Care Act.”

Under this act, the appropriate czar decides who does and does not get a hip-replacement or (zounds!) who needs to check out and relieve Medicare of further payments. Contrarily, conservatives are nervous because of an element in the SCOTUS called the “Socialist Party Gang of Five” that threatens to approve PPACA.

The gang members might be enamored of something that legendary vaudevillians Groucho, Harpo, Chico, Gummo and Zeppo (Marxists?), might conceive, a zany reality show with the grand prize being the honor of pushing the old codger in the wheelchair off the cliff (a la the democrat TV commercial), a side-splitting skit straight from La-La-Land featuring a hopelessly insensitive republican drooling at the carnage.

Justice Kagan is an automatic aye-vote since she (not realizing that e-mail is so public) gushed her approval to colleague Laurence Tribe when the House passed the bill. “I hear they have the votes, Larry!! Simply amazing.” Stop giggling, y’all! At the time, she was solicitor general, involved in PPACA, and even appointed the main government attorney just in case the law was brought before SCOTUS.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Kagan should have recused herself because of that requirement and this gem that she uttered in the recent hearing before SCOTUS: “Why is a big gift from the federal government a matter of coercion?” For Kagan, government is Santa Claus and the reindeer are hapless taxpayers, who are indeed coerced.

Justice Ginsberg came up with this wisdom during the hearing: “Those who don’t participate in healthcare make it more expensive for everyone else.” That’s the same as saying those who don’t use automobiles make gasoline more expensive for everyone else, ergo, the government should demand that all citizens drive cars, never walk except to the bathroom or ride bicycles.

Justice Breyer remonstrated with the government’s lawyer over his constant use of the term “tax,” insisting that nowhere in the Act is that word used; rather, that the term “penalty” applies to the poor guy who can’t or won’t buy insurance. The fact that he also can’t pay the penalty, presumably according to Breyer, means that he must simply go to jail or the emergency room, whichever grabs him first.

Justice Sotomayor, whose watershed ruling concerning racial discrimination (she favored it), was overturned by SCOTUS while she was in the process of being confirmed said in the hearing: “Why don’t we let Congress fix it [PPACA]?” Fix what? SCOTUS would have to tell Congress what needed fixing but Justice Scalia was of the opinion that forcing SCOTUS to read the whole 2,700-page law was cruel and inhuman punishment. Indeed, the Congress-people didn’t read it, either, before or after passage.

Sotomayor favors the Act but maybe doesn’t know exactly why, except perhaps that President Obama (self-admitted Constitutional expert) said SCOTUS had never overturned an Act with such overwhelming Congressional approval. PPACA barely made it through the Senate on Christmas Eve night 2009.

That leaves Justice Kennedy as the possible fifth Socialist gang-banger, since justices Scalia, Thomas, Alito and Roberts are expected to vote some or all of PPACA un-Constitutional. Kennedy has been accused of siding with the cons but he voted for KELO in 2005, approving condemnation proceedings against a landowner in behalf of taking her land to let private retail enterprises and a medicine factory occupy it to make mucho greenbacks. Today, it’s bare and has become an eyesore dumping ground.

Kennedy also wrote the opinion in 2003 overturning laws banning sodomy, which overturned a 1986 SCOTUS decision doing the opposite. In other words, Kennedy is the loose cannon, so all bets are actually off. On the basis of KELO, he might think the government can do anything it wants with respect to civil rights concerning hip-replacements and appropriate demises, and on the basis of the sodomy thing (political correctness, donchaknow) he probably got sucked in by retired Justice Stevens (anything goes), who eschewed oral arguments in D.C. and famously (or infamously) did his duty from Florida.

Even the five wacky Marx brothers couldn’t make up such stuff as the Socialist Party Gang of Five. SCOTUS schleps in June! Meanwhile, the professor listens to old Supremes records and rants.

And so it goes.

Jim Clark

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