The Judiciary

Don't miss the excellent story in The Hill by Justin Sink about Supreme Court Justice Antonin Scalia comparing homosexuality to murder, by equating views about laws against homosexuality to views about laws against murder. Asked about this and fairly quoted in The Hill's story, Scalia gave a mini-seminar about the style of argument called "reduction to the absurd." If Scalia wants to insult the intelligence of law students with this nonsense, that is the problem of his suffering students. When he says these things as a Supreme Court justice, it becomes the problem of the American people. Justice Scalia should now recuse himself from Supreme Court cases involving any issues relating to gay rights.

If the polls don’t make Democrats anxious, think about this. The U.S. Supreme Court, the Roberts court, which liberals and progressives deplore, usually rules in a 5-4 margin in contentious cases, and not always. But Justice Ginsburg is 79 and frail; Justices Scalia and Kennedy are 76; and Breyer 74. There is a good chance (but no certainty) the next president will have to replace one or more of them. If the majority switches in these high-profile, high-stakes cases to 5-4 the other way, it can make a huge difference for decades, on the vital national issues that come before the court for a final word.

By labeling the ACA “penalty” a tax, Roberts has clarified the issue: ACA is a huge new burden on the middle class and it is rooted in the most coercive form of federal governmental power — the power to tax the people directly.

If the American people want federalized healthcare at the price of a huge new direct tax, then we conservatives cannot save them. Roberts has given us the very best ground on which to fight this battle (and he has located the battle in the appropriate place, the political realm — would that the jurists in Roe v. Wade had the same wisdom).

We know the Supreme Court is powerful. On Dec. 12, 2000, they decided that George W. Bush would be the next president of the United States. On June 28, 2012, they decided that Barack Obama would be reelected president of the United States.

There’s no escaping the political implications of the court’s long-awaited decision on healthcare. Even Mitt Romney seems to agree. Two days before the court’s ruling, he told supporters: “As you know, the Supreme Court is going to be dealing with whether or not ObamaCare is constitutional. If it is not — if ObamaCare is not deemed constitutional — then the first three and a half years of this president’s term would have been wasted on something that has not helped the American people.”

The odds are 11-1 the jury in the federal case in North Carolina trying John Edwards for campaign law violations will convict. There might be a holdout. That’s why I set odds at 11-1. Edwards has been portrayed as such a despicable human being — politician and husband — that the jury is likely to be unsympathetic to his legalistic defense.

But I also think that if there is a conviction, the odds are that there will be a reversal based on the trial judge's ruling yesterday. She kept out of the trial the testimony of a former chairman of the Federal Election Commission that in his opinion Edwards did NOT violate federal election laws by not declaring donations from admirers that went to shield his tawdry affair. The judge ruled that this testimony could not be heard by the jury because the witness might have based his testimony on facts the jury doesn’t have.

If there is any better man, lawyer, appellate advocate, federal judge, law school educator and dean than Louis H. Pollak, who died last week, I don’t know him, and might never find him. Acclaimed nationally as civil-rights advocate, law professor and judge, Lou made being a lawyer a class act.

I met Pollak as a graduate student at Yale Law School in 1956. When I submitted my doctorate thesis to three Yale law professors for approval, he was one (chosen because of his civil rights reputation; if he liked it, it was good), along with Fred Rodell (the best writer about legal subjects then, and one of my favorite professors); and Richard Donnelly, who taught criminal law, my favorite subject and with whom I'd written a law review article. Candidates requested three professors to be readers for the faculty, then never discussed the subject later, as that would have been unseemly. I learned they had approved my thesis and granted me my Juris Doctorate after I had left Yale Law School and was a prosecutor trying a case in federal court in Kentucky. It was published by Columbia University Press.

Adam Liptak’s article in Sunday’s New York Times, “Are Oral Arguments Worth Arguing About?” reminded me of an interesting and revealing experience I had years ago when I argued a case before the Supreme Court. Liptak’s point was that “it is the rare oral argument that wins or loses a case.” Results derive from the merits of the case, not the skill of the advocates, one expert told Liptak; indeed, the briefs play a greater role.

If the Supreme Court doesn't reject Affordable Healthcare we are lost as a nation. Not rejecting it would indicate that the highest judicial branch in our land has been overtaken by political ideology that actively seeks to shred the Constitution as it clamors to force bigger and bigger government upon Americans.

One of the burdens a columnist must bear is being insulted by those who disapprove, as one James Taranto disapproved of my recent column “Supreme Court on Trial.” Taranto's angry comments about my column ran in The Wall Street Journal’s online edition and were limited to calling my column staggeringly dumb, an attempt by me to make President Obama (whom Taranto presumably thinks is dumb as well) look smart by comparison, and so forth. Taranto does not answer any of the points I made, so I must infer, and note that his invective without reasoning illustrates why armies of women and Hispanics are supporting President Obama and Democrats.

Republicans, rightists and some who make the Journal opinion page their home have an attitude of contempt, derision and anger toward those with differing views. Stay tuned for an upcoming column that elaborates about this "Republican disease" that leads them to demonize, and at times hate, a succession of Democratic presidents and leaders whom in their contempt for democratic values they do not accept as legitimate.

Somewhere in the quest to believe, special agent Fox Mulder, aka David Duchovny, ad-libbed a line on "The X Files" about what they called The Elders. Interestingly enough there is since a group of globalists who have actually crowned themselves “The Elders,” but maybe they were busy running for president and missed "The X Files." Duchovny’s line creatively subverted Eisenhower’s great parting shot at the treacherous world he was leaving behind. Duchovny’s phrase was something like “the military-industrial-ENTERTAINMENT” complex.

It pretty much hit the nail on the head, and he might have added “military-industrial-entertainment-educational” complex. In a word, it is not just the newspapers and TV reporters who are embedded with the invading army. It is the entire professional culture of entertainment. The cooperation of secondary or sub-institutions with industry and military has long guided the geist and life force of America and the world. But ever since I saw Suzanne Collins’s great work, "The Hunger Games," on the big screen last weekend, I see it everywhere; the new set for "The Voice," whatever that is; Lou Dobbs's commentary on Fox; the purely partisan Supreme Court. (And could we see their Law Boards, please? Especially the one who doesn’t talk.) Our fate — the fate of my children — is in their hands.