Kagan and Obamacare

[Scheavo]

Quickly, for people who aren't aware of what I"m talking about, "Obamacare" is coming before the Supreme Court, and the right is trying to paint Kagan as impartial and involve with the "Obamacare" passing. Evidently, the fact that she wasn't against this bill before it passed is somehow supposed to show she's incapable of making a judgement.

What do people think here? Should she recuse herself?

Personally, I think it's a very strange argument to make. I know we want judges to be some impartial mediator, but that's neer gonna happen, and it's weird to me that the fact that she had an opinion on it before it passed it somehow supposed to be a sign that she can't make an impartial judgement. Every single judge on that panel had an opinion regarding "Obamacare;" and I just can't fathom how this is supposed to make someone impartial. Clarence's Thomas's wife (let's not get started on him) gets money to rally against "Obamacare."

[kirksnosehair]

Don't you mean that the right is trying to paint Kagan as NOT being impartial? 

[El Barto]

The precedent from the Right is that any Supreme Court justice can be impartial in any case,  apparently.  I don't know that Kagan had any direct involvement in this,  so aside form having some preformed opinions on the matter,  I don't see that it matters.  It might be interesting to find out if Justice Thomas has some financial interest in the case, though. 

I'm not sure it really matters, though.  Assuming that the US is defending the law as an interstate commerce matter,  it'll probably pass muster.  It'd really be a pretty overt act of "we just don't give a shit" from the right to shoot it down.  The Court has generally given Uncle Sammy the right to do whatever the hell he wants in that regard. 

[Scheavo]

Don't you mean that the right is trying to paint Kagan as NOT being impartial? 

Ah fuck, did I twist myself up there? Yes I did. 

The precedent from the Right is that any Supreme Court justice can be impartial in any case,  apparently.  I don't know that Kagan had any direct involvement in this,  so aside form having some preformed opinions on the matter,  I don't see that it matters.  It might be interesting to find out if Justice Thomas has some financial interest in the case, though. 

Well Thomas an interesting because the mans seems to be about as corrupt as congress.

But as for the "preformed opinions," that seems to be what the right has been attacking Kagan for. That somehow, her have preformed opinions is a sign of partiality and therefor she should recuse herself. It's fucking ludicrous.

I'm not sure it really matters, though.  Assuming that the US is defending the law as an interstate commerce matter,  it'll probably pass muster.  It'd really be a pretty overt act of "we just don't give a shit" from the right to shoot it down.  The Court has generally given Uncle Sammy the right to do whatever the hell he wants in that regard. 

Well, I think the individual mandate could run into some issues, as I personally don't see how that's constitutional. It'll be interesting to see how the conservative judges rule, and think about what their ruling would have been if a Republican had instituted the mandate (it was a Republican idea, after all).

[El Barto]

One of the things we've seen over the last 69 years is that if something can be couched in terms of interstate commerce,  it's usually constitutional, no matter how flimsy the argument.  I suspect that the individual mandate and interstate commerce might well be connected here.  As you pointed out,  Thomas is a foregone conclusion,  but Scalia might uphold it.  I haven't gotten a feel for Roberts and Alito yet. 

[kirksnosehair]

One of the things we've seen over the last 69 years is that if something can be couched in terms of interstate commerce,  it's usually constitutional, no matter how flimsy the argument.  I suspect that the individual mandate and interstate commerce might well be connected here.  As you pointed out,  Thomas is a foregone conclusion,  but Scalia might uphold it.  I haven't gotten a feel for Roberts and Alito yet.

I think Alito is a forgone conclusion as well.   

[El Barto]

I don't.  Ideologically he goes the same as Thomas,  but it might not be the case that Thomas goes with ideology.

[antigoon]

Scalia and Thomas dine with healthcare law challengers as court takes case

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.


The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court's conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal justices.

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Nevertheless, the sheer proximity of Scalia and Thomas to two of the law firms in the case, as well as to a company with a massive financial interest, was enough to alarm ethics-in-government activists.

“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges,” said Bob Edgar, the president of Common Cause. “The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

Scalia and Thomas have shown little regard for critics who say they too readily mix the business of the court with agenda-driven groups such as the Federalist Society. And Thomas’ wife, Ginni, is a high-profile conservative activist.



Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

[Scheavo]

I really find it preposterous that Supreme Court justices don't have to follow the ethics rules lower courts have to follow. The term is for "good behavior," meaning, ethical behavior.

[kirksnosehair]

I don't.  Ideologically he goes the same as Thomas,  but it might not be the case that Thomas goes with ideology.

Why wouldn't he?  Explain, please

[El Barto]

I don't.  Ideologically he goes the same as Thomas,  but it might not be the case that Thomas goes with ideology.

Why wouldn't he?  Explain, please

I think Thomas might well be corrupt.  I have no reason to think that of Alito. 

Though truth be told,  given Thomas's indifference to stare decisis,  he's one that could well vote ideologically against the interstate commerce argument.  I'd give Alito a greater chance of ceding the government authority in this case.

[kirksnosehair]

I don't.  Ideologically he goes the same as Thomas,  but it might not be the case that Thomas goes with ideology.

Why wouldn't he?  Explain, please

I think Thomas might well be corrupt.  I have no reason to think that of Alito. 

Though truth be told,  given Thomas's indifference to stare decisis,  he's one that could well vote ideologically against the interstate commerce argument.  I'd give Alito a greater chance of ceding the government authority in this case.

Alito showed very little regard for stare decisis in his opinion on Citizens United, though.  He voted to overturn Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003) and then he openly whined when Obama scolded the court for it in the state of the union address.