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Refresh my memory: Is Justice Kennedy the wobbly one?

By Michael R. Shannon
web posted July 9, 2012

June 28 dawned bright and clear. It was shaping up to be a great day for conservatives. More than one observer -- waiting for the Obamacare decision outside the Supreme Court -- noticed aircraft coming in low on the horizon. Everyone assumed it was ICE drones searching for illegal aliens deserving of amnesty and a college scholarship.

But as the aircraft passed overhead the full weight of our mistake hit home. That wasn't the Army Air Corps insignia on the underside of the wing. That circular logo was the Obama meatball and it was Pearl Harbor all over again! Obamacare was legal and conservatives were caught completely unprepared as plans to roll back Big Government exploded in their face.

Make no mistake. Chief Justice John Robert's decision is a total, crushing and potentially unrecoverable defeat. Roberts joins with Chief Justice Roger Taney of Dred Scott fame as another Maryland chief justice responsible for a Supreme Court decision that will live in infamy.

"I always say…that if my fellow citizens want to go to Hell I will help them. It's my job." -- Supreme Court Justice Oliver Wendell Holmes

"It is not our job to protect the people from the consequences of their political choices." -- Chief Justice John Roberts

Justice Holmes, a crusty veteran wounded three times during the Civil War, was being cheerfully cynical. Justice Roberts, who appears to be suffering from PTSD induced by State of the Union criticism following the Citizens United decision and potential criticism prior to the Obamacare decision, is merely being pathetic.

Berkeley law professor John Yoo contends Robert's doesn't agree with his own ruling but intended to "pull the court out of political fight."

Unfortunately, Robert's job is to uphold the Constitution regardless of Democrat political pressure. His failure to do so removes one of the few remaining limits on the growth and expansion of federal power.

This type of judicial temporizing in the face of political pressure is the same thing that happened during the 1930s. A gutless Supreme Court stood idly by while FDR and the Democrats twisted the Constitution and began the long, legislative march toward intrusive, domineering Big Government.

If conservatives had not been lulled into a false sense of security, much like radar observers at Pearl Harbor, the Robert's decision earlier in the week to overturn most of Arizona's illegal alien law would have served to warn us of impending problems.

Deluded optimists claim the decision was a clever rope–a–dope and now Obama has to run for re–election with Obamacare and its hidden tax hung around his neck for all the voters to see.

I don't know what election these optimists have been watching, but the failure of Obamacare was already part of his campaign. Now, thanks to Roberts, he can run on the success of Obamacare, which serves to solidify a base that was becoming increasingly disillusioned. Protecting the fruit of this Supreme Court decision becomes a strong motivator to get out the Obama vote.

If this is a victory for conservatives, God save us from defeat.

Senate Minority Leader Mitch McConnell (R–KY) is already whining that it's going to be difficult to repeal the entire law because it's so complicated. But it doesn't require a 2,400–page bill to repeal a 2,400–page bill. You could do it with a bill no longer than a single page. What it does require is a certain strength of will and Sen. McConnell is telling us he and the majority of Republicans in the Senate lack that will.

They would rather file a lawsuit and let the Supreme Court do the heavy lifting, an option that after last Thursday no longer exists. This, in fact, will increasingly complicate life for Congressional Republicans as an imperial presidency continues to trample the Constitution. The legislative branch can no longer delegate Constitutional protection to the Judiciary.

The second rationalization for our famous victory is that Roberts ended the abuse and misuse of the Commerce clause. But that's wrong, too. As Rick Richman notes in the Commentary blog: "Part III-A of the Roberts opinion – concluding the Obamacare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court." Which means the Commerce portion does not set or overturn precedent.

What a difference a week or two makes. On June 28 a powerful conservative fleet was ready to weigh anchor. Eager to catch the high tide of the Obamacare decision and sail to victory in the fall. Today we're tapping on the barnacle–encrusted hulls of capsized battleships trying to find survivors.

Some are using hammers. Me? I'm using my head. ESR

Michael R. Shannon is a public relations and advertising consultant with corporate, government and political experience around the globe. He is a dynamic and entertaining keynote speaker. He can be reached at michael-shannon@comcast.net.

 

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