THE BLOG
11/09/2014 08:09 pm ET Updated Jan 09, 2015

There Is No Suspense: SCOTUS Has Already Decided to Kill Obamacare

Unless you found the end of Rocky IV to be a surprise, you do not need your popcorn. There is no drama, no suspense.

You also do not need to be a legal scholar, know anything about the U.S. Constitution, nor reference legislative history or precedents. That is not how to understand the Roberts Court.

It is a sign of the continued delusions of the lamestream media, legal analysts and commentators that they still indulge in debates over precedents, legislative history and the prior opinions of individual justices on the same matter to try to justify and predict how this Court will rule on King v. Burwell, the latest absurd case to reach this Court on appeal.

This Supreme Court is not really a court, but another branch dedicating itself to the Republican party's agenda. It is to the fair, balanced and logical application of justice what Fox News is to news. Right-wing governments destroy institutions that might get in their way. And, certainly the Supreme Court, precedent and legislative histories are impediments.

Why did the Court intervene to take the case before the entire DC Circuit Court of Appeals heard the case?

Why did they await the elections before deciding to take the case?

Will the Chief Justice disappoint his right wing colleagues again?

The answers are simple. They intervened so that there was still a difference between the circuits, providing a little more 'cover', claiming a need to resolve that difference. In fact, the DC Court of Appeals would almost certainly have returned to precedent and sanity and harmonized with Virginia.

Had they made this decision during the elections, Democrats might have pointed out how much everyone was going to lose if they elected the Republicans. Why should a Court whose primary purpose is to enhance the Republican party risk it?

And, no, the Chief Justice is not going rogue again with his buddies. After all, one display of integrity is about all he can do in a lifetime on the bench.

This Court is unlike all other Supreme Courts in American history. With the exception of Justice Kennedy, the four other "conservatives" were appointed because they had specific training at the Federalist Society, and a specific agenda in mind before they ever joined the Court.

Remember George W. Bush (aka, "the smartest man Harriet Miers ever met") defending his selection of Harriet Miers against a right-wing backlash by assuring them that he was certain she would never change her mind? Poor Harriet had not grown up in the Federalist Society, so she was not trusted. After all, an errant thought might enter her mind, and we cannot have that!

So, why look at precedent? This Court could care less. In Shelby v. Holder (the voting rights case), the Chief Justice claimed a precedent of "equal sovereignty" of the states, written nowhere in the Constitution [and, recall, these are supposed to be the strict constructionists and originalists who oppose, for example, the right to privacy because it is an "emanation"], and invented by him in a prior case. So, he quoted himself!

In the same case, Justice Thomas thought the entire law should be declared unconstitutional because it was an over-extension of federal power, ignoring the 15th Amendment that gives Congress the full power to legislate against discriminatory practices against voting on the basis of race. What part of "Congress shall have the power to enforce" does Justice Thomas not understand?

Legislative history? Really? In Shelby, Justice Scalia brushed aside thousands of pages of Congressional testimony and findings, and a nearly unanimous vote, with an unsubstantiated general statement that the declining votes against the legislation in the Senate over the years meant that that it was actually the perpetuation of racial entitlement. So now it is an "entitlement" to prevent a basic right from being taken away?!

What about facts? It mattered not one iota to them that the plaintiff itself, Shelby County, had itself been blocked from discriminatory practices in the past and thus, in a real courtroom, would have been deemed to have come to the bar with unclean hands.

What about practical consequences of their decisions? These are used or ignored depending on the impact on their pre-ordained decision. In Hobby Lobby v. Sebelius,
the very real likelihood that others could claim religious beliefs (since neither sincerity nor the truth of such beliefs can be questioned) to avoid obeying almost any regulation, or even argue that they could discriminate in hiring women who used certain contraceptives because they would be contributing by paying her salary was dismissed out of hand, whereas in National Federation of Independent Business v. Sebelius (the original Obamacare case), Justice Scalia worried aloud about the absurd possibility that, if the Affordable Care Act were upheld, the government could force people to buy broccoli as his excuse to deny millions health care.

Whoever is president has the right to nominate justices and there is nothing invidious abouta Republican president selecting nominees that reflect his views. But, once on the Court, there is an expectation of intellectual honesty, respect for precedent and deference to the majoritarian branches, often referred to as "judicial temperament". The Roberts Court exhibits none of these.

It is, of course, quite true that the Warren Court formed a progressive majority. But, it was not pre-designed, it did not assemble, or even form, as a lock-step majority on every matter. They were independent thinkers, and almost all of them changed their perspectives. Chief Justice Warren himself was the former Republican Governor of California.

The Supreme Court will hand the country another non-judicial opinion dressed in a word salad of legalisms to achieve the aims of the Republican party.