Red, White and Black

As Red state after Red state challenges the Patient Protection and Affordable Care Act, known derisively as Obamacare, it becomes clear that it will stand or fall according to Justice Anthony Kennedy. Several Federal District courts have affirmed and several have struck down the bill. I haven’t been keeping score but it doesn’t matter. The Supreme Court will decide its fate next spring which is to say that Kennedy’s vote will tilt the Court 5-4 one way or the other and the smart money is that he will side with Thomas, Scalia et al.

There was a time when observers might have held their breath over the outcome of such a ruling. In the long history of the Court there have been some significant defections from one camp to the other.

Most notable in recent years is Black and White. Hugo Black traded his Ku Klux Klan white sheets for a black robe in 1937. His white supremacy views gave way over his 34 years on the bench to the point that he became the most liberal, anti-segregationist Justice of the Warren Court.

Byron (Whizzer) White was appointed by President Kennedy in 1961. He traded his football jersey for a black robe. White had been an All-American collegiate running back at Colorado Univ. and later a star in professional football. Assumed to be a Liberal he went the other way voting against the Miranda decision and stood with Chief Justice Rehnquist as the lone dissenters in Roe v Wade.

Unless we witness a timely demise from the Court’s right flank either part or all of the Healthcare legislation is likely to go in the shredder. Clarence Thomas seems to have emerged, after twenty years, as the most ardent, if least vocal, conservative member of the high court. Whereas it was commonly thought that he carried Antonin Scalia's briefcase it now appears that it is the other way around; it is Clarence Thomas' decisions which are most widely hailed in far right circles... particularly with Dick Armey and the Heritage Foundation where his wife, Ginni, is employed.

We had our chance in 1981 to not only defeat but disgrace this spokesman of Libertarianism and corporate America. At that time the Democrats held sway in the Senate and Joe Biden chaired the Judiciary Committee. Our now vice president denied five people the opportunity to corroborate the testimony of Anita Hill. Shame on him and woe is me and you. Even then, why did the Democratic majority affirm him 52-48. It is roughly the equivalent of Noam Chomsky being endorsed by the Repugnants.

It is now five years since a peep has been heard from Clarence Thomas during the presentation of oral arguments before the court. In fact no one is sure if he isn’t catching up on his sleep as he leans back in his chair parallel to the floor. But either Justice Thomas or his law clerks write opinions dazzling to the assembled. He dips into history allegedly channeling the minds of our founding fathers as they turn over in their graves. I'd be interested to question Clarence Thomas if he also regards himself as three-fifths of a human being as our founders did.

So far has the spectrum drifted to the portside that even Antonin Scalia has taken exception to Thomas’ historical revisionism. Thomas ignores all precedents citing only the Constitution as if it were sacred text. He calls himself an Originalist. I call him an ideologue who has learned the knack of finding anything he wants to support his pre-existing dogma.

When questioned before Congress, John Roberts, under oath, assured his interrogators that he believed firmly in stare decicis which upholds court precedents. He and Alito then betrayed our trust by reversing the McCain/Feingold law and allowing unlimited corporate money to buy elections. The conservative majority are originalists when it pleases them and activist, quasi-legislators when it serves their clients’ interests. The validity of the mandate provision of the healthcare act lies in the power of the federal government to regulate interstate commerce which has been in place since 1937. Thomas will undobtedly argue that it nowhere appears in the original gospel of the 18th century. I wonder what Jesus thought.

The chasm in the political spectrum finds its model in the polarity of the Supreme Court. In fact it may well be the source of the conservative creed.