++The sense I got from the last cases argued before the Supreme Court was that Roberts was trying to regain a balance toward a more rightwing rulings. The Republicans had blasted him repeatedly for allowing the ACA to pass muster and Roberts even complained that the public wrongfully perceived the Court as actually decided things on politics.
++But some of the recent choices of cases such as the case against the California Teachers Union looked like hunting for knocking down labor unions' contributions to political campaigns. I felt it was problematic for the court to accept it as it was part of conservative advocates arguing for a broader definition of freedom of speech than commonsense would allow. It was sort of a reverse Citizens United.
++It was also clear that the Roberts Court had its aim at abortion rights since 6 of the Court are Catholics. Court Watchers believed they would have upheld the lower court's decision that Texas' "Pro-life" laws were too restrictive. The Court has been very cautious about stepping up to the line on reversing Roe V. Wade.
++I got a sense that Roberts wanted to shoot across Obama's Bow and reassert the Supreme Court's primacy on the political landscape. Two key moves indicated this was the case--the acceptance of the case on immigration policy and the Obama Power Plan. You would never know it but President Obama has issued less than half the executive actions than Ronald Reagan,another two-term President. But this has become a boiling issue as congressional Republicans have argued that the President is "lawless" and out of control.
++The irony is that Antonio Scalia's last book actually argued that a President has the right particularly in regulatory issues to exercise discretion--like whom to deport--and in the cases of the EPA to expand what and whom it controls. This does not suggest Scalia was consistent as evidenced by the Supreme Court's judgment that Obama's Power Project should wait because the tendency of the Court was to deny it but the Superior Court would have to make its decision first.
++Roberts seem to want the Court finally to make judgments on the limits of the executive branch. That project stands in ruins with Scalia's death.
++For those of us who support President Obama's Power Project to curb carbon emissions, Scalia's death is actually good news and a delay in appointing another justice even better. It is likely that the D.C. District Court with a majority of Obama appointed judges will rule in favor of the Plan. With a 4-4 Supreme Court, it is unlikely they will take the case,leaving Obama's showcase climate change policy in place.
++Any new justice will alter the Roberts' Court even a moderate Democrat and the dynamic on the court will changed dramatically. One wonders what Clarence Thomas' future will be since he relied heavily on Scalia for his opinions but also his clerks. Thomas has never hired his own clerk. Instead takes one from Scalia last term.
++Tierney Sneed at Talking Points Memo says Mitch McConnell's refusal--to date--not to accept a justice proposed by President Obama has precedence from the 18440s and 1850s. John Tyler had four out of his five picks rejected by the Senate . In 1844-45,Tyler had two Supreme Court nominees rejected and he submitted and resubmitted their names nine times. Andrew Johnson who was loathed by Congress submitted a nomination and the Senate simply voted to reduce the number of Supreme Court justices from 10 to 7, blocking him. I wonder whether FDR's "court stacking" plan of enlarging the Supreme Court came from this period.
++A regular reader of this blog wrote in last night that he thought a long interval without a justice spared us awful decisions the rest of Obama's term. I agree with that. He went on to suggest this helped Hillary Clinton because the issues of reproductive rights would finally galvanize millennial women about the why the Supreme Court matters and this election matters. The morning Democratic blogs reflect this thinking with those blogs that have been heavily pro-Sanders tilting more to Clinton because of the Supreme Court issue. One that Hillary could nominate someone who could get through the process.
++But President Obama will nominate someone. Nate Silver says he can't get a "liberal" through the process and will have to choose someone more moderate. A short list of nominees is already out.
++But the issue raises something else. I have felt the Democrats have utterly failed in convincing the American public about the scale of GOP obstructionism. But this is too dramatic an episode that it is clear. The GOP has made Congress dysfunctional. Their failure to ratify new judges makes the judiciary dysfunctional. This practice has become absurd as Senators block their own nominees for judges as happened again last week when the Georgia Senator blocked the Hispanic Republican judge he himself had nominated.
++By blocking a Supreme Court nominee,you can't say Washington is dysfunctional. The Republicans have made it so. And this theme doesn't bode well for the GOP heading into a general election. You can't argue anymore that if you elect me,the town will work since you are the reason it doesn't. Rewarding Bad Behavior--it happens all the time.
++But it is a win-win for Obama. Pressure will build on at least four sitting Republicans who are being seriously challenged by the Democrats. So these sitting Republicans are hard-pressed to argue they have been part of the solution.
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