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Redstate...
Does Obama Know How
the Supreme Court Voted?
The Wink and The Nod
Posted by streiff
Tuesday, April 3rd
The storm that erupted yesterday when Barack Obama woke up and
discovered the Supreme Court of the United States was not only not
elected but it could overturn “duly passed” laws, even those passed in
the dead of the night by the barest of purchased majorities, has been
more than adequately covered on these pages and others by actual
lawyers and those who think they are.
I’m pretty sure Obama knows what Marbury v. Madison is, even though
yesterday he gave a darned good impression of being a total goober in
regards to our Constitution. The simplest explanation is that he knows
how the vote went on Friday and is working to change that vote, failing
that he is setting the predicate for running against the Supreme Court
in November.
According to Supreme Court protocol...
When oral arguments are concluded, the Justices have to decide the
case. They do so at what is known as the Justices’ Conference. Two
Conferences are held per week when Court is in session, on Wednesday
and Friday afternoons. The Justices vote on cases heard on Mondays and
Tuesdays of a given week at their Wednesday afternoon Conference. The
Justices vote on cases heard on Wednesday at their Friday afternoon
Conference. When Court is not in session, usually only a Friday
Conference is held.
According to Supreme Court protocol, only the Justices are allowed in
the Conference room at this time—no police, law clerks, secretaries,
etc. The Chief Justice calls the session to order and, as a sign of the
collegial nature of the institution, all the Justices shake hands. The
first order of business, typically, is to discuss the week’s petitions
for certiorari, i.e., deciding which cases to accept or reject.
After the petitions for certiorari are dealt with, the Justices begin
to discuss the cases that were heard since their last Conference.
According to Supreme Court protocol, all Justices have an opportunity
to state their views on the case and raise any questions or concerns
they may have. Each Justice speaks without interruptions from the
others. The Chief Justice makes the first statement, then each Justice
speaks in descending order of seniority, ending with the most junior
justice—the one who has served on the court for the fewest years.
When each Justice is finished speaking, the Chief Justice casts the
first vote, and then each Justice in descending order of seniority does
likewise until the most junior justice casts the last vote. After the
votes have been tallied, the Chief Justice, or the most senior Justice
in the majority if the Chief Justice is in the dissent, assigns a
Justice in the majority to write the opinion of the Court. The most
senior justice in the dissent can assign a dissenting Justice to write
the dissenting opinion.
If a Justice agrees with the outcome of the case, but not the
majority’s rationale for it, that Justice may write a concurring
opinion. Any Justice may write a separate dissenting opinion. When
there is a tie vote, the decision of the lower Court stands. This can
happen if, for some reason, any of the nine Justices is not
participating in a case (e.g., a seat is vacant or a Justice has had to
recuse).
Based on this we know the three Obamacare-related cases were voted on
at the Friday afternoon conference. What happens Monday? A
full-throated attack by the White House and its devoted corps of
sycophants on the very idea that the Supreme Court should hear the
case. Is this a coincidence? I doubt it.
If is is axiomatic that the Supreme Court reads election returns, it is
also true that they read the newspapers and public opinion polls. It
can’t have escaped the notice of even a mediocrity like Sotomayor that
1) this is an election year and 2) Obama’s political fate seems to be
closely tied to the outcome of the case.
To be clear, it is difficult, if not impossible, to believe that a case
of this significance to the reelection campaign of an incumbent
president is going to remain secret until June. The stakes are way too
high.
The first question is how, if there are no clerks, secretaries, etc.,
in the conference how would have the president found out about the
decision… and I think the actual vote? Paradoxically, if there is a
leak it is much easier to identify the source than if there were
assorted support staff in the room. While support staff would have been
the likely suspects they actually have much to lose and little to gain
from leaking. If found out, they will lose their job. If not found out
their reward will be minor. No fame. No fortune. Just the
day-in-day-out knowledge that the person they leaked the information to
controls their future. The people who can leak without fear are the
justices themselves. If one did leak they are in no danger of losing
their job and while some of their colleagues might be miffed they
would, if exposed, be the toast of the town in Manhattan and Los
Angeles.
(GASP… did you just insinuate a Supreme Court justice might breach the
holiest of holies? Remember, my friends, we’re dealing with Democrats
here.)
If a leak occurred after Friday’s conference, it is very easy to figure
out the single justice with the requisite means, motive, and
opportunity.
What I think was afoot yesterday was a blast aimed one man. The
Cowardly Lion of the Supreme Court.
If the key conference vote on striking down Obamacare was 5-4, and that
is what many observers are predicting based on the oral arguments, the
man with the fifth vote is Anthony Kennedy. In the conference for
Planned Parenthood v. Casey, Kennedy had cast the fifth vote that would
have gutted Roe v. Wade. At some point during the drafting of the
opinion, Kennedy got a case of the vapors and changed his vote thereby
upholding Roe and ensuring another 20 million children were aborted.
The Administration has probably calculated that it can bring enough
heat on Kennedy via its public statements to convince him to change his
vote.
And if he doesn’t Obama has declared war on the Supreme Court as a
tactic to energize his base.
He sort of began that during the 2010 State of the Union when he simply
lied about the Citizens United case. While some have called into
question Obama’s wisdom in taking a whack at the Supreme Court to their
face on national television as well as this week’s onslaught on a yet
officially undecided case, actually it is inspired.
If you’ve ever played/coached/officiated a sport you know that more
often than not the high maintenance player or coach can win a battle of
wills with the referee. The referee wants to appear fair to the players
and spectators. The coach or player wants to win. If you challenge
every call against you, you can eventually wear down a referee and get
calls in your favor simply because they don’t want the grief and they
want to appear unbiased. Taken in toto, Obama’s actions resemble those
we’d expect from a no-talent version of John McEnroe.
The evidence, to me, seems strong that on Friday the Supreme Court
voted 5-4 to toss Obamacare and the White House knows this to be the
case.
Read this and other articles at Redstate
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