Topic category:  Constitution/Constitutional Crises

The Supreme Court's 5 to 4 Obamacare decision is a prime example of successful liberal judicial activism, because Chief Justice Roberts (Bush 43 appointee), who had pledged to be an impartial umpire, shockingly broke his pledge and joined the Supreme Court's four liberal judicial activists--Ruth Bader Ginsberg (Carter appointee), Stephen Breyer (Clinton appointee), Sonia Sotomayor (Obama appointee) and Elena Kagan (Obama appointee) to uphold Obamacare.

The constitutional fidelity Justices--Antonin Scalia (Reagan appointee), Clarence Thomas (Bush 41 appointee) and Aliton (Bush 43 appointee)--voted to strike down the individual mandate, because it purported to have been an exercise of the Commerce Clause and it was beyond the scope of the Commerce Clause, and would have stricken the entire act, because the individual mandate was an integral part of it. (This was not a case where the geographical scope or time period of a covenant not to compete is held to be unreasonable and the court upholds it to the extent that the limitations are reasonable.)

Justice Anthony Kennedy, the Court's "swing vote" who got the nickname Flipper for initially voting to overturn Roe v Wade and then switching sides before the decision was issued in Planned Parenthood v. Casey, not only got it right this time, but tried his best to help Chief Justice Roberts honor his judicial oath instead of make the same kind of terrible mistake.

But Chief Justice Roberts chose to became Flipper this time. After initially voting to reject the individual mandate as unconstitutional, because the predicate for it--the Commerce Clause--was inadequate, he joined the liberal judicial activists to sustain it under the taxing power, even though President Obama had pledged not to raise taxes on the middle class and he and his Congressional supporters had vehemently denied that the individual mandate is a tax.

Justices and judges swear to be impartial, but sometimes they put aside that duty for the sake of something they deem even more important.

The result is a travesty of justice that undermines the rule of law and the reputation of courts.

In 2009, former law clerk to Justice Thomas and counsel to the Judicial Confirmation Network (now Judicial Crisis Network) and current Republican-Conservative candidate for United States senator from New York Wendy Long explained the proper role of justices and judges in "What’s the Matter with Empathy? Obama's criterion for picking federal judges would turn equal justice on its head" (www.nationalreview.com/articles/227308/whats-matter-empathy/wendy-long).

Long wrote:

"During the presidential campaign, candidate Barack Obama said that 'the criteria by which I’m going to be selecting my judges' is whether they have 'the heart, the empathy,' for certain groups of people.

"Those worthy of empathy, according to candidate Obama, include the 'young teenage mom,' the 'poor,' the 'African-American,' the 'gay,' the 'disabled,' the 'old.' What’s wrong with being empathetic to all these groups in particular, or to any group or individual in general?

"What’s wrong with it is that federal judges swear an oath to 'administer justice without respect to persons' and to 'do equal right to the poor and to the rich,' among other things. So when, for the first time in American history, a candidate for president announced that he would seek judges whose decision-making is premised explicitly upon partiality – rather than upon the impartiality that the law requires of a judge — it was so unprecedented and so outlandish that many thought it was just campaign talk. Maybe it was something that had worked for some swing-state focus group.

"It wasn’t.

"President Obama’s first appellate nominee, Judge David Hamilton of the United States District Court for the Southern District of Indiana, has a long résumé of activism that suggests clearly where his 'empathy”'lies. His first job, fresh out of college, was as a fundraiser for the Philadelphia branch of ACORN, the 'community-organizing' group that has been accused of serial election fraud. He later served as a board member, and vice president for litigation, of the Indiana ACLU. And it is very much ACORN/ACLU/Obama–style 'empathy' on display in Hamilton’s judicial opinions.

"Let’s take just three of his most important constitutional decisions and see how this 'empathy' plays out — and for whom.

"1. Empathy for a crack-dealing mother, over school officials doing their jobs: United States v. Hollingsworth.

"Ms. Hollingsworth’s third-grade daughter had been late to school more than 20 times in a five-month period and had other disciplinary problems. After many unsuccessful attempts by school officials to talk to the mother, the school principal and a school social worker met with the child at school to discuss her problems. The girl said that a truant officer couldn’t visit her home until her mother and the mother’s boyfriend could 'get their stuff out' (the 'stuff' presumably being drugs). On the basis of this conversation, a warrant was issued, and marijuana and crack were found in the apartment.

"But Judge Hamilton suppressed the drug evidence — ruling that the prosecution could not use it in the mother’s trial — on the ground that the police had violated the mother’s 'substantive due process' right to 'family integrity.' Hamilton added, rather patronizingly, that the school’s practices 'tend . . . to undermine parents’ confidence in those most admirable aims and functions of the public schools.'

"Judge Hamilton opted to rely not on the text of the Constitution, nor even on a decision of the United States Supreme Court, but rather on a dissenting opinion of then–Ninth Circuit Judge Anthony Kennedy, which in turn relied on an Amnesty International report that stated: 'The assault on the parent and child bond is relentless and deliberate in many countries of the world.'

"The Seventh Circuit reversed this decision, specifically rejecting Judge Hamilton’s reasoning. The school officials’ speaking with the child about her lateness and truancy was a very minimal 'intrusion' into the Hollingsworths’ family relations, the appellate court said, and such questioning was unlikely to 'shock the conscience.'

"2. Empathy for abortionists, over citizens governing through their elected officials in a democracy: A Woman’s Choice et al. v. Newman.

"This case involved a challenge to an Indiana 'informed-consent' abortion law that required medical personnel to provide certain information about abortion 'in the presence' of the woman seeking one, followed by a waiting period before the abortion could be performed. The Indiana law was virtually identical to the Pennsylvania law upheld by the U.S. Supreme Court in Planned Parenthood v. Casey, as well as the abortion law of Wisconsin that had recently been upheld by the Seventh Circuit. Nonetheless, Judge Hamilton prevented the law from taking effect, and he continued blocking the will of the people of Indiana, as expressed through their elected officials, for seven years.

"Hamilton based his decision on studies from Mississippi and Utah showing that similar informed-consent requirements had reduced the number of abortions in those states by about 10 percent. What’s wrong with that? It must mean, Hamilton reasoned, that the Indiana statute would impose an 'undue burden' on women. In reversing Hamilton’s determined judicial activism, the Seventh Circuit took the unusual step of reproducing side by side in its opinion the Pennsylvania statute upheld in Planned Parenthood v. Casey and the Indiana law that Judge Hamilton had enjoined, in order to demonstrate that Pennsylvania’s law was, if anything, more restrictive.

"3. Empathy for those who want to purge religion from the public square, over people of faith: Hinrichs et al. v. Bosma.

"Judge Hamilton declared Indiana’s practice of beginning legislative sessions with a prayer to be an unconstitutional 'establishment of religion,' on the ground that the prayers, considered as a whole, were too 'sectarian.' That is, a 'substantial majority of the prayers were . . . offered in the name of Jesus Christ or with similar phrasing.' Judge Hamilton seemed not to notice that the United States is a country a 'substantial majority' of whose population identifies itself as Christian.

"However, Judge Hamilton found that prayer offered during the legislative session by an imam in the name of Allah was 'inclusive and non-sectarian.'

"Again, the Seventh Circuit reversed Judge Hamilton, ruling that he should not even have gotten to the merits of the Establishment Clause question in the case, because the plaintiffs lacked 'standing' to bring the suit. In his zeal to purge prayer from the legislature, Judge Hamilton first erroneously ruled that, because the Indiana legislature had spent approximately $448.38 on the prayers at issue, each and every Indiana taxpayer had a right to make, literally, a federal case of the practice.

"The court that reversed Judge Hamilton’s rulings, the Seventh Circuit, is the very court to which he has now been nominated. Judge Hamilton’s judicial approach — the Obama 'empathy' approach — is the essence of judicial activism: He bases his rulings on his own personal values, beliefs, and empathy instead of on what the law actually says.

"Senate Judiciary Committee chairman Patrick Leahy, presumably with the approval (if not at the direction) of the Obama administration, has done everything in his power to ram the Hamilton nomination through the committee in order to avoid scrutiny of Hamilton’s record. Leahy held a sham hearing in a tiny room just 15 days after Hamilton’s nomination and just one week after Hamilton completed his submission of materials (including some 2,000 pages of speeches and articles, in addition to about 1,200 judicial opinions over 15 years’ time).

"Sen. Arlen Specter, the ranking Republican on the committee, protested this unseemly rush. President George W. Bush’s appellate nominees waited an average of 166 days from nomination to hearing, and when Leahy became chairman, the time lengthened to 197 days. Yet Leahy accuses Specter and the Republicans of creating 'artificial' delays simply because they wanted to be able to review Hamilton’s record and ask appropriate questions. Leahy has denied a request from Specter and the other GOP Judiciary Committee members for a second hearing on Hamilton, painting the request as unprecedented — even though second hearings were held for Bush nominees Charles Pickering and John Roberts (now Chief Justice of the United States).

"The consequences for the federal judiciary of the last election are only just beginning, with the lawless 'empathy' criterion now in effect for judicial picks. It’s especially ironic that in order to rush these judges to their new posts on the federal bench — where, instead of following the law, they can dispense 'empathy' to ACLU-favored parties — the White House and Chairman Leahy are trampling on another Obama campaign promise: transparency and accountability."

Wendy Long is right: "the essence of judicial activism" is ruling based on "personal values, beliefs, and empathy instead of on what the law actually says."

In upholding the Obamacare individual mandate as a surreptitious but neverthelesslegitimate exercise of the taxing power, Chief Justice Roberts plainly ignored "what the law actually says."

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.