Anthony Kennedy

New York Times columnist Maureen Dowd is clearly beside herself over the possiblity the Supreme Court might strike down ObamaCare.

"This court," she wrote Wednesday, "is well on its way to becoming one of the most divisive in modern American history...It is run by hacks dressed up in black robes...[M]irrors the setup on Fox News":

"If the majority [of the U.S. Supreme Court] agrees with [Judge Roger] Vinson, President Obama would find not only his health care bill undone, but also face the most significant scaling back of the government's power to use legislation to solve its problems in decades," Time's Michael Lindenberger warned in a February 2 post at the magazine's website.

To reach such a conclusion, however, Lindenberger must have misunderstood Vinson's ruling on Monday in State of Florida v. U.S. Dept. of Health and Human Services, which sought not to "turn back the clock" on commerce clause interpretation but merely prevent its overextension into an unprecedented and dangerous arena: forcing Americans to buy private health insurance under the flimsy illogic that such economic inactivity actually amounts to commercial activity.

"I am required to interpret this law as the Supreme Court presently defines it. Only the Supreme Court can redefine or expand it further," Vinson noted on page 43 of his 78 page opinion. The Reagan appointee noted that no less legislative authorities than the Congressional Research Service and the Congressional Budget Office have found Congress requiring Americans to purchase private health insurance under penalty of law to be "novel" and "unprecedented"

Given the contentious debate over the proper role of religion in American public life, you'd think an important Supreme Court ruling on the issue would be a big story to the network news. But the Court's April 28 finding regarding a cross on a World War I memorial in the Mojave Desert elicited a yawn from CBS's "Evening News," a 78-word report from NBC's "Nightly News," and a one-sided segment from ABC's "World News with Diane Sawyer" that fretted if the Court "move[d] the bar on the separation of church and state."

The cross in question is part of a memorial built in 1934 in the federal-owned Mojave National Preserve to honor fallen WWI veterans. Lower courts ruled the cross unconstitutional and had it covered with a box, despite efforts taken in recent years by Congress to avoid constitutional questions over it by transferring that portion of the Preserve to private owners.

In a 5-4 decision, the Supreme Court ruled this was not a clear-cut violation of the separation of church and state.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," wrote Justice Anthony Kennedy in the majority opinion. Kennedy noted specifically about this cross that it "evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

A publicly-traded corporation, The Washington Post Company (NYSE: WPO) publishes a daily newspaper which includes daily editorials aimed at influencing public opinion inside the corridors of Congress, White House, and regulatory agencies, and ultimately over voter preferences at the polls.

What's more, the Post Company's newspaper has demonstrated its willingness to devote virtually limitless resources in its efforts to pound out a negative drumbeat in the final days before an election. Just ask former Sen. George Allen (R-Va.) or Gov. Bob McDonnell (R-Va.), two targets of the paper's openly hostile campaigns to derail their candidacies in favor of their endorsed candidates, Sen. Jim Webb (D-Va.) and State Sen. Creigh Deeds (D-Va.) respectively.

Yet when it comes to conservative groups or non-mainstream media for-profit corporation engaging in the same use of "unlimited independent expenditures" to influence voters, that's an entirely different story for the Post, which slammed yesterday's Supreme Court ruling as "Judicial Activism Inc.":

On Monday’s Newsroom program, CNN’s Jeffrey Toobin couldn’t find a consistent argument about the Supreme Court’s ruling in favor of New Haven firefighters who accused their city of reverse discrimination. Toobin first reported that Justice Kennedy, “the swing vote in this case, as in so many others,” wrote the decision, but minutes later, he labeled it as a ruling by “the five conservatives on the Court.”

When news of the Court’s decision broke early in the 10 am Eastern hour of the CNN program, anchor Heidi Collins brought on Toobin, the network’s senior legal analyst, to comment on the five to four ruling. He began with a summary: “The Supreme Court- five to four- in a decision by Justice Anthony Kennedy, who is the swing vote in this case, as in so many others, ruled that the New Haven firefighters were the victims of reverse discrimination.”

Retiring New York Times Supreme Court reporter Linda Greenhouse has answered some more questions from readers at nytimes.com. After an earlier revelation that she considers the former ACLU lawyer Justice Ruth Bader Ginsburg a centrist comes details of her deep affection for late ultra-liberal Justice William Brennan, whose decisions favored explicit racial quotas, no limits on abortion, mandatory school busing, opposition to the death penalty, and the strict separation of church and state:

Obviously, not every opinion Justice Brennan put his name to will stand the test of time. But many will. A personal note -- I took some time off from the court beat in the mid-1980's to have a baby and cover Congress for a couple of years. When I came back in 1988, Justice Brennan was 82 and the end of his tenure was in sight. He was one of the first people I ran into, in a court corridor. "I'm glad you're back," he said to me. I replied, "I'm glad you're still here."

As a deeply divided Supreme Court issued 5-4 rulings the past few weeks bouncing from liberal to conservative interpretations of the law, something was woefully missing from the coverage: journalists apologizing to the nation for regularly insinuating that the Court's December 2000 decision concerning Bush v. Gore was politically based.

After all, for seven and a half years, a regular media meme has been that a "conservative Supreme Court" gave George W. Bush the presidency by stopping the recounting of votes in Florida.

Yet, as the Washington Post reported Sunday, today's Court, though "sharply divided ideologically on some of the most fundamental constitutional questions" as well as being "roughly balanced," is probably more conservative than it was in 2000 as a result of recent appointments (emphasis added throughout):

CNN legal analyst Sunny Hostin, when asked about the Supreme Court’s upcoming ruling in the DC handgun ban case on Monday’s "American Morning," repeated the gun control lobby’s argument that "most federal courts and the Supreme Court has found is that really doesn't mean that you can possess a gun. It means that the military can possess a gun, that it's a collective right." She later made the usual liberal claim that the current Supreme Court is "conservative."

"American Morning" co-host John Roberts asked Hostin about the Supreme Court case 48 minutes into the 6 am hour of the CNN program, since the Court’s decision on the handgun ban is expected to come down by the end of June. For the bulk of segment, the legal analyst detailed the origin of the case and gave a summary of what took place during the oral arguments in March.