The Framers put SCOTUS there to INSURE the other branches did NOT do this to us and also to protect the Constitution. If SCOTUS punts then they serve no purpose. I sincerely think that Scalia and Thomas definitely “get it” as does Robert & Alito and probably the rest. They are very smart people. They have to know the gravity of this.
I posted this on another thread earlier, but think it is worth repeating. I think there is a tendency to view Supreme Court Justices as meek and mild individuals who tend to cower in the face of tough decisions. This really is a misconception, in my opinion. Now, do they sometimes decide to pass on cases that we think of are of dire importance? Sure. Ripeness, standing, judicial efficiency, etc. are sometimes used as scapegoats to avoid hearing a particular case, but that does not mean that the driving factor is fear or apprehension of making a tough call. Instead, it may be for a reason that is not entirely clear to those of us who aren't Con Law buffs.
However, it is well known that the US Supreme Court is very jealous of its power and is not inclined to curl up in the fetal position and relinquish ground because of threats/fear of negative public reaction.
While the Executive and Legislative branches, particularly on the left side of the aisle, are often all to eager to further dilute the US Constitution in order to advance their ideological schemes, the Judiciary derives its power from that very text. Through their power of judicial review, the USSC acts as the guardian of the Constitution and checks attempts by the Congress to overreach.
That being said, allowing Obama to skate through by turning a blind eye would be a fatal wound to the Court's power. I don't see them flushing their own power just to avoid what will surely be an unpleasant time of social tension (to put it mildly).
The Court has taken strategic opportunities to expand the power of the Judiciary and is widely viewed as the most powerful branch of government. They have battled overzealous presidents (most notably FDR) who sought to steal power away from the Court. They know the risks of a man who views the foundation of the Republic with such flippancy and disregard and I think that anyone who believes that the nine of them will hide out in their chambers fretting over all those hurt feelings while they torch the sole source of their power is mistaken.
The Court isn't naive. They are insulated from political brinkmanship. They don't fear hissie fits from the population at large, from congresscritters, or from prima donnas in the White House, including the One Who Must Not Be Named. They are extremely intelligent (although we may not always see it that way). And most of all, they are no strangers to power grabs... in fact, they are leaps and bounds better at seizing territory than the bumbling idiots in the other branches. In fact, they seem to grab every chance they get (isn't that actually the typical criticism of the judiciary from conservatives).
I could be wrong just as easily as the next guy, but I think there is a better chance that they choose to flex their muscles instead of kneel before the Executive Branch.
As an aside, it may be worth noting the utter disdain that the Court as a whole has for Biden. His behavior in leading the Bork and Thomas confirmation hearings was abhorrent. He was an absolute jerk and it is no secret that the Court at large viewed it as a slap to the Judicial Branch. Remember, the Court is only divided on issues so long as they don't impact their power (Scalia, Ginsberg and Thomas are all very close personal friends, believe it or not. Rumor has it that Ruth and Antonin and their spouses even attend concerts and eat diner on a very regular basis). If it looks like the Executive is trying to make a play on the Constitution, they will probably stick together.
Clarence Thomas Stands up to Chuck
I don't think that is a man that has a lot of fear in his soul. Add the fact that Bambi insulted Thomas' "judicial accumen" at Saddleback, and I think its safe to say that Clarence isn't a big fan (at least on a personal level).
bump that
Outstanding post Shady Ray. You said it far more eloquently than I. I read another article on a blog by an attny recently speaking to this situation. He said SCOTUS guards their power especially against the Exec Branch.
I have seen a lot of posts here where people say SCOTUS will do nothing. The actions by Obama’s groups esepcially against Hillary in the caucuses have been outrageous.
Leo last night said on Plains Radio to not pigeonhole liberal Justices and Conservatives. He pointed to a John Paul Stevens opinion that supported Leo’s case and he was a bit suprised but he said SCOTUS will usually follow the Constitution as they should. We still get occassional nonsense where they talk about intl law etc.