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Oh, Miss Marple, you thrill me with your winning logic.

Look, Rush often misses the nuances, especially in subjects that take great training such as constitutional law. The lawyers he consults are often knee-jerk.

Believe me, I are one (a constitutional lawyer) and not only is there a whole bunch of law going on in a case such as this, there are tactics and strategies that will not be apparent to the first-time reader, even a trained lawyer. (Yes, there are untrained lawyers.)

I haven't read the brief yet so won't comment on its merits. But I agree that this sounds like another instance in which conservatives may be overlooking the power of incrementalism in the law.

And one more thing about the Supreme Court: If you want to win, you do not necessarily go in there with both barrels blazing. It ain't that kind of place. If you put a bunch of red meat in your brief, the radicals will jump all over that so fast, THEY WON'T EVEN LISTEN OR GIVE WEIGHT TO THE TRUE ARGUMENTS.

The Supreme Court is steeped in the doctrine of stare decisis and the exalted role of the Court as over all the land.

The justices get spooked, particularly on a controversial issue and particularly regarding arguments presented by the FEDERAL GOVERNMENT, if arguments are not presented in a nuanced way.

But nuance often escapes the untrained reader. Hence the charge that a legal brief is "bad" because it does not corrollate with one's political brief.