Brittle Activists

"Isn't it more honorable to criticize the justices to their faces? Are these jurists so sensitive that they can't take it?"

I submit that it's just a question of good manners. You don't invite a guest to show up, and then dump on him -- especially on national television. You might well invite him over for a debate -- but the State of the Union speech was plainly not a forum in which the guest could talk back. This was a cheap shot by the President.

I agree- nothing wrong with Justice Alito shaking his head. He didn't disrupt the proceedings, and this is a free country.
As for the propriety of the President's statement in SOTU about the decision, Mr Dionne didn't mention that it wasn't a gratuitous slap at the Court . The President was pleading for legislation to partially correct the problems that the decision created . Perfectly appropriate in SOTU or anywhere else , with or without SCOTUS being present.

The SOTU isn't a cocktail party. This is an address in which the President assesses the state of the union and telegraph's his agenda. Why can't he say "the state of the union is worse than it otherwise would have been because some of the people in this room made a decision I think is bad law and will generate bad outcomes. And here's what legislators should do about it." That hardly seems gratuitous--it is directly within the agenda for this joint session of congress.

You should have a problem with Alito. He is a judicial thug (cf. his New Haven
concurrence) who misrepresented himself in his confirmation probably even more than
Roberts did. That club at Princeton was exactly what his critics said it was, and it was
exactly what he is too.

The State of the Union Address is not a dinner party to which the justices are invited, and criticizing them in that context is not "bad manners." Indeed, they are invited only as a courtesy because they are high public officials and for that reason they do not regularly attend. Nothing about the president's comments was a "cheap shot" or remotely inappropriate. The impact of that radical decision bears directly on the state of the nation and on legislation that the president will be seeking. He was free, as a matter of law and manners, to comment upon the decision, what he believes to be its impact, and what he thinks should be done about it. He would have been derelict to fail to do so because that is his job.

On the other hand, Alito's conduct, although not illegal in this free country, was inappropriate. The president has the rostrum. It is his speech to give. When he does so, he is speaking as the sole official elected by the entire people of the United States. It is inappropriate for the justices to express by their gestures what are essentially political opinions. As well, it is a sign of disrespect for the office of president, for the constitutional order, and for the powerful yet limited role of the court within that order. If the tables were turned and the Solicitor General were sitting in the Supreme Court, nodding his head and muttering to indicate his disagreement while the Chief Justice read an opinion from the bench, there would be widespread outrage.

Similarly, would there not be outrage if the justices participated in the partisan applause of the legislators? Of course there would, although that too would not be illegal. We expect the justices to speak from the bench and in legal and informational fora. They are not expected to engage in overtly partisan political behavior.

Alito was at least expressing his true views -- that he does not respect the constitutional order, the primacy of elected officials, or the circumscribed role of the court. His public incontinence is entirely in character.

I agree with mlottman. Alito is a thug. He misrepresented himself at the hearings and he is probably every bit the racist that his membership in that Princeton club suggests. He should never have been confirmed and we have not yet seen the worst from him.

Justice Alito is a "thug"? imho that's a purely ridiculous, though seconded, view. he's a career public servant with views on the law. that makes him a thug? I recall days when insults like that were saved for people who had earned them.

not a cocktail party? true. and so a judge can shake his head. the notion that all must stand at attention while the president speaks is silly. no one expects that of the legislators; they are free to express views far more plainly than the judge did.

ultimately, this is mountains out of molehills. the President dissed, and far more politely the judge dissed back. big deal.

What hysteria from the liberal left here.

There is no problem with Obama heartily criticizing the decision.

There is plenty of problem him doing it as he did when the justices were sitting there as a captive audience consrained by convention to be impassive; and there is plenty wrong with Obama, I presume knowingly, getting the decision wrong for the sake of rousing the troops, his base and so on and being focus-group-tested feisty.

Good for Alito reacting in visceral disgust at Obama's purposeful, I presume, distortion.

Also Dionne is off base in thinking that it's good for Obama to take it to the court as he did and let it know that it has him and his administration to contend with. Last I heard the court is a coequal branch of government that can't be cowed by Obama's bad faith attempt at making political hay at its expense (or by anything else it he might do). That can only serve to set up an equal and opposite reaction from the court at a time of its choosing.

Further, trust knee jerk left liberals to protest so loudly about a SCOTUS conservative hegemony when you'd hear nary a whisper from them during times of liberal hegemony. (Which, generally, is Richard Posner’s theory of the court as an institution of outcomes from both the right and the left, whoever has the juice at any particular time.)

Finally only a knee jerk will call Alito a judicial thug and point to his opinion in the Firefighters' case as proof, which, while one may not agree with it, is entirely defensible as a piece of legal reasoning.

If we needed any more demonstration about how little the hysterical right (is there any other kind of right?) understands about the constitutional order, here we have markdwyer and basman to instruct us.

First, if you want some specifics about Alito's judicial thuggery and radical hypocrisy, go here and read the posts toward the end. I don't have the time or energy to repeat them:

http://www.tnr.com/blog/obamas-war-the-court-just-escalated

Calling Alito's views "views about law" is almost oxymoronic. His views are almost the antithesis of law, at least any law that is recognizably American and constitutiional in origin. Divine law perhaps.

Mr. Dwyer informs us that no one expects legislators not to be demonstrative during the president's speech. That is quite right, because legislators are understood to be political partisans. While we all are pretty sure that judges too have partisan political views, the norms of democratic behavior are that they keep them to themselves. We could have a long discussion about why something that amounts to a pretense of political indifference should be required of judges, but that would require a lot of sociology unnecessary to this discussion. For present purposes, the point is that we consistently have such expectations because they reinforce what we wish to be a shared, public view of the role of judges. You, Mr. Dwyer, may think that such norms of behavior are silly. That is not the same as failing to recognize that they exist and the Alito's behavior violated them.

Then we get these amusing self-contradictions from basman. He subscribes to Posner's theory that the court is entirely political and outcome driven. But it is the über-hypocrites of the right who have spent two generations telling everyone how despicable this is and how they, uniquely amongst lawyers and jurists, are faithful adherents to the law "as written," "as originally intended," "as the truth." Why then is it liberal, knee-jerk hysteria to note that the evidence is now overwhelming that the so-called jurists of the right are liars and hypocrites who do not observe their own claimed rules of decision as and when necessary to achieve the outcome they want? Honest people have a virtual obligation to point this out, and indeed basman himself does when he approves Posner's theory. By all means, basman, demonstrate for us the bad faith on the hysterical legal left, with "liberal jurists" similarly hypocritically violating their own claimed rules of decision to achieve politically motivated outcomes.

Oddly, having just in the prior sentence acknowledged that the conservatives are outcome driven, merely because they "have the juice" as he puts it so succinctly, basman immediately returns to the ranks of the legally prim, informing us that Alito's opinion in the Firefighters' case "is entirely defensible as a piece of legal reasoning." Well than, basman, which is it? Do you believe that there is such a thing as legal reasoning and that judges have to engage in "defensible legal reasoning" or are they supposed to decide whatever they want whenever they "have the juice?" If you subscribe to Posner's views, why is it suddenly praiseworthy that a particular outcome that the reactionaries wanted can be justified on the basis of conventional legal reasoning (assuming that is you are even correct)? It is but happenstance.

With your favorite political epithets (so very cliched, don't you think?), you betray the very hypocrisy and schizophrenia that you do not want us to observe on the legal right. If, as you yourself observe, basman, the right-wing court is completely politicized and outcome driven, why indeed should we refrain from criticizing the court in just the sort of terms the political world - especially the insistently shrieking right that thinks nothing of accusing the president of socialism, fascism, and plotting the death of grandmothers -- deploy in political contest? None that I can see. Now that the reactionary justices have pretty well abandoned their fiction that they have any sort of intellectually defensible jurisprudence, there is every reason to protest loudly at their political outrages, just as we do at the political outrages of Republican legislators and presidents. That is exactly what makes it appropriate and necessary to refer to Alito as a thug. It calls him out as the completely political creature that he is, and that honest recognition of what he is is a virtue in and of itself.

Get it, basman? Calling Alito a thug is a means of calling attention to the fact that Alito does not deserve the respect we accord to jurists because they engage in a particular intellectual practice that we regard as worthy of respect and praise. He is not one of them. Hence he is a thug.

I realize, basman, that your delicate sensibilities are disappointed to find that liberals do not criticize liberal justices in the terms that they reserve for radical reactionary justices such as Scalito, Roberts, and Thomas. But please, call our attention to all the many examples of the knee-jerk right criticizing reactionary justices in the hysterical terms they reserve for criticism of liberals -- just to establish your intellectual consistency and devotion to law.

Basman and dwyer, you two really give me a good laugh, unconsciously and openly displaying all of the hypocrisy of the right that you so obviously want us all to stop noticing. "Ignore that man behind the curtain," indeed.

Are you offended, basman, that the justices get to criticize the behavior of the executive branch as "illegal and/or unconstitutional" while the Solicitor General, who is not merely a guest invited out of courtesy, is constrained by convention to sit impassively and listen with at least feigned respect? Methinks not.

Alito's behavior was inappropriate and offensive, not for whatever substantive point he imagined he was making, but for the time and manner in which he made it. He demonstrated for the world that he does not know his place in the constitutional order. Good. It is something we all need to understand about him and the rest of the reactionaries. Impeach Scalito!

Forget this little basmanian gem:

"Also Dionne is off base in thinking that it's good for Obama to take it to the court as he did and let it know that it has him and his administration to contend with. Last I heard the court is a coequal branch of government that can't be cowed by Obama's bad faith attempt at making political hay at its expense (or by anything else it he might do). That can only serve to set up an equal and opposite reaction from the court at a time of its choosing."

The ferocious, two-generational criticism of the Supreme Court from the right, from everyone from right-wing presidents on down, has had as its obvious purpose intimidating the court and conditioning the public to accept as "normal" the appointment of radical reactionaries because they rhetorically, and dishonestly, profess their fidelity to the Constitution. These tactics have been effective in moving the court to the far right, off the edge of anything that could be called mainstream or traditional American jurisprudence. Now that the left is finally discovering that these tactics worked and must be countered in kind, basman suddenly takes offense. Poor tender soul. To paraphrase this dear heart:

"Further, trust knee jerk right reactionaries to protest so loudly about liberal criticism of SCOTUS conservative hegemony when you'd hear nary a whisper from them about conservative criticism of liberal hegemony."

...Impeach Scalito!...

You be unhinged.

What a man: a hero to us all: keep up the devastating counterattack as the leader of the forces of all that's right in the pitched battle in the great war that's going on inside your head!

And what legislation is that will correct a constitional decision?

That's erroneous nonsense.

Geez, basman. You are so thoroughly stewed in reactionary hypocrisy that you cannot even get the joke. While you are lambasting the very notion of liberal criticism of a reactionary court, you seem to have forgotten "Impeach Earl Warren," the start of the relentless campaign by reactionaries of the Warren court and its rulings.

You really can't take it, can you? Just like the pathetic right. You dish out every vile thing you can think of and expect liberals to sit quietly and take your crap. When they don't, you fall all to pieces with classic right-wing self-pity, "Oh, they are beating us up. They are criticizing us. They don't criticize themselves. This is so mean!"

* * *

You seem to forget, basman, that even Supreme Court decisions are ultimately merely advisory. The only thing binding is the "law of the case," which is the decision as applied to the litigants before the court. The rest is just precedent with the court trying to control the impact of the precedent by writing an explanatory opinion. The Congress can choose to address the opinion narrowly as, for example, but treating the unconstitutional statute as "overbroad" and then crafting one that purports to make distinctions between the constitutional and the unconstitutional. This is exactly what the right did with its Federal prohibition of intact dilation and extraction (know to you wingers as "partial birth abortion"). Despite Roe v. Wade, this was upheld by the reactionaries. With appropriate findings, Congress can make it politically difficult for the court to overrule a more narrowly drawn statute and gives the court the avenue of retreating of "accepting" the distinctions drawn by the Congress. This is a system of human beings in a political system, not a "law machine." Surely you are sophisticated enough to understand that, no? The court might overrule a different statute, or it might blink if it thinks that it is running against the tide of public opinion. To that end, a relentless campaign of ferocious criticism of the reactionary court, its lies, its hypocrisy, and its complete disregard for centuries of American legal tradition, would be a very good start. I try to do my part.

p.s.

roidubouloi:

I'm in the pool for 6 obsessive ripostes from you.

My mailman probably has it right at 3.

Sorry, basman, but writing in this little window it is difficult to see all the pieces of a train of thought at once. Things get sent in pieces.

On the other hand, maybe I should confine myself to pithy and oh so persuasive remarks like yours such as, "You be unhinged." "That's erroneous nonsense." You have a real gift for expressing deep thoughts with such an absolute economy of words.

...You have a real gift for expressing deep thoughts with such an absolute economy of words....

...Impeach Scalito!...

Oh, basman. I did try to explain to you that that was an historical allusion to make a point about your pain and suffering on the occasion of left-wing criticism of the reactionary justices. I guess even the explanation wasn't enough. Let me try again.

You said this:

"Further, trust knee jerk left liberals to protest so loudly about a SCOTUS conservative hegemony when you'd hear nary a whisper from them during times of liberal hegemony."

I was trying to draw your attention to the fact that there is an exceedingly long history of loud, indeed extreme, protest by conservatives of what they consider liberal rulings from the Supreme Court. By saying, "Impeach Scalito" I was mocking your complaint by reminding you of this history, summoning what I assumed, incorrectly, would be your recollection of "Impeach Earl Warren." Why, there were even bumper stickers with that slogan on them. Do you get it now, "Impeach Scalito," "Impeach Earl Warren?" Long history of conservative attacks on the court when they perceive "liberal hegemony? No? Oh well, never mind.

I am sure there were significant historical allusions contained in your epigrammatic, "That's erroneous nonsense." But, I confess, I don't get it. Please do explain.

Okay enough with the snide back biting that I generally prefer to avoid but fall into sometime against my better judgment--unlike the Pope I'm not infallible.

Three things are erroneous:

1. Obama's characerization of the SCOTUS decision was wrong.

2. And to the extent that people are arguing that a constitutional ruling can be gotten around by legislation, they are wrong. So if SCOTUS rules that 2 U.S.C. Section 441a, is unconstitional as a violation of your First Amendment. Legislation can't fix it.

3. Finally and *least importantly*, you misunderstand my hegemony point. I never suggested that conservatives didn't protest liberal sway on the court when it existed. I said the exact opposite: liberals didn't. It's an institution of outcomes and principled reception of its decisions go out the door except maybe in law journals and such. If "impeach Scalito" was meant to convey something I missed--I don't study your posts as though they're legal briefs--I'll substitute the depth of "Alito is a thug" for it, uttered before my time on this thread.

But if you want to confine discussion to points 1 and 2, I'll second that emotion.

p.s.

I have to check out for a few hours--do some work and such like.

But I'll catch you on the downstroke.

1. I don't know what basis you have for characterizing Obama's characterization as "wrong." There are many who think that the decision will open a flood of corporately sponsored third-party adds designed directly to influence the outcome of elections. You may not agree, but at this juncture it would be impossible to say that this is wrong.

2. As to this, you are quite wrong. The particular statute is unconstitutional as applied to the litigants before it. Just as courts distinguish particular cases before them from precedents that may appear rhetorically applicable but can be distinguished on the facts, Congress can seek to fashion a statute based on different factual predicates than the ones presented in the earlier case. This is just what conservatives did with their statute prohibiting intact dilation and extraction (what possible Federal jurisdictional basis was there for that?) and succeeded in the face of Roe v. Wade. All the more so since the court is not immune to criticism and not generally looking to find itself in a head to head conflict with the Congress and the president. In the 30s, the court retreated. In the face of a resolute Congress, it would do so again.

While as a pure abstraction one can correctly state that a statute cannot overcome a constitutional ruling, there never exists any definitive account either of the Constitution itself or of opinions interpreting the Constitution. Thus, it is always open to the legislature to present the court with a different fact pattern, and you are not in a position to say with certain what the court would do.

Let us suppose, for example, that the Congress found, as is generally understood to be the case, that corporations are a species of trust for their shareholders and that allowing for-profit corporations to spend the money of their shareholders on election campaigns would be a violation of the rights of any shareholders who objected to that speech while also undermining the free flow of capital. In response, Congress decides that a corporation may only spend on political speech the aliquot share of net assets that constitutes the equity of shareholders who explicitly give their consent, and that any money so spent must be charged to consenting shareholders as a constructive dividend for tax purposes. Then the corporation must furnish those shareholders with a 1099 and redeem a fractional part of their shares so that only those shares would be charged the cost of the political speech. Would that violate the First Amendment "rights" of corporations (an oxymoron I know, but the morons are the reactionary justices)? It would certainly create great practicable difficulties for a corporation wanting to engage in political speech, but would have as the perfect justification that the cost be charged only to those who share in the views expressed, not to those who don't. Unless that is the court is prepared to find that a corporation is an actual person and may not be burdened by such responsibilities to its shareholders. The court would hate it because the reactionaries are drunk with their own power and cannot imagine being frustrated in their power grab by the elected representatives of the citizens of the United States. But I don't think they have a shred of a basis for holding such a statute unconstitutional. They might try to up the ante by making up one of their typical phony opinions a la Bush v Gore. But I think they would retire from the battle.

3. I you are convinced that the Supreme Court is purely ideologically and outcome driven and that constitutional construction is a fiction, then there is every reason for the court to be attacked mercilessly for its politicized jurisprudence. The conservatives have demonstrated that this is a very successful tactic and there is no reason in a political fight for the left unilaterally to disarm be allowing this tactic to be the exclusive preserve of the right. Moreover, since, by your lights, the justices are purely political creatures hiding in robes, there is no reason to spare them whatever political rhetoric is effective. In addition, these conservative justices are uniquely dishonest. I defy you to find "liberal" courts declaring rules of decision that they don't actually follow purely for the purpose of discrediting opposing legal views. This is a typical scummy, lying Republican tactic. No wonder the reactionaries engage in it. The truth is that their declared rules of decision are impossible to apply and serve only to relieve them of the responsibility for anything that resembles authentic legal reasoning. As they are frauds, not only must they be excoriated, but they personally deserve it. Alito in particular is a racist prick who lied to the Senate in order to be confirmed. His opinions are rife with transparent hypocrisy. He is as politicized as any justice has ever been and has fully earned the appellation of thug. It would suffice if that is effective political rhetoric, but Alito fully deserves it.

Back to you, basman. See if you can do a better job. I would like to see that for the pure entertainment value alone. I'm waiting to be impressed by your acumen.

I could care less about entertaining you, impressing you with my acumen or whether in your estimation I am doing a poor, good or better job, but as to your points:

1.

From what I have read and gathered:

The Citizens United case dealt with a blanket ban on corporate expenditures. SCOTUS struck down the ban, part of 2 USC 441b. A separate section, 2 USC 441e, prohibits “foreign nationals” from making expenditures or contributions. “Foreign nationals” includes corporations not incorporated or headquartered in the U.S. That applies to any U.S. election and to any activity “in connection with” an election. SCOTUS didn’t touch that and Kennedy is explicit that he makes no judgment about foreign corporations.

That allows a U.S. company, incorporated and headquartered in the U. S. to make expenditures.

But FEC regulations at 11 CFR 110.20 further specify the prohibition:

“A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.”

Also, the FEC requires that any funds so spent come from U.S.-generated income. Therefore a foreign-owned but U.S.-incorporated-and-headquartered subsidiary, using U.S. funds, controlled solely by U.S. nationals, make expenditures. But, such a corporation can eligible operate a PAC — which can make unlimited expenditures and also make contributions directly to candidates (under the same restrictions of U.S. funds managed by U.S. nationals) — and to spend unlimited sums from any source. Its executives and managers who are U.S. citizens or lawful permanent residents (i.e., the same people who would have to decide on any corporate spending) are already eligible to spend unlimited sums on U.S. elections.

So claiming that the Citizens United decision allows “foreign corporations to spend without limits in our elections” is as misleading as saying that “Obama and the Democratic Congress have allowed foreign corporations to spend without limits in our elections.” The corporate ban is not about foreign contributions, and the government never tried to defend it as such. To suggest that SCOTUS allows foreign expenditures in elections is wholly misleading and wrong.

2.

Your arguments here are paper thin. First, SCOTUS went out of its way to expand its ruling beyond what issues were put before it and beyond how the parties had framed the issues. Secondly, and in part exactly because of how it went beyond the issues before it, the ruling is not a function of the facts of the case—your nonsense about factual predicates—it is a straight forward ruling: U.S. corporate funding of independent political broadcasts in candidate elections cannot be limited as a matter of free speech. There is no legislative fix to this; nor will there be. Thus the calls for legislative solutions are misconceived. If not devise one that is better than what you proposed, which is neither entertaining nor illustrative of acumen.

Your example is unreal. 1. Substantively, Congress would never find, even for these purposes, that a corporation is a “species of trust for shareholders” because that would defy deeply ingrained legal understandings of what a corporation is—an entity apart from its shareholders; 2. Practically, for public corporations—which are the practically real subjects of the court’s ruling—your proposal would be so unwieldy and complicated that it would never see sunshine; 3.Politically, just as the court’s ruling applies to unions, so the isolation of the willing shareholders would need, politically, a parallel in the isolation of willing union members and no Democratic party dependent on Unions and seeing working people as a vital Democratic constituency is going to do that.

But by all means keep em’ coming.

3.

…In addition, these conservative justices are uniquely dishonest. I defy you to find "liberal" courts declaring rules of decision that they don't actually follow purely for the purpose of discrediting opposing legal views. This is a typical scummy, lying Republican tactic. No wonder the reactionaries engage in it. The truth is that their declared rules of decision are impossible to apply and serve only to relieve them of the responsibility for anything that resembles authentic legal reasoning. As they are frauds, not only must they be excoriated, but they personally deserve it. Alito in particular is a racist prick who lied to the Senate in order to be confirmed. His opinions are rife with transparent hypocrisy. He is as politicized as any justice has ever been and has fully earned the appellation of thug. It would suffice if that is effective political rhetoric, but Alito fully deserves it.. .

We had a stupid go around like this with Elliott Abrams not that long ago. This kind and level of rant is of no interest to me and wastes my time and ought to be beneath you. As proof: one cheque your mouth wrote that you can’t cash is your absolute inability to cite one bit of any opinion that betrays Alito as a “racist prick.”.

Post Script--personal note

You need to be more measured, in my case, about attributing political and ideological positions to me, who you do not all know. In fact, I am in principle in favor of the British system of—as I understand it—publicly financed elections, which Obama opted out of as I remember it after pledging to use that system. I think the impact of money on your country’s politics is an abomination.

Yes, your points in defense of Elliot Abrams, a convicted criminal, and why we should accept at face value his unproven factual claims on a matter of great political interest to him were juvenile indeed, particularly in light of their repudiation by members of the Bush administration of much higher pay grade. I suppose it ought to be beneath me, but as long as there are those who will profess belief in most anything that advances their political agenda, someone has to try and point out how ridiculous claims such as yours were. It is tedious though. That's for sure.

You obviously know nothing of Alito's history as a member of an openly racist organization Princeton alumni organization. During the hearings on his appointment, he attempted in painfully unbelievable terms to disavow this membership as something he had done for political advantage, to gain cred in right-wing circles, including professions to be appalled by the racism of the organization he joined for political advantage. "I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly." That suffices to brand him as a racist prick. Consider that cheque cashed, and do your homework next time. In light of his history, Alito has no business serving on the Supreme Court and is there only because he is a reliable political vote. But then, ingenuous soul that you are, the crimes and indiscretions of your right-wing delinquents like Abrams and Alito are always to be forgiven and are never a disqualification for either trust or service in high capacity.

Your argument about foreign control of money in US elections is truly risible, basman. You accuse Obama of being wrong because of a rule that says a foreign national may not participate in the election campaign decisions or take comfort that the money must have generated in the US? This is really charmingly naive of you. Do you imagine that a corporation of any size is going to spend the whole treasury on elections and that the division between foreign and domestic funds matters? Half the time the IRS cannot even sort this out. Or do you imagine that a corporation wholly owned by, say, a Saudi billionaire is going to be unable to discern what political line to take according to the wishes of its owner without having to step anywhere near the line drawn by the FEC? Are you aware that money is a fungible commodity and that there are no accounting rules that could ever suffice to tell whether a dollar that came out of a corporation is a foreign dollar or a domestic dollar? Surely you don't have such a childish view of the adult world.

As to your claims about corporate law, you are a litigator and plainly don't know very much. I just don't have the time or inclination to educate you, but there is a large body of law about the fiduciary obligations of corporations to shareholders. You do know what a fiduciary is, don't you? What you describe as "deeply ingrained legal understandings" amount to nothing more than your own ignorance about the relationship between corporations and shareholders. Corporations are entirely creations of the government, their governance is established pursuant to statute, they have no common law existence in the absence of statute, and the government certainly can structure their governance so as to require shareholder consent to particular actions. As well, under fairly standard tax law notions, it certainly would be permitted to treat expenditures for matters such as this as a constructive dividend. Whether Congress will do anything like this I would hesitate to predict. That is a different matter. The point was merely to educate you about the fact that a statute with different factual predicates can survive even what you seem to think of as a ruling more ironclad than the Constitution itself. There is no such thing. We will see what lawyers better equipped than you can come up with.

And just what the court would do if Congress reasserts its will on this subject, provoking a confrontation, is not something you are able to predict. By your lights, none of the court's retreat from overruling New Deal legislation could possibly have occurred. But it did. You appear to have no understanding of the political context in which the Supreme Court acts, or to believe that the justices sit in an ivory tower completely oblivious to the same. Again, I find it difficult to believe you are really this naive, but maybe you are.

Oh, and as far as what you call "nonsense about the facts of the case," you do live in a common law country, don't you? Have you never read an opinion in which a court distinguishes one casae from another, the rhetoric of which seemingly applies, based on a different fact pattern not raised in the prior case? This occurs even though there is no question in anyone's mind that the rhetoric of the first case applies to the subsequent case on its face. Formally, only the law of the case is binding, and that means binding on the litigants actually before the court. Strictly speaking, opinions are advisory. You can look it up.

What you call risible, what you want to believe I don't know and your insults stem from, amongst other things:

1. your frustration in dealing with arguments you can't refute;

2. your pathological inability deal with what you can't control;

3. your compulsive obsessive need to want to prevail on any isssue put before you even when you can't; and

4. your unstable inability to separate your ego based self investment in these matters from the matters themselves.

I don't take offense at anything say because what figure skates together in you is the pathetic in perfect harmony with the mentally unbalanced and hence diseased.

I have nothing more to say to you here because you now have become a complete and cringe inducing waste of my time on all of these issues.

Another pool is in place for the number of obsessive posts you will lodge here in response as you try to extirpate your neuroses. I pulled 1 out of the pool hat. Not nearly a high enough number, I'm supposin'.

See ya' later darlin' and I hope you take your medication and get all the help you need and deserve.

Itzik

Well, thanks for that, basman. I take that as a complete statement of your incapacity to deal with an argument that shoots yours full of holes, or rather notes the gaping holes that are already there.

Your sudden hauteur is, well, amusing. You are so characteristic of the right. You casually fling insults and then when they come back at you in kind, you melt into a puddle of self-pity. If your poor distraught self can pull itself together (Do you become this unhinged by opposition in your practice of law, basman? Geez, one would think you are 90 and knit doilies for a living.), see if you can parse the difference, insult-wise that is, between what you describe as "nonsense" and what I describe as "risible." Do you really suppose that I am sitting here, as you are, in sputtering, incontinent rage because you described what I have to say as nonsense? No, basman. It is funny, because you reveal your limitations in such an obvious way.

You are a coward, basman, and always have been on these posts. You are perfectly willing to dish it out, but just can't take the return fire. You and noga. You both give me a good laugh.

Have a nice day yourself. It seems you have been overcome with the vapors and should probably stay prone until you are feeling better.

R.