Justice Samuel Alito’s Law — from the oral argument of “King v Burwell”

By guest columnist Al Rodbell

I was reading the live blogging from the Wall Street Journal this morning when the subject of "standing" was raised. First, let me give the most common understanding of what this qualification to bring a suit means from the Wikipedia article, which also happens to provide the expanded meaning of the term. (This detail was debated among some friends this morning).

The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the "something to lose" doctrine, in which the party has standing because they directly will be harmed by the conditions for which they are asking the court for relief.

It was this specific element that was being discussed when Alito said this from the Wall Street Journal at 8:46:

Justice Alito strongly suggested that the Supreme Court was no place for the issue of standing to be hashed out for the first time. "You want us to have a trial on whether any of these plaintiffs have standing", he asked with some derision. (The Supreme Court doesn’t hold trials.)

This happened to strike me, first, because I personally find Alito to be a stain on this court for his wanton manipulation of the traditions of the august body in several cases that I will describe. Both have to do with challenging the dominant religious beliefs of this country. This comment, that the Supreme Court does not address the standing of challengers (plaintiffs) is willfully ignorant of another case, where a Supreme Court decision on lack of standing of Mike Newdow caused his case to be dismissed, without ever considering the merits:

While all eight justices who participated in the case voted to overturn a 2003 federal appeals court decision that would have barred the phrase (under God) in public schools as a violation of the constitutional ban on state-sponsored religion, a majority of five did so exclusively on procedural grounds, ruling that the atheist who brought the case, Michael A. Newdow, lacked legal standing to sue.

While Alito was not on the court then, his obliviousness to this landmark case shows the level of his legal acumen, or more likely that he has a selective understanding, knowing what games he can play to serve his anti-secular goals for this country. One example is a three decade long legal saga that should have ended when the Supreme Court refused to take an appeal that had determined that a 42 foot high cross in San Diego on government property must be removed, this in spite of numerous sham transfers of ownership.

His ploy has worked. Since our pusillanimous congress and president don't have the courage to let the constitutional prohibition of a national religion take its course. He did this by writing a denial of certiorari statement in 2012 that was treated by the public as being from the entire court, which it was not. I wrote this extensive article on this event. (No other commentary on this one, so I guess my view prevails!!!)

The cross still stands, and with every year that goes by, this constitutional breach becomes a "fact on the ground" like the settlements in occupied Palestine. This is Samuel Alito, who is a living realization of the fear that was expressed over JFK that he would be an agent of the Pope. Kennedy transcended this, but Samuel Alito seems to answer to a power higher than our Constitution in many areas of jurisprudence, especially that of our secular Constitution.

There is no doubt that he will cast his lot with ending the Affordable Care Act on a technicality, that a random sentence overrides the entire premise of a complex law. His delaying the decision on the Soledad Cross will only make enforcing the constitutional requirement to remove it that much more divisive. He may have made it so great, that this example of "Justice Delayed is Justice Denied" will take on a new meaning. No longer an admonition but a prescription to beat the spirit of any law, and principle of justice.

And so it goes.

                       Al's commentary can be found at AlRodbell.com.

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