Scalia's brilliant dissent and description of judicial overreach

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.

They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “true”“Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a would “become only secondary to the President’s.”

But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison).

The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers.

They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers…

Anatomy of a Choke

Let me be clear.  I love Phil Mickelson.

I make no bones about the fact that he is one of, if not my favorite professional athlete. 

Here's why.  One of the things my years in professional sports did for me was to make me never condemn an athlete or overly praise them for any one days worth of interaction with the public.  They have bad days like we all do,, so a story from someone about any particularly athlete "blowing them off" really doesn't mean anything to me.  Perhaps their son or daughter is sick, or they just argued with their wife, or whatever.

However, when I was young, I regularly attended the Westchester Classic, which was played right down the street from me at the Westchester Country Club.  I was dismayed by the seeming contempt ALL the golfers, with few exceptions, seemed to have for their fans.

Than, several years ago I was a security supervisor at the US Open at Winged Foot, also right down the street from me.

If anything, things had gotten worse.  The golfers would walk the so called gauntlet of fans, either ignoring them, or randomly grabbing a program or ball, etc WHILE they kept walking, signing on the run literally trying to escape the unwashed masses.

There was one exception.  Phil Mickelson.  EVERY day of the Open, he stood and signed EVERY autograph, particularly EVERY child's request.
But here's the amazing part.  If you're a golf fan, you'll remember the Winged Foot Open as the one that he REALLY choked away.

He came to the 18th hole leading.  All he needed to do was lay up and get an easy par.  Instead, he took out his driver, and put his drive into the corporate village and blew the Open.  The coronation was already happening and it was pulled away.

When he reached the 18th green and finished, I walked him into the scorers room to sign his scorecard.

He sat there, with his wife, sobbing quietly together for almost 30 minutes.

He then composed himself, walked out the door and directly to the hundreds of young fans lining up to see him, well after the tournament crowd had left.  He said to them all "I have to go do some press but I'll be right back and get everyone".

He turned around and we walked him to the mandatory interview in the press area and then, just as he said, he came back, and signed autographs until the last child was done.

To this day, I've never seen, nor heard, of anything like this.  The worst moment of his professional career and all he thought about was the fans.

And I have no doubt he did the same yesterday.

Ah, yesterday.

Before the round, he was lighthearted and excited.  "This will be fun" he told the NBC sportscaster at the end of the 3rd round.

But then, in the middle of the final round, it began to rain.  Now, it was raining for everyone, and if the rain was going to slow down the course and make scores lower, it would benefit Mickelson and his playing partner, Hunter Mahan, more than anyone else as they'd have more holes and greens slowed by the rain.

Instead, Mickelson, on the tee, turned to his caddy, and in a question picked up by the mics, asked him "does anyone have a lightning report".

I don't know if the broadcasters didn't want to comment, didn't pick up on the meaning or didn't want to speak ill, but it was clear what was about to happen.

But suddenly, "fun" turned into needless worry about something that a) was out of his control and b) had there been lightening, the USGA automatically would have suspended play.

And THAT is what a choke is.  It is when you allow your mind to wander from your task and get distracted.

And not surprisingly, Mickelson took a one shot lead and turned it into a one shot deficit in the next 3 holes.

Oh well, as I always tell people, the reason that Tiger Woods is not CLOSE to the player Jack Nicklaus was, is because, yes, Jack won 18 majors, but he finished 2d, TWENTY times.  That's right, 20.  Which means he put himself into position to win, essentially for 9 1/2 straight years, of EVERY major he played in.

And Mickelson, with 6 seconds in the US Open, has now put himself into position to win more times than anyone else in his era.  More than Tiger, Ernie Els, or anyone else.