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Mercer: Supreme Court Deadlock and Senate Inaction Undermine Rule of Law

Rarely do I hear Bob Mercer choke. But in his response to a gubernatorial tweet (which, oddly, I can’t find, and least not on the Governor’s account), South Dakota’s Pierre political reporter makes clear why yesterday’s Supreme Court stalemate on President Obama’s immigration policy is bad for the rule of law:

I choked when I saw a tweet from the governor’s office praising the U.S. Supreme Court decision on President Obama’s immigration amnesty as a victory for the rule of law. The court split 4-4. The court is supposed to have nine members, regardless of who is president. If a nine-member court upheld or overturned Obama’s immigration policy, that would be acceptable, because that’s how the system is supposed to work. A 4-4 tie means the Supreme Court reverts to a lower court’s decision. There is nothing supreme in that equation. Rule of law indeed [Bob Mercer, “4 Plus 4 Doesn’t Make 9,” Pure Pierre Politics, 2016.06.23].

A deadlocked Supreme Court leaves our nation stuck with patchwork applications of law and unequal rights for citizens in different circuits and states. South Dakota’s U.S. Senators, in refusing to do their jobs and act on the President’s nominee to fill the vacancy on our highest court, are undermining the rule of law.


  1. Don Coyote 2016-06-24 08:20

    Even with a full complement of justices, the Supreme Court may at times be forced to work with eight justices because of a recusal of one of the Justices. Mercer should be having several litters of kittens over Fisher v University of Texas since that decision was made with only 7 justices after Justice Kagan recused herself since she was the Solicitor General when that case was originally argued in 2013.

    Also Mercer fails to consider that there wasn’t enough time to get another justice seated for oral argumentation in the immigration policy case. Oral argumentation was held on April 18th only 32 days after Garland’s nomination. Obama’s nomination of Justice Sotomayor took 74 days before her swearing in. The Obama nomination of Justice Kagan was confirmed and sworn in 89 days. In the University of Texas case, oral arguments were held while Scalia was still alive!

    Sorry Bob and Cory, but the US Justice is working just fine and will continue to do so even when the Supreme Court is forced to work with less than a full complement of Justices. Probably time to go check on your kittens Bob.

  2. mike from iowa 2016-06-24 09:25

    In the Microsoft matter Rehnquist concluded, “[M]y son’s personal and financial concerns will not be affected by our disposition of the Supreme Court’s Microsoft matters.” In general justices are loath to recuse themselves from cases because it opens the way for a tie. When that happens the lower court decision is affirmed by default. If Rehnquist recuses himself from a case, the senior associate, Justice John Paul Stevens, presides.

  3. Don Coyote 2016-06-24 10:00

    In her first year on the Supreme Court, Justice Kagan recused herself 28 times, about a third of the cases heard. That means the Supreme Court operated with less than it’s full complement of judges 33% of the time. OMG. Justice denied.

  4. mike from iowa 2016-06-24 10:20

    When was the last time a wingnut justice recused him/herself?

  5. mike from iowa 2016-06-24 10:21

    Forgot to add-justice denied when bias is present.

  6. Dicta 2016-06-24 10:45

    When Mike says wingnut, I assume he means conservative because he conflates the two for ease of dismissing their points. To answer his question: O’Connor regularly recused herself on telecom cases because of her investments. Thomas stepped down on United States v. Virginia, 518 U.S. 515 (1996) because his son was attending VMI. Rehnquist srecused himself when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986.

  7. mike from iowa 2016-06-24 10:49

    O’Connor didn’t recuse herself the one time it really mattered-dumbass dubya v Gore. Why? Look around and maybe you will find the reason.

  8. mike from iowa 2016-06-24 10:50

    When Mike says wingnut, I assume he means conservative because he conflates the two for ease of dismissing their points

    You are a quick study.

  9. Steve Sibson 2016-06-24 11:06

    There is no effective rule of law with the SCOTUS because it is way too partisan. The outcome of adding the 9th judge could go either direction simply based on who selects the position. This is not the rule of law, this is an oligarchy.

  10. Lanny V Stricherz 2016-06-24 11:33

    Ah, but you are all missing the main point. Mercer choked because of DD’s response. You know, we want to keep them Hispanics out of the US, unless we want them to work in the EB-5 dairy farms, or the turkey plant or putting shingles on our buildings after the hail and ice storms of two years ago.

    And of course we want to keep them working in hotels and motels like slave labor because if they say anything about bad working conditions or being cheated out of part of their pay, we can just report them to ICE and get the next group that the coyote brings across the border.

    Don’t do anything in Washington to resolve the issue, because then we would have one less issue to keep the people riled up. Hypocrisy much?

  11. Steve Sibson 2016-06-24 11:46

    Lanny, and that is why the GOP Establishment hates Trump…his immigration policy is messing with their cheap labor.

  12. Roger Cornelius 2016-06-24 12:11

    Lanny you’re absolutely right, publicly conservatives complain about immigration, but privately they want them for their cheap labor.
    And conservatives further miss the point of this post by mudding the waters with their little tangents, when the fact of the matter is that John Thune and Mike Rounds are defying the Constitution by not having a up or down vote for President Obama’s court nominee.
    While it is true the court can function with 8 or 7 members that is no excuse for is happening with the court today.
    These conservatives are always crying foul that President Obama is not following the Constitution and yet they ignore Thune and Rounds openly spitting in the face of the Constitution by not acting on the president’s nominee.

  13. Don Coyote 2016-06-24 12:40

    @Roger: No, conservatives and supporters of the “rule of law” support legal immigrants who follow the law to come and work here or to become citizens. What they don’t like are the illegal immigrants who cut in line and flaunt the existing immigration laws.

    Advise and consent is a restriction placed on the President’s appointments, not a mandate to the Senate. The Senate is acting well within their delegated powers of Art 1, Sec 5 of the Constitution giving each House the power to determine the rules of its proceedings as to when to proceed with confirmation hearings.

    Obama seems more than content with a 4-3 ruling from the SCOTUS when it is favorable to his position but cries foul when a 4-4 ruling goes against his interests. And as I pointed out, Garland could not have been confirmed and seated in time to partake in the immigration oral arguments and decision.

  14. Steve Sibson 2016-06-24 13:00

    “conservatives and supporters of the “rule of law” support legal immigrants”

    That is right, but Obama does not care about the rule of law. He is the law and he wants to destroy America’s system of government and replace it with an Islamic theocracy. And look at the disrespect the House Democrats showed for following rules with their late night propaganda BS in regard to taking away the Second Amendment.

  15. Lanny V Stricherz 2016-06-24 13:01

    Don Coyote, you miss the point. It is not just about what happened in the past, what about if we have another deadlocked presidential election, like we had 16 years ago? A deadlocked Supreme Court at that point puts the Constitution in jeopardy.

  16. mike from iowa 2016-06-24 13:23

    He is the law and he wants to destroy America’s system of government and replace it with an Islamic theocracy. And look at the disrespect the House Democrats showed for following rules with their late night propaganda BS in regard to taking away the Second Amendment.

    Sibson-you’re a gawd damn liar!!

  17. Don Coyote 2016-06-24 13:33

    @Lanny: The Constitution is very clear about what happens when no candidate gets a majority of electoral votes. The House of Representatives then decides the election.

    Why should Democrats care anyways? Hell, you all claim that the SCOTUS gave the 2000 election to Bush. It’s ironic that the major decision of that case, how Florida counted votes violated Equal Protection clause, was decided 7-2.

  18. Roger Cornelius 2016-06-24 14:11

    You have exaggerated President Obama’s comment about the ruling yesterday, he did not cry foul, he said he was disappointed in the ruling.

  19. Stace Nelson 2016-06-24 14:29

    @Roger Cornelius Balderdash! You conflate “conservative” with crony capitalists which in fact are ideological enemies. The conservatives in our legislature have repeatedly attempted to combated growing problem of illegal immigration in our state to include my efforts to get a SDGOP platform plank added in 2012. Illegal immigration is modern day slavery and an affront to everything that conservative Republicans believe in.

    @Don Coyote Well said. Spot on.

  20. Dicta 2016-06-24 14:34

    “That is right, but Obama does not care about the rule of law. He is the law and he wants to destroy America’s system of government and replace it with an Islamic theocracy.”

    LOL dude, what the hell?

  21. Roger Cornelius 2016-06-24 14:46

    Sibson is his own little propaganda machine.
    President Obama has about six months in office, when will he start turning America into a Islamic state.
    That is like all those that believed the president, and now Hillary, are going to take their ammosexual toys away, it didn’t happen in seven years and it won’t happen in the next four years.

  22. mike from iowa 2016-06-24 15:21

    Bush v Gore was decided 5-4 to give the presidency to Bush in a pretzel twist of jiggery pokery of the 14th Amendment. This would be the major decision of that election and gave new meaning to activist judiciary.

  23. Steve Sibson 2016-06-24 15:22

    What Obama wants and what we allow are two different things. Just because enough of us stand in opposition doesn’t change what Obama really wants…take our guns so we can’t resist becoming an Islamic Theocracy. ISIS want a worldwide Theocracy. Doesn’t meant that they will get there way. Just because they don’t get their way doesn’t change what they want.

  24. Dicta 2016-06-24 15:28

    “doesn’t change what Obama really wants…take our guns so we can’t resist becoming an Islamic Theocracy.”

    lolololol.This is GOLD, Jerry. GOLD

  25. Jenny 2016-06-24 15:32

    The real Sibby comes out.

  26. Jenny 2016-06-24 15:39

    Sib, you have had too much Christianity.

  27. Roger Cornelius 2016-06-24 16:17

    There is a hell of a lot of difference between what President Obama wants and what can realistically be accomplished.
    President Obama ‘wants’ his nominee to be voted on, but he may not get it because conservatives refuse to do their work.

    Why are Cory’s post on Dakota Free Press always taken over by coveter and unsuccessful blogger Sibson?

  28. mike from iowa 2016-06-24 16:31

    One gun warehouse store in Pennsylvania sold 30000 Ar-15s online in a week after the Orlando slaughter.3 days after the slaughter,the NRA reared its ugly head with a video praising the AR-15 and encouraging Americans to buy them for protection. Kompassionate konservatism-feel sorry for the gun dealers after every mass murder.

    America’s gun-the gay killer.

  29. mike from iowa 2016-06-24 16:34

    The very first flying fickle finger of fate awarded by Rowan and Martin’s Laugh in.

  30. Darin Larson 2016-06-24 18:22

    Sibby says: “Just because enough of us stand in opposition doesn’t change what Obama really wants…take our guns so we can’t resist becoming an Islamic Theocracy.”

    Sibby, I agree. You better crawl back in your bunker and turn off the WiFi. They can trace your signal. Don’t forget to mention that we need our guns to fight off the little green men that will be coming any day now too. I’m not sure who we will have to fight off first–Obama or the little green men. What frequency of Ham radio signal will you be using?

  31. owen reitzel 2016-06-24 19:08

    Sibson I have to give you credit. Your words top the words from each previous day. It’s to the point that those words are so nuts I can’t even argue with you.

  32. happy camper 2016-06-24 21:51

    Hey, I still remember when a college professor told me Obama was a Muslim. I just went oh, really. It didn’t matter, meant nothing negative to me then but now I think Obama is way too unwilling to call out Islamic Radicalism for fear perhaps it will be interpreted as a holy war which they want, but that’s still his fault cause he should have brought all the peace loving Muslims front and center to say a holy war is not what Islam is about, not the way they interpret it. The problem is fundamentalist interpretation is very clear the radicals are right.

  33. happy camper 2016-06-24 22:08

    The further problem is Libbies will not accept Muhammad’s teachings say they should take over the world cause in your mind we are all the same. So very funny but dangerous coming from an atheist like Cory and those who agree with him.

  34. barry freed 2016-06-25 08:49

    As I watched the overly emotional and factually impaired Democrats on the House Floor, I wondered what it would take for them to care enough that they would stage a sit-in to give Medicaid the power to negotiate lower drug prices.

  35. mike from iowa 2016-06-25 09:01

    It is the morally crippled,reprehensible cabal of Korporate fluffers you know and love as wingnuts who block Dems every time they offer a bill to let Medicare/Medicaid negotiate lower prices.

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