Recently, would-be legal expert Arlen Specter invented the legal concept of a “superprecedent,” a legal non-concept he attributes to Some Legal Scholars^TM of which he cites none, and of which none can be found. Presumably, in Specterville, while it’s a tad judicially activist to overrule any existing precedent (however dumb or obviously wrong that precedent may have been), any “superprecedent” is a third rail only a completely lawless nut would attempt to overrule. Such “superprecedents” include, conveniently enough, Specter’s pet right to abortion, having first been pulled out of Harry Blackmun’s ass discovered in the seminal case of Roe v. Wade, 410 U.S. 113 (1973), and subsequently reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and Stenberg v. Carhart, ___ U.S. ____ (2000)).

Of course, the same argument could be made for the preservation of all sorts of screwy stuff. Take, for example, the infamous “separate but equal” rule established by Plessy v. Ferguson, 163 U.S. 537 (1896) which was reaffirmed in Cumming v. Board of Ed. of Richmond County, 175 U.S. 528 (1899), a unanimous decision authored by Justice Harlan, the lone dissenter in Plessy,, and again in Gong Lum v. Rice, 275 U.S. 78 (1927), State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) and Sipuel v. Board of Regents of University of Okl., 332 U.S. 631 (1948), to name the education-related cases only, and arguably again even in the more recent cases of Sweatt v. Painter, 339 U.S. 629 (1950) and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), where the Court declined the plaintiffs’ invitation to overturn the separate but equal rule even while ruling in their favor that the defendants had failed to abide by it. So if the 32-year old, twice-affirmed Roe is a super precedent, by the time of Brown v. Board of Education, 347 U.S. 483 (1954), the 58-year-old, 4⁺ times affirmed separate but equal rule must have been a super duper pooper scooper precedent, which really, really, double-dog, cross your heart and hope to die can’t be overruled. Yet the Brown court did so, unanimously even.

In fairness to this idiot distinguished Senator, I’m sure that exhuming the super-precedent of racial discrimination is not part of his intended agenda, just an unintended side-effect of it. So let’s move on to another constitutionally untenable super-precedent Specter does want to exhume. I refer of course to the judicial nullification of the Tenth Amendment, which the U.S. Supreme Court enforced vigorously until everyone’s favorite autocrat, Huey Long Franklin Delano Roosevelt, threatened to pack the Supreme “Court” with his cronies if its existing members didn’t shape up in a hurry and begin constitutionalizing his unconstitutional policies. As recently as 1919, when the Women’s Christian Temperance Union was so drunk on power it thought an entire nation could willingly eschew getting drunk on anything else, even their most fervent supporters understood that such a radical policy required a constitutional amendment, and not a simple “Gee whiz, ya think?” Congressional finding that alcohol had a measurable impact on interstate commerce. Yet, mere decades later, after years of wrangling with the only President in history who thought himself too important to limit himself to two terms, the Supreme finally cried “uncle” in the pivotal case of Wickard v. Filburn, 317 U.S. 111 (1942) which effectively nullified the Tenth Amendment by judicial fiat and converted what had previoulsy been the United States of America into what is now, for all intents and purposes, one great big United State.

Following Wickard, lest anyone get the mistaken idea that the doctrine of enumerated powers still meant anything, the U.S. Supreme Court did not strike down a single law on a Tenth Amendment grounds for 53 years straight. Finally, in 1995, the Supremes made a baby step in U.S. v. Lopez, 514 U. S. 549 (1995), holding that kids bringing guns to school was a matter of state law, not a plausible effort on Congress’s part to regulate interstate commerce. This precedent was upheld five years later in U.S. v. Morrison,529 U.S. 598 (2000), which applied the same rule to a federal statute giving rape victims a federal cause of action for rape. Last anyone falsely conclude that these cases actually, y’know, mean anything, the Supremes ruled 6-3 this past term in Gonzales v. Raich (2005), holding that a prohibition on purely intrastate, noncommercial possession and use of marijuana does not exceed Congress’s power to regulate interstate commerce.

Now, mere months after that embarassing precedent in Raich and mere weeks after having announced his discovery of the “superprecedent,” Specter decried as “judicially activist” not the tortured reasoning of Raich, but the pre- (and, in theory, post-)Raich notion that the Tenth Amendment means anything at all. Note that he’s not only complaining about Lopez, in which the Supremes eschewed strict adherence to a 53-year superprecedent in favor of a minimally plausible construction of the Tenth Amendment itself, nor even about Morrison, which converted the rogue Lopez precedent into a superprecedent in its own right. No, he’s complaining about the possibility that John Roberts, if confirmed, might actually follow that superprecedent himself rather than reflexively overruling it like any good German judge would:

At the confirmation hearings that begin Sept. 6, Specter advised that he’ll ask Roberts whether he believes that the court has more competence than Congress to decide the reach of the Commerce Clause. He’ll also be asked to explain his thinking about how the high court decided U.S. v. Lopez and U.S. v. Morrison, rulings that Specter described as essentially overturning “almost 60 years of Congress’ power under the Commerce Clause.”

So 53 years of graft is “almost 60 years,” which in turn is far more important than adhering to the text of the Constitution itself. Wow. That means that by the time of Lopez, FDR’s arm-twisting of the Independent Judiciary^TM was every bit the super-precedent that the separate but equal rule was immediately prior to Brown. Only a bit less so, really, when you consider older precedents as well. While I have no doubt in my mind Plessy was decided incorrectly, it was consistent with the one thing Arlen Specter admits to caring about: precedent. The Fourteenth Amendment, the sole constitutional basis for challenging state-sponsored segregation, was less than 30 years old at the time of Plessy, and there were no prior cases stating whether or not “equal” protection demanded that the races be allowed to mix or merely that they both be provided for separately. By contrast, the Tenth Amendment has been the law of the land since 1791, and the scope of the Commerce Clause has remained unchanged since the original Constitution was ratified in 1788. Yet, if you’re Arlen Specter, a coerced 1942 decision that overrules both the plain meaning of two constitutional provisions and at least 151 years of Supreme Court jurisprudence is no big deal. But if another court, 60 years later, gives back just a tiny bit of what the first court was arm-twisted by the executive into taking away, that’s judicial activism – and so is refusing to overrule that precedent later on.

Between this, Robert Bork and the likelihood that he necessitated the ugly “Gang of 14″ compromise, will someone please remind me why any Republicans, let alone the White House, support Arlen Specter?