In the place, time and culture in which I was reared, it was considered rude to draw attention to the fact that members of the fairer sex might have had the unmitigated gall to have survived on the planet in excess of four decades. Indeed, acknowledging the passage of three decades since a gentlewoman’s birth was permitted only on the occasion of her 30th birthday, whereupon she was then presumed to be 29 for the remainder of her days.
I’m so over that now.
I am 52 years old. Ruth Marcus of the Washington Post is, I believe it is fair to say, older than I am, which point I mention to highlight the fact that in both her recent criticism of President Obama for criticizing the Supreme Court and, in the same piece, her defense of that court — in whose recent oral arguments on the Affordable Care Act one could effortlessly find some of the most mendacious arguments in recent American jurisprudence — this one-time finalist for the Pulitzer Prize demonstrates that she is a contextual liar, a lousy reporter, an incipient dementia patient or just batshit insane and, in any of those cases, unfit to hold her current job, because even during her adult lifetime, other presidents have said much worse things about the courts.
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.
Marcus called the president’s remarks “rather unsettling” and added:
… Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”
But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
I actually agree with her in principle, and if this discussion were only about principle, her column would be unremarkable. But it isn’t only about principle, as any halfway conscious follower of the Supreme Court must know, because Obama’s remarks were not delivered in a vacuum.
A former constitutional law professor himself, he appears aware, as Marcus does not, that the conservative wing of the current court has abandoned its longstanding pretense that its rulings were based not on rightist ideology so much as on wanting to avoid “judicial activism” — making law from the bench rather than soberly assessing the constitutionality of congressional legislation and overturning it only when it violated the Constitution.
Now, that group — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito, with Anthony Kennedy and on-again, off-again member — is behaving as if the authority to decide major constitutional questions even at the expense of overturning legislation is not Holmes’s “grave and delicate duty” so much as it is Archimedes’s lever to move the world — back to a place and time in which the wealthy and corporations called the shots, a time both economically inefficient and thoroughly un-American.
And this trend is not new, not anything that could have sneaked up on Marcus; Jeffrey Rosen identified the trend five years ago in The New Yorker. After last week’s oral arguments on the health-care law, Jonathan Chait comments:
What made Rosen’s piece so shocking was that, for decades, judicial activism had been primarily associated with the left — liberal judges handed down broad readings of laws to expand rights, enraging conservatives who believed they were taking upon themselves decisions better left to democratic channels. Their complaints were not wholly unfounded — even if you support, say, abortion rights, as I do, the notion that the Constitution requires the right to an abortion is quite a stretch of judicial activism. The whole conservative legal and political movement had come to orient itself around opposition to judicial activism, which actually remains the term Republican politicians use to disparage liberal judges.
The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”
The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators.
The blogger NYCSouthpaw explains exactly how Scalia, in particular, has flip-flopped dramatically in a relatively short time. In the 2005 case Gonzalez v. Raich, Scalia wrote in a concurring opinion that a 1937 case, National Labor Relations Board v. Jones & Lauglin Steel Corp., gave Congress the right not only to regulate interstate commerce but also to regulate things that, while not commerce themselves, could substantially affect interstate commerce. The court in that case found that Congress had the power to do so under the “necessary and proper clause” of the Constitution, which basically holds that Congress can do anything not otherwise banned by the Constitution if it is a “necessary and proper” way to carry out constitutionally permitted responsibilities.
Scalia made that argument in support of prosecuting a guy in California who was growing marijuana in his own back yard for his own personal use, so as you can see, he took a very broad view then of what Congress can do to regulate “interstate commerce.” Writes NYCSouthpaw:
So, two things to note that Scalia says [in his Raich concurrence]:
- Activities that substantially affect interstate commerce are not, themselves, commerce.
- A 1937 labor rights case, NLRB v. Jones & Laughlin Steel Corp., permits the regulation of activities that have a substantial effect on interstate commerce (i.e. not commerce).
Now look back up at Scalia’s exchange with [Solicitor General Donald] Verrilli [during health-care act oral arguments]. That 1937 case, Jones & Laughlin, is the very one that Verrilli is referring to. Verrilli uses Jones & Laughlin to try to persuade Scalia that the Supreme Court often extends Commerce Clause authority to new areas that have a substantial effect on interstate commerce (in that case, unions, in this case, health care).
But Scalia shuts him down, saying that “there was no doubt” that “what was being regulated” in Jones & Laughlin “was commerce.” That’s the flip flop.
For a good recent example of the court’s situational jurisprudence, one need look no further than Citizens United — not only for the substance of the ruling, which not only continued but expanded the conflation of speech with purchased audience begun by the court in 1976 in Buckley v. Valeo, but also for the unseemly and actually unprecedented way in which the court practically begged other parties to bring challenges to the law as it then stood. Normally, the Supreme Court lets cases “ripen” — letting real litigation involving real people work its way through trial courts and appeal courts in the ordinary course of time. As Henry Aaron, senior economics fellow at the Brookings Institute, points out, the argument that the act’s requirement to buy health insurance constitutes a “tax” normally couldn’t even have been litigated, let alone gotten to the Supreme Court, until someone had first actually been made to pay for insurance. And that requirement doesn’t take effect until 2015. (Granted, the ACA cases appear to have been heard on a somewhat accelerated schedule once appeals courts ruled, but only because proponents, opponents and the justices alike all saw benefit, for various reasons, resolving the contradictions among the appeals rulings quickly. And it is hard to argue that the American people, many of whose lives will be dramatically affected by the outcome either way, were harmed by that acceleration.)
Marcus, with her Harvard Law degree and her years of covering the Supreme Court for The Washington Post and her near-Pulitzer-worthy status, either is unaware of this context of conservative justices’ recent behavior, or she is deliberately ignoring it.
She also appears historically unaware — almost a capital offense among students of Supreme Court jurisprudence — that Obama is far from the first president to gripe about unelected justices. That griping has continued without surcease at least since Marbury v. Madison 200 years ago, a case of which Marcus, at least, claims to be aware. But Marcus, like many denizens of what blogger Digby likes to call The Village — the Washington government/media establishment that vigorously defends any encroachment on the privileges of wealth and power, leaning Republican although it’s frequently less a matter of partisanship than of differences with those who are Not Our Kind, Dear — criticizes Obama’s recognition of reality without the slightest hint of acknowledgment that far worse has gone before. Consider this remark from then-presidential candidate Ronald Reagan in 1980:
The former California governor, campaigning in Birmingham, Ala., Thursday, blasted the court’s most recent abortion ruling as “an abuse of power as bad as the transgression of Watergate and bribery on Capitol Hill.”
Yeah, because engaging realitically with the practical ramifications of a law is just like felony bribery, burglary, tax evasion and obstruction of justice. (Also, isn’t it quaint how Republicans a generation ago acknowledged that Watergate really was a crime rather than a liberal media coup? But I digress.)
(UPDATE, 4/6: And how could I forget this not-so-golden not-so-oldie from Newt Gingrich, which Marcus appears to have let go by without comment, let alone criticism? Newt Gingrich pledged not only to “abolish whole courts to be rid of judges whose decisions he feels are out of step with the country” — which is constitutional, but only if Congress legislates it and the president signs off or allows the bill to become law without his signature; Congress also can, of course, impeach federal judges individually and remove them from office without affecting the existence of the judgeships themselves — but also to “send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings,” which is unconstitutional on its face.)
That’s bad enough. But then consider Marcus’s expert’s summary of what the justices actually did during oral arguments:
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
Contrast that analysis with this one from Amy Davidson of The New Yorker. Granted, Ms. Davidson has never come within sniffing distance of a Pulitzer Prize that I know of, but unlike Marcus, she appears actually to have been present at the arguments and/or read the transcripts:
Here’s where a person could lose just a little bit of patience with the Supreme Court: in the midst of an exchange with Deputy Solicitor Edwin Kneedler, Justice Antonin Scalia saw an obstacle he didn’t like:
JUSTICE SCALIA: You really want us to go through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?
JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?
The twenty-seven hundred pages make up the text of the Patients Protection and Affordable Care Act. Put aside, for the moment, the matter of the mandate and “severability” and “community ratings” and all the rest. If the Justices—or their clerks—need to read through a law to figure out whether it’s constitutional, it shouldn’t matter whether the law is twenty-seven pages or twenty-seven thousand (those numbers are divisible by nine, so they can split them up). Perhaps that’s a civilian’s view, and that’s not how things work in the Court these days. … But it’s a good bet that there are many, many Americans whose chronic illnesses or health crises have generated far more than twenty-seven hundred pieces of paper, from doctors and hospitals and labs and insurers and, in too many cases, ultimately from collection agencies. Even if you’re covered, the broken state of the health-care system has meant hard work, and hardship, for millions of people.
2. Justice Antonin Scalia: “All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what do you call it, the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.” (N.B.: The so-called Cornhusker kickback was repealed by Congress only days after the Affordable Care Act was signed into law.)
Sadly, that wasn’t the only example. I know no more about insurance than any other insurance agent’s son, but it was clear even to me that the conservative justices either didn’t know or were pretending now to know how insurance works. Put simply, and this has been the case since the English began colonizing North America, it is a mechanism for spreading risk. But don’t take my word for it; Aaron at Brookings, linked above, discusses it in pretty simple language:
Several of the justices, notably Scalia and Alito, responded to the externalities argument by saying that every economic transaction creates similar externalities. “If I don’t buy a Volt, I raise the price of Volts,” said Scalia. Alito said much the same thing. So did Paul Clement’s brief for the plaintiffs.
This response was and is bad economics. It is true that every commodity is produced along what economists call a “cost curve”—raising output may lower average or marginal unit costs by spreading overhead or achieving economies of scale, but it may also raise costs by forcing up the cost of inputs or incurring diseconomies of scale. None of this occasions concerns about fairness or free-loading or, to use the economist’s term, “externalities.” But the cost shifting that occurs when uninsured patients fail to pay their bills does; it causes one group—the insured—to have to pay part of the cost of services others use.
Perhaps the most glaring instance of the failure to appreciate what an externality really is came from Justice Alito who at one point challenged the solicitor general by positing that the cost of all of the care currently used by those who are uninsured is less than would be the cost of the insurance they would be forced to carry. That being the case, Alito asked, how can one say that the uninsured are shifting costs to the insured? This query is painfully detached from an understanding of what an externality really is, how insurance works, or what the impact of insurance would be on service use.
Kevin Outterson, a Boston University law professor who co-directs the No. 2 health-law education program in the country, is even blunter:
On Tuesday, several Republican Justices and the Solicitor General displayed remarkably limited understanding of the nature of health insurance risk pools. If a healthy person stays out of the pool, the average costs for those left in the pool are higher. That’s not true for underwritten insurance products (such as life or auto).
So at least several of the justices didn’t understand the very nature of the industry upon which they were being asked to rule.
That’s bad enough. What worse, and has been widely remarked upon, is that not only were the justices ignorant of the industry, they were ignoring decades of settled law with respect to what Congress can and cannot do under the Constitution’s grant of power to regulate interstate commerce, spouting discredited right-wing talking points during the oral arguments and in general behaving so ignorantly that even Charles Fried, the notably liberal (that’d be irony) solicitor general during President Reagan’s second term, felt obliged to call the court out on both its tea-party talking points and its lack of principle in this Q&A, which Marcus might even have read, inasmuch as it was published by The Washington Post:
Ezra Klein: Tuesday’s arguments seemed to focus on the question of a “limiting principle.” So is there a limiting principle here?
Charles Fried: First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!
EK: The Court seemed to see it as considerably more complicated than that.
CF: There’s all this stuff that got in there about creating commerce in order to regulate it. … But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-care market, as [current solicitor general Donald] Verrilli said a million times. And it’s very hard to deny that.
There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts [i.e., extreme libertarians; link added — Lex] of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.
And yet Marcus and her Post editors seem to think that this behavior, called out far and wide by conservative and liberal legal experts alike, constitutes “wrestling with a legitimate, even difficult, constitutional question.”
You know, it’s one thing for a fascist, racist, lying demagogue like Rush Limbaugh to call the president a thug (a word which, these days, tends to have unmistakably racist connotations) for daring to draw attention to this pattern of behavior on the part of the nation’s highest court. It’s quite another for someone who is supposed to be one of the most capable and credentialed observers of that court to write a column so contextually lacking as to constitute a major — indeed, fatal — distortion in order to make an invalid point.
But that’s what passes for journalism today at The Washington Post, which is why Marcus needs to find another line of work and the Post needs to go ahead and die.
UPDATE: And James Fallows catches the AP going all Politifact on us. Sheesh.