Blog on the Run: Reloaded

Wednesday, February 1, 2017 8:33 pm

Where are we going from here?

Former Bush speechwriter David “Axis of Evil” Frum, having lately had the scales fall from his eyes, has written an article about how America can transition, and likely already is transitioning, to authoritarianism under Trump, and what that might look like.

Donald Trump, however, represents something much more radical [than any previous president]. A president who plausibly owes his office at least in part to a clandestine intervention by a hostile foreign intelligence service? Who uses the bully pulpit to target individual critics? Who creates blind trusts that are not blind, invites his children to commingle private and public business, and somehow gets the unhappy members of his own political party either to endorse his choices or shrug them off? If this were happening in Honduras, we’d know what to call it. It’s happening here instead, and so we are baffled.

He arrives at his prediction via a speculative 2020 re-election win by Trump whose basis assumes facts not in evidence (e.g., growing real domestic wages), but that’s less important than his plausible scenario for what America becomes under Trump. Given Trump’s already-demonstrated penchant for using the power of the presidency to enrich himself and his family — and to hurt his enemies financially, as he did with a single tweet — Frum thinks Hungary’s ongoing slide into kleptocracy is a likely model for what we can expect:

The transition has been nonviolent, often not even very dramatic. Opponents of the regime are not murdered or imprisoned, although many are harassed with building inspections and tax audits. If they work for the government, or for a company susceptible to government pressure, they risk their jobs by speaking out. Nonetheless, they are free to emigrate anytime they like. Those with money can even take it with them. Day in and day out, the regime works more through inducements than through intimidation. The courts are packed, and forgiving of the regime’s allies. Friends of the government win state contracts at high prices and borrow on easy terms from the central bank. Those on the inside grow rich by favoritism; those on the outside suffer from the general deterioration of the economy. As one shrewd observer told me on a recent visit, “The benefit of controlling a modern state is less the power to persecute the innocent, more the power to protect the guilty.”

He provides more detail on what he expects:

It is essential to recognize that Trump will use his position not only to enrich himself; he will enrich plenty of other people too, both the powerful and—sometimes, for public consumption—the relatively powerless. Venezuela, a stable democracy from the late 1950s through the 1990s, was corrupted by a politics of personal favoritism, as Hugo Chávez used state resources to bestow gifts on supporters. …

Trump will try hard during his presidency to create an atmosphere of personal munificence, in which graft does not matter, because rules and institutions do not matter. He will want to associate economic benefit with personal favor. He will create personal constituencies, and implicate other people in his corruption. That, over time, is what truly subverts the institutions of democracy and the rule of law. If the public cannot be induced to care, the power of the investigators serving at Trump’s pleasure will be diminished all the more. …

A mistaken belief that crime is spiraling out of control—that terrorists roam at large in America and that police are regularly gunned down—represents a considerable political asset for Donald Trump. Seventy-eight percent of Trump voters believed that crime had worsened during the Obama years.

In true police states, surveillance and repression sustain the power of the authorities. But that’s not how power is gained and sustained in backsliding democracies. Polarization, not persecution, enables the modern illiberal regime.

By guile or by instinct, Trump understands this.

As it happens, I have been thinking along a separate but related line: What happens if Republican gerrymandering and vote suppression cannot be stopped? I think that’s a real possibility. Here’s why.

For starters, earlier today Trump demanded that Senate Republicans “go nuclear” if Democrats oppose his Supreme Court nominee, Neil Gorsuch, meaning end the filibuster. Aside from the hypocrisy — the filibuster, which appears nowhere in the Constitution, was the Republicans’ main tool of opposition during the eight years of the Obama administration — that means that Republicans can put anyone they want on the Supreme Court. And given the ages of Justices Kennedy, Breyer and Ginsburg, he might be able to do that real soon. That means we can expect, fairly soon, a Supreme Court overwhelmingly against advancing voting rights and willing to tolerate vote-suppression measures many federal judges do not now find constitutional.

Because lower courts are bound by the Supreme Court’s decisions, that means we can expect judicial defeat of all efforts to expand and protect voting rights and likely all efforts to end gerrymandering for partisan political purposes. (It *might* remain possible to toss out gerrymandered districts based on rights, but I doubt it. Chief Justice John Roberts once clerked for then-Associate Justice William Rehnquist, whose antipathy to minority voting concerns dated back to his early political days in Arizona, and his work in the Justice Department during the Reagan years offers little encouragement.)

I think, then, that America will become a de facto one-party country. There will be no remaining checks and balances, because there will be no one in power in the White House, Congress or the Supreme Court who believes in them. As Frum describes above, business leaders will pledge fealty to, if not Trump himself, then at least the GOP, either out of hope for goodies or fear of retribution. Sure, some people will remain Democrats, and some Democrats will continue to get elected, almost exclusively to local office, but as a national party, and as statewide parties in most states, they’ll be done.

And once America becomes a one-party country, we’re screwed. If the Affordable Care Act hasn’t already been repealed, it will be, with all the deaths and other human suffering appertaining thereunto. Wage-and-hour regulations, meant in many cases to protect worker health and safety, will be destroyed. As for equal rights, the Republican Party already has demonstrated that it doesn’t believe in the equal-protection clause of the 14th Amendment, and several sitting justices already have ruled in ways that make clear that they are disregarding it, a trend that will only grow worse as Trump or a GOP successor appoints more justices.

An assault on individual rights will almost certainly commence, because that is what has happened everywhere else. Speaking publicly and critically about the government might not become a crime, but it likely will have serious effects on one’s career.

Our economy will become a kleptocracy. Wealth will no longer be created by ingenuity and entrepreneurship, but by getting a piece of Trump’s Big Grift.

And the pie will grow smaller, not least because the world’s best and brightest entrepreneurs, engineers, software developers, and other talent, put off by the U.S.’s xenophobic immigration policies, will choose to go elsewhere, so that wealth creation in the U.S. slows. Our store of intellectual capital will diminish as the world’s best and brightest students choose to study in other countries, while more and more of our own students will be unable to afford college because of declining real wages, rising costs, and cuts in federal aid.

And so we will enter a whirlpool of declining economic activity and personal freedom. It won’t be an apocalyptic hellscape, at least at first, but in many ways the U.S. will become what we once referred to with smug superiority as a Third World country.

Can any of this be stopped? Maybe. If the Democratic Party finally finds its spine, some of the worst might be avoided. But I have no confidence at all that 1) the Dems will find their spines, and 2) it’s not already too late.

I’d love to be wrong about this. I hope I am. But current facts certainly point in this direction, and hope is not a plan.

 

 

 

 

Tuesday, April 8, 2014 7:09 pm

If you’re having trouble understanding why Citizens United and McCutcheon were such bad decisions, it’s because Nixon would have loved them.

Chief Justice John Roberts, author of the majority opinion in McCutcheon, and Associate Justice Anthony Kennedy, who wrote the majority opinion in McCutcheon, live in a fantasy world, Ian Millhiser explains:

In 1974, a Senate Select Committee on Presidential Campaign Activities chaired by Sen. Sam Ervin (D-NC) revealed activities that nearly anyone other than the five justices who signed on to Roberts’ decision in McCutcheon v. FEC would unreservedly describe as corruption. In the early 1970s, for example, the dairy industry desired increased price supports from the federal government, but Secretary of Agriculture Clifford Hardin has decided not to give these price supports to the milk producers. In response, various dairy industry organizations pledged $2 million to Nixon’s reelection campaign — and then developed a complicated scheme to launder the money through various small donations to “hundreds of committees in various states which could then hold the money for the President’s reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure.”

President Nixon later agreed to a meeting with industry representatives, and he decided to overrule his Agriculture Secretary. The milk producers got their price supports.

The Ervin report “identified over $1.8 million in Presidential campaign contributions as ascribable, in whole or in part, to 31 persons holding ambassadorial appointments from President Nixon, and stated that six other large contributors, accounting for $3 million, appear to have been actively seeking such appointment at the time of their contributions.” Outside of the White House, the report uncovered “lavish contributions” to members of Congress from both political parties. The chairman of one oil company testified that executives perceived campaign donations as a “calling card” that would “get us in the door and make our point of view heard.” American Airlines’ former chair testified that many companies funneled money to politicians “in response to pressure for fear of a competitive disadvantage that might result” if they did not buy off lawmakers. In essence, businesses feared that if they did not give money to elected officials, but their competitors did, then their competition could use their enhanced access to politicians in order to gain a competitive advantage in the marketplace.

And yet, according to Chief Justice Roberts and his fellow conservative justices, hardly any of this activity amounts to “corruption.”

Even the Court’s 1976 ruling in Buckley v. Valeo, which famously created the law that money = speech (but also largely upheld post-Watergate campaign-finance reforms), conceded that Congress could regulate campaign contributions to prevent corruption or its appearance. But Kennedy and Roberts have gone much, much farther than that:*

Roberts’ opinion in McCutcheon, however, defines the word “corruption” so narrowly that it is practically meaningless. In order to survive constitutional review, Roberts writes, a campaign finance regulation must “target what we have called “quid pro quo” corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.” Thus, unless a donor offers “dollars for political favors,” no corruption exists.

Lest there be any doubt, this narrow understanding of the word “corruption” does not capture cases where a donor pays off a politician in order to buy access. To the contrary, as the conservative justices held in Citizens United v. FEC, “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt” (The word “speakers,” in this context, is used to refer to what most people describe as “donors”). Indeed, Citizens United goes much further than simply claiming that dollars-for-access arrangements must be tolerated. At one point, it seems to view them as an objective good:

Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.

Democracy certainly is premised on responsiveness. Though it is a strange definition of democracy that offers enhanced responsiveness to those who can afford to pay for it.

Under Roberts’ definition of “corruption” most of the corrupt activities of the Nixon era would be viewed as completely benign. Though an isolated incident, where a Nixon fundraiser promised that the president would make a donor Ambassador to Trinidad in return for $100,000, would qualify as an explicit “dollars for political favors,” arrangement, politicians who give greater access to their donors are not “corrupt” under McCutcheon and Citizens United unless they offer to exchange votes or similar favors in return for campaign donations. Indeed, even the dairy industry’s $2 million bid for a meeting with President Nixon may not qualify as “corruption,” as Roberts understands the word, because there is some uncertainty as to whether the $2 million donation was “conditioned upon or ‘linked’ to” the President agreeing to make specific changes to the administration’s policies. According to Roberts’ opinion in McCutcheon,

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

So what Nixon likely would have gone to prison for in the 1970s had he attempted to stay in office is now the law of the land, per five Republican justices who no doubt also believe they are Tsars of All the Russias, to borrow a phrase from Charlie Pierce.

And the American people know it, Millhiser concludes:

Very few Americans agree with Roberts’ view of what constitutes corruption. Indeed, a 2012 poll determined that 69 percent of Americans believed that the rule emerging from cases likeCitizens United allowing “corporations, unions and people give unlimited money to Super PACs will lead to corruption.” Just 15 percent disagreed.

To put that number in perspective, another poll found that fully 19 percent of Americans believe in “spells or witchcraft” — a full four percentage points more …

Myself, I’m wondering, given how many presumably sensible Americans have, since 2000, been willing to give away so many of their own rights and to refuse to hold accountable a generation of the most corrupt and wicked pols and business leaders since the Harding administration, whether more Americans ought to believe in witchcraft.

*I’m “conservatives oppose judicial activism” years old.

 

Thursday, April 3, 2014 7:21 pm

The Supreme Court’s McCutcheon ruling: Of the money, by the money, for the money.

In a sane country, the Supreme Court would recognize that the right of the people to a government free of undue influence by a tiny minority of the wealthy elite dramatically outweighs the right of one person to spend as much as he damn well pleases supporting political candidates, particularly when the spending creates at least the appearance, and almost definitely the certainty, of corruption: corruption in which the donor’s interest outweighs the public’s and the candidate, once elected, votes accordingly.

But we do not live in a sane country.

Associate Justice Anthony Kennedy, in the Citizens United ruling, 2010: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 

Chief Justice John Roberts, in the McCutcheon ruling, just this week: “The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance.

To both gentlemen: Are you farking blind?

Of course independent expenditures give rise to the appearance of corruption — and to the real thing. Of course aggregate limits would make it harder for apparent or actual corruption to occur. If it ain’t the money that’s causing it, gentlemen, then, pray tell, what is?

You morons have just declared as a matter of both fact and law that water is dry, that the sky is chartreuse with emerald-polka dots, and that the country and the public interest are but offal to be fed to the nation’s honeybadgers. Because honeybadgers don’t … well, you know:

UPDATE: Actually, this metaphor might do a disservice to honeybadgers, which at least do useful things like killing and eating cobras. I thought about substituting jackals, but then, generally, they only eat the dead, while our nation’s sociopath elite are at least metaphorically feasting upon the living as we speak. I don’t know what the appropriate animal would be for this metaphor, but I know what it does: It feeds on the living, particularly the poor, brown, female, and otherwise vulnerable, and it pees fracking chemicals and defecates coal ash.

Friday, July 19, 2013 7:05 pm

Retired SCOTUS justice John Paul Stevens rips Chief Justice Roberts a new orifice on voting rights …

and you could drive a Hummer through it as long as you kept the wipers going to clear the windshield of blood. Stevens doesn’t just mock Roberts’s “fundamental principle of equal sovereignty among the States,” he demonstrates that at no time in U.S. history has it existed anywhere outside John Roberts’s rear end. (Yet the Court majority in Shelby County are all, all honorable originalists.)

Stevens continues:

The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War—or more precisely continuing to use the formula that in 1965 identified those states—is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.

The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.

In her eloquent thirty-seven-page dissent, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, described the extensive deliberations in Congress over the preclearance requirement, the precedents holding that the Court has a duty to respect Congress’s decisions, and the reasons why the preclearance remedy should be preserved. Indeed, she captured the majority’s principal error concisely and clearly when she explained that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

I hope everyone who wrote all the crap about Roberts being concerned about his Court’s place in history after it upheld the Affordable Care Act will now take it back, but I’m not optimistic.

Wednesday, June 27, 2012 8:47 pm

So much for the rule of law

What’s wrong with this picture?

The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

Only eight of them predicted the court would do so.

So despite near-unanimous agreement on what the nation’s highest court should do given the relevant facts, law and judicial precedents, fewer than half believe that this court will actually do what it should. Put another way, all that stuff about judicial restraint and stare decisis  and “No judicial activism!” that we’ve been hearing from conservatives ever since Brown v. Board of Education is officially crap. Just for the record.

Of course, we’ve seen this coming since Bush v. Gore, when the conservative majority decided that allowing all legally cast ballots to be counted constituted an irreparable harm to George W. Bush. Justice John Paul Stevens’s dissent remains relevant:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Wednesday, April 4, 2012 8:22 pm

Just Die Already, Washington Post, Ruth Marcus ahistoricity edition

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.

First, here is what President Obama said during a news conference:

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]:

  1. Activities that substantially affect interstate commerce are not, themselves, commerce.
  2. 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?

(Laughter.)

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?

(Laughter.)

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.

One might be inclined to give Scalia the benefit of the doubt on a bad joke here, if not for the fact that, as Davidson’s colleague Ryan Lizza noted, he actually didn’t know what was in the bill:

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.

Thursday, March 18, 2010 9:53 pm

Memo to John Roberts

Filed under: Aiee! Teh stoopid! It burns! — Lex @ 9:53 pm
Tags: ,

To: Chief Justice John Roberts
From: Lex
Date: 03/18/2010
Re: This.

Dude. You run one of the three branches of U.S. government. You make more money than 95% of American households. If you say something publicly, 50 gazillion reporters are going to rush breathlessly to take it down and send it over Teh Intertub3z. And you’d have to be caught with a dead girl or a live boy to have even a prayer of being fired.

So either stop being such a WATB or get the hell off my payroll.

UPDATE: Hee.

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