Blog on the Run: Reloaded

Saturday, June 27, 2015 2:02 pm

Depending how your dream goes


(I don’t know who this artist is; if someone knows, please advise and I’ll be happy to give credit. Cartoon by Bob Englehart, Hartford Courant, but was Photoshopped; the original included only the first three panels.)

“This has been the best week for all Americans of good will since Richard Milhous Nixon fled the presidency.”

This post started out to be a lot of gloating about how badly so many different people of ill will have taken it in the teeth this week. I was going to write a lot about how the moral arc of karma is long but this week it bent toward a righteous, multifaceted ass-kicking. I was going to write about laughing as the people on the wrong end of these decisions cried their bitter, bitter tears of frustration and rage, and how I intended to fill goblets and flagons with those tears and how the whole damn house was going to enjoy several rounds on them and so on. And I particularly intended to review Justice Antonin Scalia’s dissents in two Supreme Court cases so that you could enjoy the spectacle of a right-wing hack’s head exploding.

But overnight, those feelings receded. They didn’t go away. They’re still there, and for all I know could come flowing back in all their fury given the right prompt. But they’re no longer top of mind.

Instead, what I’m feeling most right now is something that feels quite foreign to me: satisfaction. Why? Because without doubt this has been the best week for all Americans of good will since Richard Milhous Nixon fled the presidency more than 40 years ago. Not only is the Confederate battle flag likely coming down at the South Carolina Statehouse (at this writing no vote has been scheduled), but a number of large companies have pledged to stop selling Confederate-themed stuff. And at the Supreme Court, not only was the Affordable Care Act upheld (again), the court also ruled that same-sex couples have the right to marry in this country.

That last one, though not unexpected, was particularly delicious because the bad guys were hoisted on their own petard. The anti-SSM crowd had argued that marriage was so important an institution to our society that it had to be protected. Justice Anthony Kennedy, writing for the majority in a neat bit of judiciary jiujitsu, responded, in effect, “Yes, it IS important — so important that it is a basic right that belongs to ALL.” And then he dropped the mic.

Let’s look at who lost here:

So who won? Everybody, really, including the people who lost, because as a result of these changes, all of us, including them, are going to live in a better America. America is a little less bigoted, significantly more financially secure and a helluva lot more equal today than it was last weekend.

Now, this wouldn’t be my blog if I didn’t point out a few caveats. For one thing, nice as it is to get the Dixie Swastika off the Statehouse grounds and to start a real conversation about the noxious culture surrounding it, we still have to start a real conversation about the larger culture of racism, of which the flag is only a symbol.

We would be morally obtuse if we didn’t grasp that the whole reason we’re even having a conversation about the Dixie Swastika is that a young man in the pernicious grasp of its culture walked into an old and beloved Charleston church and shot nine innocent people to death in cold blood. And we would be even more morally obtuse if we didn’t start that real conversation about the culture of racism. Oh, we’ve nibbled at it here and there — a number of politicians, including my own Sen. Thom Tillis, have been caught taking money from a white-supremacist group, the Conservative Citizens Council — but I’m afraid it’ll take even more bloodshed before we get serious about this.

We also need to talk about how easy it remains for crazy people to buy guns. I know that it looks like Gun America (including but not limited to the NRA) has shut down this conversation, and that more people will die needlessly as a result, but we need to keep having it anyway.

As for the Affordable Care Act and health insurance, we remain basically the only Western industrialized democracy where a health problem can bankrupt you. That still needs to change, for all the good, and it is a lot of good, that Obamacare has done in recent years (at lower cost than expected and with greater beneficial effects on the deficit than has been expected).

And while same-sex marriage remains the law of the land, there are still some holdouts, including some county clerks or deed recorders who are saying they simply won’t marry anyone rather than marrying same-sex couples. (Remember when public pools were closed outright during the desegregation era rather than be opened to African Americans? Good times.) They’ll have to be sued individually. But they will be. And they, too, will lose. And there no doubt will continue to be lawsuits because in areas other than marriage, some people will continue to insist, in the face of law, logic, and morality, that LGBTQ folks don’t have the same rights as the rest of us.

All these challenges, and some nontrivial losses, still lie ahead of us. More blood and treasure will be spilled. Reactionaries gonna react. It’s what they do. It’s how they roll. And they tend to get worse, to escalate, every time they do; as Steve M. at No More Mister Nice Blog reminds us, “they vote, they dominate many American states, and they own guns.” And they’re getting at least some positive reinforcement from high places; as my friend Mark Costley observed on Facebook of the Supreme Court’s dissenters:

… they are — I believe consciously — furthering a right wing theme calculated to weaken the confidence of the citizenry in our government. The right wing of the Republican Party (commonly understood to be the right 11/12 of the party) has embraced an anti-intellectual populism in which the courage to be wrong and stick with your position is one’s greatest trait. This anti-intellectualism makes it impossible to engage in any effective discussion of policy making, national priorities, or governmental accountability.

Few politicians in U.S. history have gone broke inciting lack of confidence in the competence and good will of government, and there are a lot of scared, uninformed, armed people only too willing to believe the worst. So this, too, will be an issue even as we now have 35 years of experience in seeing what horrors so-called limited government inflicts upon our life, liberty, and pursuit of happiness.

But I actually have some hope. As I observed above, this is going to be a better country for the losers as well as the winners in this week’s events, and it isn’t foolish to hope that because the country will be better, at least some of those who may see themselves on the losing end eventually will come to see that it all was for the best.

And I hope everybody else sees that, too, for this week has been as transformative in America as any in decades. And even as we begin to think about what lies ahead, it would be churlish of us not to celebrate it. It is uncharacteristic of me to say so, but I suggest we celebrate — not with the bitter, bitter tears of our opponents, but with champagne.


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, November 22, 2013 6:34 pm

Wingnut legal wankery, cont.

Earlier this week, in a case called Planned Parenthood v. Casey, the Supreme Court in effect upheld Texas’s draconian new restrictions on abortion — a law that effectively outlaws abortions in a huge swath of west Texas. In so doing, it upheld a 5th Circuit court ruling “staying” — preventing from taking effect — a District Court ruling that parts of the law were unconstitutional.

Now, to stay the District Court ruling, the appeals court had to find that allowing that ruling to stand pending appeal would constitute “irreparable harm” to the state of Texas. It also had to find that the stay “”substantially injure the other parties interested in the proceeding” — i.e., pregnant women in Texas.

The appeals-court judge who wrote that court’s ruling, Priscilla Owen, really did find, against both facts and common sense, that the state of Texas would be irreparably harmed if the District Court ruling were allowed to stand while it was being appealed AND that no other parties interested in the proceeding would be substantially injured. Yes, she did. Lawyer/blogger Scott Lemieux comments:

What makes Owen’s opinion remarkable, however, is her justification for the conclusion that temporarily preventing the law from going into effect would constitute “irreparable harm” to the state of Texas. Circuit Court judges are bound by Supreme Court precedent; they cannot create new legal standards on their own. But as one lawblogger notes, the basis for Owen’s conclusion would be embarrassingly feeble if there was any evidence that she was capable of embarrassment. The following is a comprehensive list of the precedents cited by Owen to justify her conclusion:

  • A bare assertion from a 1977 solo opinion—not speaking for the court—by then-Associate Justice Rehnquist that “[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (“It seems”—well, I’m convinced!)
  • A solo opinion—again, not speaking for the Court—by Chief Justice Roberts citing the Rehnquist opinion without any further defense.
  • That’s it.

This precedential basis would need a lot more heft to merit being called “threadbare.” And it’s even worse than it appears at first glance. First of all, Rehnquist’s opinion applied to a case where at least the statute had already gone into effect, making the argument of “irreparable harm” to the state even weaker as applied to the Texas abortion case, where it had not. And second, there’s a reason that this dictum has never appeared in an actual Supreme Court majority opinion—it doesn’t make any sense. If this “principle” were taken seriously, states would have an unlimited right to enforce unconstitutional laws for as long as the legal challenges take to wend their way through the courts, irrespective of the harm caused to those who rights were violated. This simply cannot be right.

How does Scalia’s counter to Breyer—typically long on belligerence and short on logic—reply to these obvious objections? Why, by merely citing the Rehnquist and Roberts opinions again. So now, the next time a hack Republican judge wants to make a politically expedient decision to deny or vacate an injunction preventing the enforcement of potentially unconstitutional legislation, he or she can now cite four precedents endorsing the same erroneous tautology without any attempt to defend it. It’s a nice con if you can pull it off.

“Because Rehnquist said so.” “Because Roberts said Rehnquist said so.” “Because Scalia said Roberts said Rehnquist said so.” Seriously, that’s an actual sitting appeals-court judge’s idea of how precedent works. IANAL, but I’ve examined enough SCOTUS cases to know that that isn’t law, that’s wanking: The string may get longer, but because no case majority opinion is ever cited, the amount of actual legal value therein starts at zero and stays there.

So much for the rule of law. And I disagree with Lemieux that this is merely a con. I think it’s straight-up dictatorship: These people have decided that they’re going to overturn Roe v. Wade  by hook or by crook and meddle deeply into the medical affairs of women without legal or constitutional justification for doing so, and that’s that. If you were kidding yourself about that before, please stop.

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?


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.

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 29, 2012 12:25 am

Is it too late for John Cole to file an amicus brief with the Supremes?


Because he has a good point:

I just discovered what it [“the broccoli mandate”] is, and it distresses me to no end that our wingnuts are actively trying to make us dumber. Of course no one is going to be mandated to buy broccoli, you wankers. But you know what I am mandated to buy because of the actions of a bunch of midwestern conservative pols? Corn. There is a live, actual corn mandate. Every time I go to the gas station to buy gas, I am forced, against my will, to buy corn products.

So you know where you jackasses can stick that broccoli…

I also don’t see the Supremes objecting to the fact that I have to pay for wars I don’t support.

Oh, and while we’re on the subject, Antonin Scalia stumbled onto something very interesting with his point about legislative inertia. And, by interesting, I mean, “damning.”

Scalia, remember, is a guy with a long track record of claiming that congressional gridlock is a feature, not a bug. Now, however, in today’s “severability” argument — that is, what, if anything, else should the Supremes do if they find the Affordable Care Act’s requirement to buy health insurance unconstitutional: toss out that part only and leave the rest to Congress, or toss the whole thing and order Congress to start fresh?

A couple of points:

First, I was listening to this on the car radio, but it sounded to me as if Scalia was arguing that the court should toss the whole enchilada because Congress, which he believes should, can’t. If that’s in fact what he meant, it’s an interesting 180-degree switch from his view up until now that it ought to be hard to get Congress to do things.

Second, it’s interesting in that he appears to be arguing that the Congress isn’t just inertial, it’s dysfunctional. Given that the reasons for that are well-known and objectively attributable in the main to one and only one party, Scalia’s party, it’s kind of damning in terms of how it characterizes congressional Republicans.

Third, he appears to be making the case, then, that separation of powers means nothing if that separation leads to an outcome he doesn’t want (or, technically, fails to lead to an outcome he desires). This is the apotheosis of judicial activism, which, of course, we have been roundly assured that conservatives such as Scalia oppose. Relatedly, given the fact that the GOP has no alternative — not even an unworkable one; they literally have nothing — to the Affordable Care Act, I eagerly await Scalia’s leaping in to craft health-care law from the bench once the ACA is struck down, 30-million-plus currently insured Americans get kicked back off the rolls and all hell breaks loose. Ahem.

An awful lot of really smart legal scholars, even some who worked in the Bush 43 administration, predicted that the court would uphold the Affordable Care Act, individual mandate and all, and now many of them are horrified to find out that this case might not be decided on the facts and the law after all. In point of fact, the scales fell from my eyes more than a decade ago, with Bush v. Gore. I figured that any court that could issue that ruling might well find public sodomizing of kittens constitutional as long as a GOP solicitor general argued for it, and Scalia’s questions and tone in this week’s oral arguments on the health-care law seem to bear that out.

Well, OK, that’s not exactly what I said seven months ago, but it’s close:

So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the overturning of 70 years of case law and not all that surprising, given the predilection the Roberts Court has shown for legislating from the bench. … But were I forced at gunpoint to make [a] prediction, I’d call for no worse than a 5-4 majority to uphold. The bottom line is that Justice Kennedy hasn’t gone crazy. Yet.

Kennedy’s sanity isn’t as much of a lock now as it was in August.


Sunday, March 25, 2012 4:21 pm

Quote of the day, Affordable Care Act edition

Filed under: We're so screwed — Lex @ 4:21 pm
Tags: , ,

From commenter Barry Friedman at Charlie Pierce’s blog:

Twelve milliseconds before ACA was passed, there wasn’t a rube in this country who actually liked his or her insurance company; twelve seconds after the Supreme Court strikes down the law, the rubes will remember why.

Friday, July 2, 2010 8:47 pm

Shorter Thurgood Marshall Jr. …

… to Republican Senators: You want to fight about my father’s legacy? Bring it on, beehortches!

Monday, June 21, 2010 6:22 pm

Quote of the day

Sen. Al Franken, D-Minn.: “I mean, I don’t speak Latin. But unless stare decisis* means ‘overturn stuff,’ then maybe it’s time for conservatives to stop calling other people ‘dangerous radicals.'”

*”To stand by that which has been decided,” more or less. I don’t speak Latin, either. Oh, and if you follow that link and scroll down, you’ll get to the full text of Franken’s speech, and Dawn Johnsen’s. Both are very much worth reading.

Saturday, May 8, 2010 9:55 pm

Why Elena Kagan will be Obama’s Supreme Court pick

Filed under: Odds 'n' ends — Lex @ 9:55 pm
Tags: ,

Because, as Glenn Greenwald points out, the liberals hate her:

(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan’s record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): “Blank Slate.”

(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan’s relationship to Goldman Sachs.  That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street.  The Huffington Post‘s Sam Stein has more on the Kagan/Goldman Sachs connection.

(3) Following up on the article published yesterday in Salon by four minority law professors — which condemned Kagan’s record on diversity issues as “shocking” and “indefensible for the 21st Century” — Law Professor Darren Hutchinson of American University School of Law today writes that Kagan’s record is “abysmal.”

Regardless of your particular views on these matters, that diversity is both vital and fair in the hiring process has long been a central plank in progressive thinking.  It takes little creativity to imagine what Democrats would say about a Republican Supreme Court nominee with a hiring record similar to Kagan’s.  The question is whether they will be as consistent as these law professors are in applying their claimed beliefs to their own side.  This is the issue that caused Linda Monk to rescind her endorsement of Kagan.  Will Kagan-defending progressives now suddenly say that diversity is irrelevant?  Will they try to claim that there were no qualified minorities for the Harvard Law School faculty?  How will they reconcile everything they’ve always said about diversity with Kagan’s record as Dean?

(4) This headline, from, is a darkly amusing and quite revealing one to read about the Obama White House’s front-runner to replace John Paul Stevens:  “Supreme Court Watchers Wonder:  How Conservative Is Kagan?

(5) Law Professor Jonathan Adler persuasively argues why Diane Wood would be easier to confirm than Elena Kagan.

(6) The New York Times‘ Charlie Savage today explains that executive power is one key area where Obama’s choice could bring about major changes to the Court, given that his selection would replace Justice Stevens, who was so stalwart about imposing limits on such power.  As Savage writes, Kagan’s record (to the extent such a thing even exists) “suggests she might generally be more sympathetic toward the White House than Justice Stevens.”

(7) Perhaps most revealing of all: a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows:  “The reality is that Democrats, including liberals, will accept and push whomever Obama picks.”

Now there are two dynamics at work here.

One is that it is conventional wisdom in Washington that to be Taken Seriously, you have to punch a hippie. That means no picking a truly progressive nominee. And if there is one thing that Obama has shown in his time in office, it is the ability and willingness to punch a hippie, on subjects ranging from torture to health care.

The other is the notion that the hippies will take the punches and like it because they have nowhere else to go.

Greenwald, to his credit, says that anyone who really does think that way shouldn’t — that if they have serious philosophical or policy differences with Obama or his nominees, then they ought to, well, differ. If that sounds familiar, it’s because it’s the same thing he said back in 2006 about Republicans/conservatives who differed with Bush. Of course, back then it was just Glenn being partisan.

Me? I think any potential nominee of either party and whatever political philosophy who can be mentioned in the same breath as Harriet Miers without the speaker’s being laughed out of the room has no business on the Supreme Court. But beyond that, I have no idea.

Wednesday, May 5, 2010 8:12 pm

The Supreme Court ruling that the Supreme Court TOTALLY needs to write

Filed under: Fun,I want my country back. — Lex @ 8:12 pm
Tags: ,

Courtesy of The Onion, sadly, and OH, so NSFW.

I would personally carve onto Mount Rushmore the face of any Supreme Court justice who wrote an opinion as stunningly cool as this one.

Thursday, April 29, 2010 11:30 pm

Must-see TV: Clarence Thomas sitting there not saying anything

Filed under: Cool! — Lex @ 11:30 pm
Tags: , ,

The Senate has approved a bill requiring Supreme Court sessions to be televised.

On the one hand, this is a no-brainer: The public’s business, whenever possible, should be done in public.

But there are some tricky constitutional issues here. (And before I go any further, say it with me, kids: I Am Not A Lawyer.)

For example, let’s say the law passes. The Supreme Court could decide that it violates the Constitution’s separation of the powers of the three branches of government.

Except who would have standing to sue? The only people who would be “harmed” by the law are … members of the Supreme Court. (Whereas the other 299,999,991 of us are harmed by the status quo.)

So who would decide whether the Supreme Court would have standing to sue? Well, ultimately, the Supreme Court, I guess. I’m pretty sure I know how they’d rule on that one.

So let’s assume the Supreme Court sues and that the case, however it’s decided at trial, is appealed to the Supreme Court. Let’s further assume (because otherwise this blog post would have to end) that 1) the Supreme Court decides that the Supreme Court has standing to sue and 2) that the Supreme Court wins on the merits — that is, it rules the law an unconstitutional violation of the separation of powers. What then?

Well, Congress still has the power of the purse. So Congress could say, OK, fine, not one thin dime for you nine or [UPDATE: Sorry; Article III, Section 1, says Congress can’t cut federal judges’ pay while they’re in office — just the pay of everyone who works for them, along with any and all appropriations for the Court itself] any of the people who work for you until you bring in the cameras. At that point, as I see it, the justices have three options:

  • Quit, in which case the president will appoint new ones who will promise to let in the cameras, and the Senate will get sworn promises to bring in the cameras out of the nominees before voting to confirm.
  • Keep working without pay, and require their staff to do the same even though they’re not getting paid, which will go on until all the staff quits (at which point Clarence Thomas may as well quit because it’s not like he actually researches and writes his own opinions) and/or they run out of office supplies.
  • Neither work nor quit, which means, since they’re appointed for life, that they stay justices until they die, except that Congress could impeach them — remember, an impeachable offense is whatever the House of Representatives votes that it is — and remove them from office.

So, the Supreme Court can fight the law, but they’ll get about as far as Bobby Fuller did. Sucks to be them, I guess, but it’s better for the rest of us.

Saturday, April 17, 2010 10:44 pm

I had not realized this …

Filed under: Odds 'n' ends — Lex @ 10:44 pm

… but the retiring Supreme Court justice John Paul Stevens is the high court’s only Protestant. Protestants constitute 51.3% of America. Outside the arena of abortion rights, I am unsure how significant this fact is — indeed, it may not signify much of anything.

Sunday, February 28, 2010 10:33 pm

Having legalized corporate election-buying, the Supreme Court now prepares to legalize political corruption

Why would Associate Justice Antonin Scalia ally himself with defense lawyers? Because it would give him the opportunity to rip up the so-called “honest services” law, which has been instrumental in prosecutions of such powerful people as lobbyist Jack Abramoff, Illinois governors George Ryan and Rod Blagojevich, media baron/stockholder-screwer Conrad Black, Enron exec/stockholder-screwer Jeffrey Skilling, and former Alaska legislator Bruce Weyhrauch.

The Supreme Court: coddling white-collar criminals since 2010.

Monday, December 21, 2009 2:14 pm

Abortion and health-care reform

Filed under: We're so screwed — Lex @ 2:14 pm
Tags: , , ,

If I understand correctly — and I might not, or I might have at one point but then the bill changed — the version of the health-care bill now pending in the Senate says that you can’t use public money to pay for abortion. So if you’re getting any kind of federal subsidy on private health insurance, you have to set up a segregated account, paid for with your own money, for coverage of any abortion you or your dependent(s) might need.

This strikes me as legally/constitutionally problematic. I think it might be both a violation of the equal-protection clause of the 14th Amendment and a back-door way of circumventing Roe v. Wade. (I also think it creates a paper trail for the government on who has had, or thinks she might need to have, an abortion, which, from a legal standpoint, ought to be none of the government’s damn business where private insurance is concerned.) Which means it may become, intentionally or not, a vehicle for another Supreme Court challenge to Roe.

And with the current makeup of SCOTUS, I have no doubt that, all the rhetoric about “judicial restraint” notwithstanding, the conservative majority is even more eager to overturn Roe than they are to overturn the ban on corporate political contributions.

And since they basically ordered lawyers at gunpoint to bring them a vehicle for overturning that ban, I’m guessing that given the opportunity, they’d vote to overturn Roe without even hearing oral arguments if one of their number suggested that approach out loud. (I’ll bet at least three of them already have written their opinions.) It’s not like anyone could, or even would, do anything but yell.

Monday, November 30, 2009 10:56 pm

Odds and ends for 11/30

Somebody make this guy a senator: Vermont’s Bernie Sanders on reappointing Ben Bernanke as chairman of the Fed: “No, I absolutely will not vote for Mr. Bernanke. He is part of the problem. (If) he’s the smartest guy in the world, why didn’t he do anything to prevent us from sinking into this disaster that Wall Street caused and which he was a part of?” Now all we need is 50 more just like him.

More Sanders, just because it’s so damn refreshing to hear someone standing up to banksters on behalf of taxpayers: “If the taxpayers of this country have spent $700 billion bailing out Wall Street because they are too big to fail, why is it that 3 out of the 4 largest financial institutions today are bigger than they were before the bailout, why is it ok that 4 large financial institutions write half the mortgages, two thirds of the credit cards, and control 40% of the deposits. The bottom line to me is that the middle class in this country is collapsing. We have seen this trend downward for many many years. We need a new direction. We need President Obama to take this country in a new way,new economic policies and you don’t appoint the same old guys if you’re going to do that.”

Relatedly: Fifteen questions the Senate Banking Committee should ask Bernanke but probably won’t.

Shorter McKinsey: The European commercial real estate market to the contrary, 2 + 2 != 5. Even shorter McKinsey: If you own a dime of European commercial real-estate financing, you’re so screwed.

Sex scandals can be/Grounds for excellent haiku/Enter this contest: Talking Points Memo is having a contest to see who can submit the best haiku about one (or more) of 2009’s political sex scandals. Send yours to

AIG? Is not, after all this talk of bonuses for its employees, out of the woods, which means taxpayers aren’t, either. Sigh.

Sarah Palin’s “bus” tour? Also included some trips by chartered private jet. Which would be fine if she’d just, you know, either said that up front or not even made mode of travel an issue. But no.

Even Republicans think Newsweek’s Jon Meacham is an idiot: Meacham said Cheney should be the GOP presidential nominee in 2012. But a WashPost poll of Republicans finds that only one respondent out of about 800 — 0.125% — thinks Cheney best represents Republican principles. And when respondents were asked an open-ended question about who the nominee should be, no one suggested Cheney.

Memo to John Harris of Politico: Explain to me again why thinking rationally about how to solve the country’s problems is a bad thing. Because we tried that whole deciding-with-the-gut thing already and look where that got us.

Reason No. 5,677 why Obama ought to do the right thing on Afghanistan, rather than what Republicans say he should do, courtesy of Andrew Sullivan: “If he ramps up Afghanistan and delays Iraq withdrawal, he will lose his base. If he does the full metal neocon as he is being urged to, he should not be deluded in believing the GOP will in any way support him. They will oppose him every step of every initiative. They will call him incompetent if Afghanistan deteriorates, they will call him a terrorist-lover if he withdraws, they will call him a traitor if he does not do everything they want, and they will eventually turn on him and demand withdrawal, just as they did in the Balkans with Clinton.”

Because if we don’t know about it, then we don’t have to do anything about it: The Supreme Court, overruling an appeals court, lets the Obama administration keep secret some photos of torture. Dammit. We will regret this ruling, and probably sooner rather than later.

Monday, June 22, 2009 8:53 pm

Truth, justice and the American way

In theory, and at its best, the American criminal justice system both finds out the truth and metes out appropriate justice to the deserving, guilty and not guilty alike. As a state prosecutor whom I used to cover would always tell juries during both opening statements and closing arguments, “verdict” comes from Latin meaning, “to speak the truth.”

But in real life, most days, the anti-crime politics of The American Way have turned what is supposed to be a search for truth, if not justice, into a conviction machine. And conviction machines, like sausage machines, frequently produce repulsive products.

I suppose one probably could find a more repulsive product than the Supreme Court’s 5-4 ruling last week in the case of an Alaskan prisoner named William G. Osborne. But the search would stink to high heaven and probably would lead to the discovery of the execution of innocent people.

The court denied that prisoners have a right, post-conviction, to obtain DNA testing that might conclusively prove their innocence (or guilt). What’s particularly galling in this case is that Osborne has been in prison since 1994, when DNA testing was much less precise than it is now. It’s not like Osborne is only now raising an issue that he could have raised 15 years ago. (And even if he were, so what? The failure of his counsel to have done so at the time should have been treated as prima facie evidence of that counsel’s incompetence, had such testing then been available.)

The Times editorial noted that Chief Justice John Roberts, in his majority opinion, acknowledged that DNA testing is more precise than ever before. But, the Times said, “he treated that breakthrough more as an irritant than an opportunity.”

Think about that: Roberts didn’t give a damn that 1) an innocent man might be in prison and 2) a rapist might still be running around free. Neither did four of his colleagues. Their vote in this case, a clear violation of a defendant’s right to confront evidence against him, is not strict constructionism. It is sociopathy, and it ought to be grounds for impeachment. At the least, no sane person can call it justice.

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