Relevant and even prescient commentary on news, politics and the economy.

The Rightwing Supreme Court Justices’ Fair-Weather "State Sovereignty” Canard

Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.”  The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.

Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term.  That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.

Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money.  To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves.  After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.

Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did.  My comment said:

The Supreme Court is rarely in session.  It’s seasonal, part-time work.  They usually hear argument in 10 cases a month, seven months a year.  In December, they didn’t hear even that many.
There’s really sooo much that can, and should, be said about the issue of (virtually universal lack of) access to the Supreme Court, and its repercussions.  Roberts’ bizarre, cutesy annual report is … oh … I don’t know …characteristically hubristic?

Run responded to my comment, and I then responded to his, writing:

What’s especially outrageous is the type of situation you’re talking about [a federal habeas corpus case challenging the constitutionality of aspects of the proceedings in a state-court criminal case]: The Supreme Court almost never agrees to hear cases on “direct appeal” (a legal term of art) from state supreme courts, in criminal or civil cases, with the major exception that they do often agree to do so in criminal cases when it is the state (i.e., the prosecution) that is asking them to hear hear the case in order to overrule a (rare) state supreme court ruling in favor of the criminal defendant. In state-court criminal cases, when it is the defendant who is asking the Supreme Court to hear the case in order to overturn a conviction, on constitutional grounds, the Supreme Court seems to figure that the criminal defendant can file a habeas corpus petition in a lower federal court.
Which they can, but the Supreme court has made that right an all-but-empty one–just a shell game, really–by interpreting a 1996 “jurisdictional” statute in a way that bars the lower federal courts from throwing out the state-court conviction on constitutional grounds in almost every case. With each passing Supreme Court term, the right to federal habeas review becomes even narrower, a seeming impossibility until it happens. In the last two years, the Supreme Court has treated that right as all but nonexistent. So the almost-total lack of access to the Supreme Court on direct appeal by state-court criminal defendants effectively removes access to constitutional review in federal court.
This is even truer in civil cases [including some that involve incredibly important, truly fundamental rights of the sort protected under international human rights laws, although they have nothing at all to do with, say, prison inmates; really–trust me on this], thanks to a set of perverse, gimmicky Supreme Court-created “jurisdictional” doctrines, which the Supreme Court has stood by and watched metastasize to remove any access to federal court in order to make a constitutional challenge, except for ExxonMobil, which asked the Supreme Court to limit the doctrine at issue, which the Court did, so narrowly as to apply in almost no other case, especially since the other, related doctrine actually bars access in the circumstance in which ExxonMobil was allowed to have it. (Sort of like Bush v. Gore.)
Anthony Kennedy, the leader of this state-courts-have-sovereignty-and-dignity! juggernaut, likes to say this is done in the name of liberty. (Isn’t everything the rightwing wants done in the name of liberty?!) Which reminds me of a political science class I once took on Maoism. [Maoism] included, basically, the routine use of Orwellian language, in which everything is the opposite of what its name or description indicates.
Of course, the current Supreme Court’s goal–the goal of the legal right since the early 1980s–is to turn the law into nothing but circuitous yellow-brick-road procedure: a dead-end labyrinth whose very purpose is its circuitry and fruitlessness. They’ve come incredibly close to succeeding.

There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it.  Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”)  And rarely covers even substantive issues that aren’t part of the culture wars debate.  Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.

But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts.  To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say.  (Sit tight for the upcoming oral argument there in that case.)  And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s longstanding campaign-finance statute is another example that comes (very) quickly to mind.  My mind, anyway.

To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like.  Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.

But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals.  And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can.  The result, far, far more often than not, is the very antithesis of freedom.  Except in the Matter Hatter-esque language that the legal right has found so useful.

So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.

I will, anyway.  Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”

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Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter.  This is one that I hope does.  Actually, I hope it gets a million hits.

Yeah. A million hits would be good.

Is there such a thing as hitting the Supreme Court in effigy?

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A Kiss From a Used-Car Salesman—and why it’s important to tie Romney’s “47%” comment directly to his Orwellian lies

As for the second of those three questions—Is he a cold-hearted conservative or a moderate Republican from Massachusetts?—I think there’s a third possibility.  I think he’s George Orwell.

Or, rather, that he’s channeling George Orwell.  Not Orwell, the person.  Orwell, the writer.

Orwell, of course, is most famous for his book 1984, in which politicians and government officials say exactly the opposite of what they mean.  Thus, the term “Orwellian,” which is not limited to politicians’ statements, but which refers to the use of common language terms that have a fixed meaning, and using them to suggest exactly the opposite of what those terms actually mean—and exactly the opposite of what the speaker does mean.

Up means down, left means right, black means white.  You get the picture.  Some people will think that when you say “up,” you mean “up.”  Others will understand that when you say “up,” you mean “down.”  It’s sophistry, con artistry. 

It’s also a key tactic that dictators use to gain or keep power.  Hitler, of course, used it routinely.  But so did Mao Tse-tung.  In fact, another word for “Orwellian” was, during the Mao era, “Mao Speak.”  You just change the definition of common words to mean exactly the opposite of what the words have meant.  That way, you can continue to claim that you’re doing something in particular, or will do something in particular, when you’re actually doing or planning to do the opposite.

In democracies, when politicians do that, it has another synonym: lie.  Or at least that’s been so until now.  On Wednesday night, Romney changed the meaning of many words and phrases so that they mean the opposite of what they have meant.  Not the least are the words “win” and “debate,” at least as the former normally is applied to the latter, although it was largely the news media that redefined “win,” and of course Jim Lehrer helped with the redefinition of “debate.”

But another word that underwent a quick transition Wednesday night from its normal meaning to the opposite of it is “plan.”  As in, he has a plan to cover preexisting medical conditions.  The word “plan” normally means, y’know, a recommendation or intention to change something from its current status.  The phrase “a plan to cover preexisting medical conditions” normally means a requirement that insurance companies provide medical insurance to people who have preexisting medical conditions such as, say, multiple sclerosis or breast cancer, beyond what federal law already requires.  That is, beyond the status quo. 
Which is that people who have, say, multiple sclerosis or a malignant breast tumor and have had no healthcare insurance within the previous three months can get treated at the emergency room, and then maybe file for bankruptcy if the hospital actually does provide, um, treatment for these medical problems.  Then again, Romney had redefined the word “treatment” even before the Wednesday debate, so I guess we now have to understand the phrase “medical treatment” to mean something like, “But you have no insurance and you need the sort of medical procedure that isn’t done in emergency rooms.”  Romney already had redefined the word “plan” to mean promised goals rather than the specific, credible means of achieving them. 

But that redefinition had applied only to his economic plan—a plan that he said on Wednesday night might not work, and which—although it escaped the punditry—he seemed to be admitting that he (the successful businessman!) had devised without any actual economic basis for thinking that the revenue/tax-deduction ends could meet as designed.  But this second redefinition of the word “plan” was something else entirely, because by saying that he has a plan to provide healthcare insurance to people who currently are denied it because of a preexisting medical condition, he was telling them that he plans to something specific that he plans not to do.  And it concerns some truly fundamental things, in some cases life or death, in others financial security or instead financial devastation. 

What kind of person stands on a stage speaking to 67 million people, and just plain lies about something of that sort?  Dare I say it—the kind of person who speaks derisively about 47 percent of Americans, none of whom are Bain investors, have overseas bank accounts, hire PriceWaterhouseCoopers to tally their tax returns, and have their IRA accounts in the Cayman Islands.  Nor contribute to Republican PACs or attend Romney fundraisers in Boca Raton.  Or anywhere else.

Maureen Dowd, in her New York Times column today, uses humor to run through many, but by no means all (she’s only allowed a limited number of words per column, after all), of Romney’s bald debate-“winning” lies.  And she includes the preexisting-medical-conditions one.  But I think it’s Paul Krugman who, in his Times column on Friday, titled “Romney’s Sick Joke,” best highlights that this particular lie is particularly brazen and particularly pernicious.  And Ezra Klein points out that Romney’s mendacity about his plan for healthcare coverage—and in this context it is indeed a plan, as that word is defined the old-fashioned way—runs even deeper. 

It’s been said, accurately, many, many times now that this election will determine the basic nature of American government.  But until now, that’s meant budgetary, taxing and regulatory policy.  It now means something even more fundamental, in addition: Whether or not we allow a redefinition of the word “democracy.”  Romney asks us to believe in America.  It turns out that he means an America of the sort that George Orwell feared.

Or at least one run by a used car salesman.  Read the fine print on that contract.  And on that separate warranty you’ll be charged for. 

A kiss is not a kiss when it’s described as one by someone with a forked tongue.  

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