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

How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee,, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision


QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

Conservative Legal Movement Week at the Supreme Court

This is Conservative Legal Movement Week at the Supreme Court.  (Okay, even more so than most weeks.)  Things really get going tomorrow, when the court will hear argument in two legislative-redistricting cases at the behest of (surprise!) Conservative Legal Movement voters represented by Conservative Legal Movement lawyers whose names on a petition for review (a “petition for certiorari”) guarantee that five justices will read the petition.  (All but one is a member of the usual-suspect crowd; the other one is a St. Louis-based lawyer I’ve never heard of, but presumably is active in Republican election-law circles.)

Things get going today with a state-sovereignty case, but this case is peanuts—just a small appetizer—compared with what will come tomorrow.  The first one tomorrow, Harris v. Arizona Independ­ent Redistricting Commission, is the one that will be argued by the St. Louis lawyer.  You can read about it here.  It is, best as I can tell—and I make no claim whatsoever to expertise in election law—by far the less far-reaching of the two redistricting cases, and because an outcome favorable to the petitioners, it seems to me, might not be an unalloyed long-term (or even short-term) victory for Republican candidates, an outcome in favor of the petitioners may not be in the bag.

Not so for the effects of a victory for the petitioners in Evenwel v. Abbott, Governor of Texas, the second case to be argued tomorrow.  Its purpose is to have the Supreme Court declare that legislative districts, federal and state, must be apportioned according to the number of eligible voters in each district, rather than the number of residents in each district as indicated by the Census.  So minors, recent immigrants or immigrants who have not yet gone through the naturalization process, convicted felons, and elderly Blacks who cannot produce a birth certificate from Nowhere County, Mississippi, will lose their status as legal constituents of the policymakers formerly known as their congressional or state legislative representative.

Which presumably would permit them to stop paying taxes, including sales taxes, since, y’know, the founders would be upset at the idea of taxation without representation.

This is outright crazy.  But it also in right in line with John Roberts’ own recent, surprising public statement about what his modus operandi is in joining with his four Reagan-era Conservative Legal Movement colleagues to make dramatic changes in broad areas of law: quiet.

As in, speak very softly and drive an armored vehicle (i.e., cases in obscure areas of election law and procedural and jurisdictional law the public has no clue exist) through the Democratic Party; labor unions; civil rights plaintiffs of the sort that benefited from the original purpose the Court stated for its “strict scrutiny” equal protection pronouncements that the Court now regularly disavows without actually mentioning that it is doing so (more about this, maybe, in a follow-up post about Wednesday’s argument at the court); civil rights plaintiffs who are challenging state and local authorities’ bald and routine violations of even the most obvious and fundamental civil and human rights; and ordinary consumers.  (Ordinary is a careful selected term or art here, but I won’t elaborate in this post.)

Roberts and his compadres  have, since the ’80s,  had a list of perhaps 10 areas of law that they they are hellbent on using the Supreme Court and the lower federal courts to rewrite.  It is the Federalist Society’s unabashed agenda.  But always—first, foremost and forever—their priority is using the Supreme Court to try to orchestrate a permanent Republican majority across the full breadth of elective office: the presidency, both houses of Congress, state governorships, state legislatures, and various county and municipal offices.  And Roberts, whose very essence is stealth, does not ever take is eye off that ball, even if his more intemperate or less skilled colleagues do.  If Roberts miscalculates on whether or not the public will notice a momentous opinions replete with bizarre statements—Citizens United, for example, in 2010—it may be time two years later to uphold much but not all of the Obamacare statute, since that issue wasn’t an election-law case and ruling striking the ACT down did have the potential to inure to the benefit of Democrats in the 2012 election.  Including to Obama.

So I guess I should add one more reason why the petitioners in Harris might lose: The opinion in Harris and the opinion in Evenwel will be released either on the same day or a day or two apart with Harris released first.  Seeee, everyone?  The Evenwel ruling wasn’t partisan.  Got that?

A coup by any other name—Supreme Court capture of the electoral process, I guess, would be the name—smells as rotten.

The case argued on Wednesday—and it is the only case to be argued that day; usually the Court hears arguments in two cases on the very few days each year on which it hears arguments—Fisher v. University of Texas at Austin, is a standard-issue affirmative-action-in-public-universities case, although this case is back for its second turn at the Court.

I might write more about this later today or tomorrow in a follow-post (Conservative Legal Movement Week at the Supreme Court, Part II, I guess), but this case has a remarkable peculiar twist added only at the Supreme Court level—normally problematic procedurally, but, well, y’know ….  This time around, aided by the suggestion of the dissenting judge (an aggressive, high-profile Conservative Legal Movement G.H.W. Bush appointee) on the lower appellate court panel that ruled in favor it the university and its admissions criteria, the petitioner, Abigail Fisher, a white graduate of a public high school in a wealthy Houston suburb, in claiming an affinity with African-American students who were admitted to the university.

It’s an insult to those students, she now claims.  And since for several reasons, including that her grades and SAT score were not high enough to gain her admission even without the school’s use of race in any aspect of the admissions policy, and that she long ago now graduated from another university (a weaker problem than the first, in my opinion), she may otherwise lack legal “standing”—an actual live and particularized injury—to pursue the case, she wants to piggyback on the insult she suddenly says was perpetrated on the Black students under the university’s admissions system the year she applied and admits now under the same policy.  She’s concerned about the university’s insult to the Black students they admit!

This is far more clever than her earlier piggybacking on Supreme Court petitioner Jennifer Gratz, the white salutatorian of her working-class suburban Detroit high school whose SAT score apparently wasn’t quite up to the par set by the children of more upscale folks, and who eventually won her case against the Supreme Court against the University of Michigan at Ann Arbor in 2003 (after she, too, had graduated from another university) in a case challenging not the university’s preference for the children of those who looked to be able to pay the tuition without financial assistance from the school or student loans, but instead the university’s racial affirmative action program.  Because, well, that was the only civil rights avenue available to her–although once the original purpose of the “strict scrutiny” test for determining equal-protection lawsuits, as has now occurred, the automatic application of strict scrutiny to any equal protection claim based on race, but not to most other grounds for a claim  of denial of equal protection, itself violates equal protection.  I would think.

But on the piggybacking-on-the-insulting-the-Black-admittees’ ground, three of the current justices, and (I think) Roberts as a lawyer for the Bush folks (I think), did think George W. Bush had legal standing to invoke the voting rights of Florida Republican voters whose votes would be diluted if all those ballots with hanging or pregnant chads used by Democrats in counties and precincts that hadn’t cleaned their punch-card equipment since the Civil War were counted.  Now, I’ll grant that the Bush v. Gore opinion did limit its ruling to that case only.  But there are other Republicans in need of such a courtesy from the Court, too, and Abigail Fisher seems to be one of them.  “Standing” on that ground is probably in the bag for Fisher.

Taking a page from John Roberts, Jeb Bush solves the problem of workers working part-time who want to work full-time: The way to create full-time jobs for part-time workers who want, but can’t find, full-time jobs is for part-time workers who want, but can’t find, full-time jobs to start working full-time. [With awesome update!]

My aspiration for the country and I believe we can achieve it, is 4 percent growth as far as the eye can see. Which means we have to be a lot more productive, workforce participation has to rise from its all-time modern lows. It means that people need to work longer hours.

— Jeb Bush, in an interview published today in the Manchester, NH Union Leader


Anyone who discounts 6.5 million people stuck in part-time work & seeking full-time jobs hasnt listened to working Americans @hillaryclinton

— Jeb Bush, on Twitter later today, responding to a Tweet by Hillary Clinton that included a chart from the Economic Policy Institute showing stagnating wages in the face of dramatically rising worker productivity since the 1970s.


The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

— John Robertswriting for a 4-1-4 Supreme Court plurality in 2007 in Parents Involved in Community Schools v. Seattle School District No. 1, saying that voluntary-student-participation school race desegregation/integration plans in Seattle and Louisville (in two separate cases argued together) violated the Fourteenth Amendment’s Equal Protection Clause.

Okay, these aren’t quite the same thing, but one reminded me of the other.  Roberts conflated remedial government policy with longstanding private-sector race discrimination that resulted in the need for government remedial policy.  Bush, by contrast, identifies a problem (people who work only part-time because they are unable to find a full-time job) and thinks that’s the same as proposing a solution to the problem (how to create an economy in which everyone who wants a full-time job can get one).

Which I suppose is why everyone interpreted his comment to mean what the statement says. They assumed he knows the difference between problem and solution, between coherence and tautology, and therefore was suggesting that the way to bring about 4% annual growth in GDP is for workers to decide to work 24/7.  Silly them.

Of course, also, by his decision to use the term “productivity,” he unwittingly walked headlong into the stark facts of wage stagnation in the face of significant worker-productivity gains in the last forty years.  For which Occupy Wall Street, Elizabeth Warren, Bernie Sanders and Hillary Clinton are grateful.  I am, too.

This guy is dumber than a rock. The Koch brothers badly need to find a smarter puppet. Soon.  


UPDATE:  Reader Sandwichman and I just exchanged the following comments in the Comments thread to this post:


July 10, 2015 11:53 am

Dean Baker at the Guardian (not Dean’s headline):

Beverly Mann

July 10, 2015 1:23 pm

Well, with due respect to Dean Baker, Sandwichman, I think that what Bush is suggesting is not that we emulate the old Soviet Union but instead current Russia. And that countries such as Germany, Holland, Australia, Canada, New Zealand, Switzerland, Sweden, Finland, Norway, Denmark and Austria do so, too. See the chart published yesterday by Hunter Schwarz online at the Washington Post.

Wow, no wonder Germany’s GDP growth has held up so poorly, and that that country’s unemployment rate was so much worse than this country’s during the aftermath of the 2008 international financial-industry crash!  [This is sarcasm, folks.  Germany’s economy held up way better than ours.]*

Seriously, folks, here’s the list:

  1. Mexico: 42.8 hours
  2. Costa Rica: 42.6
  3. Greece: 39.3
  4. Chile: 38.3
  5. Russia: 38.2
  6. Latvia: 37.3
  7. Poland: 37.0
  8. Iceland: 35.8
  9. Estonia: 35.75
  10. Hungary: 35.7
  11. Portugal: 35.7
  12. Israel: 35.6
  13. Lithuania: 35.3
  14. Ireland: 35.0
  15. United States: 34.4
  16. Czech Republic: 34.2
  17. New Zealand: 33.9
  18. Italy: 33.3
  19. Japan: 33.25
  20. Canada: 32.8
  21. Spain: 32.5
  22. United Kingdom: 32.25
  23. Australia: 32
  24. Finland: 31.6
  25. Luxembourg: 31.6
  26. Austria: 31.3
  27. Sweden: 30.9
  28. Switzerland: 30.1
  29. Slovenia: 30.0
  30. Denmark: 27.6
  31. Norway: 27.4
  32. Netherlands: 27.4
  33. Germany: 26.4

Yup.  Definitely prefer Russia’s economy to Germany’s!  Sounds like a winning argument for Bush.

Other great comments in the thread include this one by Frank Stain:

July 10, 2015 9:55 am

“This should not pass unnoticed: in trying to wriggle out of his “people need to work longer hours” gaffe, he characterized people working 30 hours a week instead of 40 as “getting in line and being dependent on government.” The scroungers! ”

Why does Jeb Bush hate stay-at-home moms?

And this one by Sandwichman:

July 9, 2015 10:28 pm

McCarthy, eh? Now I remember who Jeb reminds me of. Not Joe but Charlie.

Actually, I came this-close to adding, after my comment that the Koch brothers badly need to find a smarter puppet, that Charlie McCarthy would qualify. Wish I had!

Updated 7/10 at 2:25 p.m.

*Bracketed comment added 7/11 at 1030 p.m.

In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine. I’m glad. Even despite the immediate repercussions for EPA authority.

[T]oday’s victory may have been even more decisive than it looks at first glance.

It isn’t just that the Court ruled six-to-three in favor of the government’s position, with John Roberts and Anthony Kennedy joining the Court’s liberals in support of a single, non-splintered decision, though that’s important.

It’s also that Roberts’ opinion may have precluded any future efforts by a Republican president to use executive discretion to cancel the subsidies for the millions of people on the federal exchange. [Italics in original.] This option might have been left open if the ruling had been written differently.

A decisive win for Obamacare, Greg Sargent, Washington Post, today


The Court issued opinions in two of its seven remaining cases this morning, in this one, King v. Burwell, is in my opinion the lesser-significant of the two.  Texas Department of Housing and Community Affairs v. Inclusive Communities Project, in which the Court, ruling 5-4, upheld as both intended by the Fair Housing Act and within permissible constitutional bounds the right to invoke that Act to challenge government agency and private business actions that, while not overtly racially discriminatory, plainly have a discriminatory effect.  It is a tremendously important opinion, even beyond the housing issue.  And no slouch in the significance department is another 5-4 opinion issued this week, Kingsley v. Hendrickson, that began, finally, the process of limiting what has been the tacitly unfettered authority of prison guards to brutalize both pretrial detainees and post-conviction inmates—although the dissents in that opinion deserve their own post, and soon will get one.

But the far-reaching importance of the King opinion today, authored by Roberts, is in its choice to interpret the statute directly as providing for the subsidies irrespective of whether a state had designed and runs its own insurance exchange or instead defaults to the option by which the federal government created and runs the state’s exchange.  The government had argued both that that was the clear intent of the statute in providing for the default (the backup) option, and, alternatively, that under a Court-created doctrine known as “Chevron deference,” courts are required to give deference to the statutorily designated federal agency—here, HHS—in the agency’s reasonable interpretation of an ambiguous provision in the statute.

The Chevron-deference option would have enabled a later White House administration’s HHS to interpret the statutory language at issue—“an Exchange established by the State”—as the King plaintiffs claimed: Tax credits are available only in states in which the Exchange was set up and is run by the state, not an Exchange set up and run for the state by the federal government.

The Chevron-deference doctrine was created in a 1984 Supreme Court opinion, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., mainly for the purpose of allowing Reagan’s regulatory agency chiefs to orchestrate the industry capture of the respective regulatory agency charged with regulating the capturing industry.  Federal laws that create regulatory agencies provide that the agency itself will design regulations addressing specifics, in order to give effect to the broad design and mandates of the Act that establishes the agency.  The EPA was the original target of the Chevron doctrine, and is still the most common, I believe, but obviously the doctrine comes in handy in undermining regulations regulating the financial industry, the pharmaceutical industry, employee safety, and, well … you get the idea.

The doctrine’s stated premise is a clearly sensible one: that the very purpose of creating a regulatory agency is to have a permanent body of experts in the relevant fields employ their expertise to study the science, the technology, the methodology, and promulgate regulatory mandates and parameters that give effect to Congress’s purpose in enacting the statute and creating the regulatory agency.  But the extreme deference that the Chevron doctrine has appeared to accord to the agencies has, rather than served to effectuate congressional regulatory purposes in enacting the statutes that come within the regulatory jurisdiction of the relevant agency—the Clean Air Act vis-à-vis the EPA, for example—turned control of these agencies into political footballs.

Which was fine with the conservative justices, as long as the White House was in Republican hands.  But nearly seven years into the Obama administration, they’ve had enough, and have begun to make noises indicating a change of heart on Chevron.  They want to rein it in.  Two of them, joined by the four Democratic justices, took the first step toward that today, in King. And tomorrow, it is widely expected, in a case called Michigan v. Environmental Protection Agency, the five Republican justices will take a second, broader, and direct step, in an opinion that will strike down as beyond its authority under the Clean Air Act the current EPA’s interpretation of that statute as permitting it to regulate the release of mercury into the air by power plants.

And as a longstanding critic of the Chevron-deference doctrine, I’m thrilled with the Chevron implications of King.  As someone who’s not fond of the effects of mercury on the health of anyone or anything who breathes, though, I won’t welcome the substantive result in tomorrow’s opinion. But I hope, and think, that the issue of statutory regulation of power plants will become a somewhat potent issue in next year’s national elections.

What won’t be a national issue in next year’s elections, federal and state, are tax credits for subsidies for healthcare premiums under the ACA.  Which is precisely why Roberts and Kennedy decided that King must be decided as it was decided today.  Last March, after the argument in the case, I predicted exactly correctly what would happen, and why—and have never looked back, instead rolling my eyes at all the continued handwringing of liberal pundits so worried about the case’s outcome.

I pointed out back then that Roberts, for all his desire to fully, thoroughly, complete the circa 1980s Conservative Legal Movement’s takeover of American law, point by point by point, wants first and foremost, always—always—to provide every possible assist to Republican candidates for federal and state elective office.  Once it became clear, as it already had by the time King was argued at the Court, that a victory for the plaintiffs would spell electoral disaster for Republicans for federal and state office next year, Roberts’ vote, and the outcome of the case, was clear as well.

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

Obviously, the New York Times Editorial Page is Lying*

I know for a fact that the alleged facts stated in this New York Times editorial today are false.  Or at least that, contrary to the editorial’s claim, those facts, if true, no longer have any impact on black Americans’ financial status and educational opportunities.  None whatsoever.

I know this because I read John Roberts’ and Anthony Kennedy’s opinions in cases that touch on such matters.

Okay, so maybe the writer of that editorial isn’t actually a liar.  Maybe he or she actually believes that the claims in the editorial are true.  Which would indicate that that writer does not read John Roberts’ and Anthony Kennedy’s opinions, at least not the ones that concern such things.

In any event, that editorial should be retracted.  Immediately.  With a concession that it misstates fact.


*Okay, I know from experience that someone will post an angry comment here indicating that he or she thinks the title of the post, and the post itself, aren’t, y’know, facetious.  The title of the post, and the post itself, are facetious. The Times editorial, by the way, is titled “How Racism Doomed Baltimore.”

Dear Greg Sargent: YOU may not know what Scalia and Alito were up to yesterday. But I do.*

The chief justice said almost nothing.

Supreme Court Appears Sharply Split in Case on Health Law, Adam Liptak, New York Times

Okay, so how well did my predictions from three days ago hold up at the argument yesterday* in King v. Burwell?

Well, I got the outcome right, but not the particulars of how it will occur.  By saying almost nothing, Roberts said everything you need to know: The ACA will remain undisturbed.  He will join with the four Dem justices in an opinion that simply invokes standard statutory-interpretation methods that the Court employs when, say, it’s the Tea Party whose interests that long-established mechanism serves. In, y’know, garbage statutes. There’s no way—seriously; there really is no way—that Roberts would sit through 80 minutes of argument, in this of all cases, almost completely silently, if he intended to vote to interpret the four-word phrase at issue as the statute’s challengers ask.

Roberts will leave Kennedy to his federalism obsession—his bizarre the-Civil-War-and-the-Reconstruction-amendments-are-figments-of-the-political-left’s-imagination claims. (Roberts shares this view, but only as a means to specific Conservative Legal Movement ends, such as nullifying the Voting Rights Acts.)  Sure, the majority opinion will invoke the fancy the-federal-government-can’t-coerce-the-states-not-even-by-subterfuge federalism ground tailored specially for Kennedy.  But it will do so only to undermine the challengers’ belated switch argument: that Congress intended that the subsidies be available only in states that had set up and run their own websites, and that the purpose of the provision in the ACA that provided that the federal government would set up and run websites for individual state healthcare markets in states that do not set up and run their own was to mislead the states about the effect of a failure by the state to set up and operate its own website. (Congress knows better than to try that kind of thing and think it could get away with it! Unless, of course, it knew it wouldn’t get away with it.)  Originally, the challengers had argued that the four-word phrase at issue was an inadvertent error.

Congress’s clever ruse was predictably effective, since, as Kagan, Sotomayor, Ginsburg and Breyer noted, the federally run websites would have no products available and no customers, so the state legislators who bought the head fake weren’t really all that gullible in not catching on.

Then again, as Dahlia Lithwick reported, Scalia commented to Solicitor General Donald Verrilli: “How can the federal government establish a state exchange. That is gobbledygook.”  Which surely it is, since although each state has its own separate insurance market under the ACA, available only to residents of the respective state, the ones set up and run by the federal government were intended to have no actual insurance policies available, or customers to buy policies even if one or two policies should happen to pop up on one of those non-state exchanges.  And Scalia—no fool, he—does now recognize that that could undermine the challenger’s Plan B argument that Congress gamed this all out and decided to lull the states into a false sense that they could default to the federal government the setup and operation of the exchanges, with no ill effects.  Pun intended.  So Scalia needed a Plan B to save Plan B as something he could assert in his dissent.

But Scalia’s pointing this out wasn’t really the main gist of what he was up to yesterday. What he really was up to was having his cake and eating it too. He apparently waited until it was becoming clear that Roberts and Kennedy would do the heavy lifting for him and Thomas and Alito, and then largely reverted to his November 2014 garbage-statutes position—that is, to his pre-January 21, pre-Fair Housing Act case argument comments about how the Court normally interprets complex, multi-section federal statutes that intend to establish a coherent policy.

Well, inadvertent garbage, or instead advertent garbage; whatever. Either scenario works in this silly save-us-from-ourselves-please-while-we-protest-too-much kabuki act.  Just as Sens. Orrin Hatch, Lamar Alexander, and John Barrasso indicated in a Washington Post op-ed published last Sunday that was unabashedly directed to Roberts, Kennedy and Scalia.

Specifically, this trio opened its message with:

Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

Oh, okay. Republicans have a plan to protect Americans harmed by the administration’s actions that for the last year are providing them with healthcare, by enabling them to continue to have the healthcare insurance that is harming them.  In other words: Please, Supreme Court, save our party’s election chances in 2016, just as we quietly asked you a couple of months back, Antonin Scalia, to do.  But since it takes only one of you to do this for us, the rest of you don’t have to participate.  One sacrificial lamb is all that’s necessary.  The rest of you, write a dissent along the lines of … well, I’ll let Greg Sargent explain:

At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.

This had more significance than it first appeared.

Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”

That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.

Whereupon this happened:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –


That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.

Sargent goes on to say:

I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.

Okay, well, unlike Sargent, I do pretend to know for certain what motivated the conservative justices to say this stuff.  Or at least what motivated Scalia.  He just enjoys cake.  It’s his favorite dessert.  Despite all those calories.  Especially when he has the cake and eats it too.

Kennedy will join the majority’s ruling only in its bottom line: the ACA survives in its current interpretation.  He’ll write a concurring opinion explaining that this is a necessary outcome, in order to avoid so offending the sovereign dignity of 36 states that, in self-defense, they would enter into a military treaty with Russia and attack Washington using an allied force comprised of the Armed Forces of the Russian Federation and the states’ national guard units.  Which itself would violate the Constitution’s design because it obviously would have the effect of coercing the states into increasing their own military budgets significantly.

But Kennedy’s concurrence will be a sideshow.

Laughter.  Applause.  Curtain.


*Typo-corrected to reflect the day that the post was posted (Thursday), rather than the day when I began writing it, which was Wednesday, the day of the argument. The post also has been edited slightly (and typo-corrected elsewhere) for clarity.

The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.


UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

The Confidence Fairy v. John Roberts (circa Apr. 2, 2014)

UPDATE: Wow. That tree limb I walked far out onto in my post below turned out to be sturdy after all.  A postscript is added below.

Update posted 10/9 at 10:45 p.m.


There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo424 U. S. 1, 26-27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24-25).

McCutcheon v. FEC, Chief Justice John Roberts, Apr. 2, 2014

Thus did the Supreme Court hold, finally and unequivocally, that the right to vote is a fundamental one guaranteed to American citizens who have attained the age of 18, as prescribed in the Twenty-sixth Amendment.

Which is nice, because although the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth amendments to the Constitution refer to “the right” of citizens “to vote,” and appear to presume that that right is one conferred by the Constitution rather than by, say, your county’s elections commission or even your state’s legislature, Justice Scalia began claiming well more than a decade ago that no such constitutional right exists, because, he says, “we” (meaning a majority of justices in a single case) have never pronounced the franchise a constitutional right.  Scalia first asserted this publicly in late 2002, during argument in Bush v. Gore, and has reiterated it occasionally through the years in speeches and interviews.  His effort bore fresh fruit in June 2013, in a case called Shelby County, Ala. v. Holder, when he and four of his colleagues formally adopted that pronouncement as a prerequisite to their voiding a key section of the Voting Rights Act in that opinion.  See, longstanding Supreme Court jurisprudence holds that under the Fourteenth and Fifteenth amendments, states can’t infringe upon the constitutional rights of individuals—at least if the Supreme Court has pronounced the constitutional right at issue a “fundamental” one—unless the infringement passes a rigorous test known as “strict scrutiny.”

The beauties of “strict scrutiny” scrutiny are that the infringement must serve a compelling governmental interest and must be as narrowly tailored so as to infringe no further than necessary to accomplish that purpose.  And the government bears the burden of identifying a particularized harm and a compelling governmental interest in addressing it, and in establishing that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest. Normally—i.e., at least until now—that has required the state to provide, in response to a court challenge, some actual evidence of a particularized harm, as well as a compelling governmental interest in addressing that, and show that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest.

Not all constitutional rights are “fundamental.”  Cornell University’s Legal Information Institute explains:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment.  These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process.  Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional.  Examples of fundamental rights not specifically listed in the Constitution include the right to marry and the right to privacy, which includes a right to contraception and the right to interstate travel.

That’s a bit out-of-date, of course, because these days a fundamental right is one that Justice Kennedy says is one, and Kennedy has repeatedly made clear that he believes that states have a constitutional right to violate individuals’ constitutional rights, including Fourteenth Amendment equal protection rights, since states are people, my friend, although there are certain exceptions to that, such as, well, state-law restrictions on campaign financing.

Rights that the Supreme Court has not pronounced fundamental may be infringed if the government has a “legitimate governmental interest” in furthering; i.e., if there is a “rational basis” for the infringement.  And it is the statute’s or policy’s challenger who bears the burden of showing the absence of any rational basis.  Good luck.  That explains, somewhat, what happened in Crawford, which enunciated a sort of middle-between-rational-basis-and-strict-scrutiny standard, and presumptively kept the burden of proof on the challengers.  But Kennedy has now said, by signing onto the opinion in McCutcheon written by Roberts—who has changed his mind since he wrote that opinion in Shelby County in June 2013—that the franchise is, after all, a constitutional right accorded to human individuals.  It’s a basic right—one to which there is no right more basic.  It is, in other words, at least presumably, a fundamental right.  And infringements of that right are subject to strict scrutiny.

Which means that the states that have enacted voter ID laws that will disenfranchise citizens within that state, at least in the upcoming election because of the chaos created by (very) late court orders—say, court orders issued only a few weeks before the November election, lifting lower-court injunctions that had barred enforcement of the statute in that election—must, in light of McCutcheon, meet the burdens of strict-scrutiny analysis.

Or they would, if only the challengers—including the ones currently challenging Wisconsin’s voter ID law, in a case called Frank v. Walkerwould this point out: McCutcheon, as well as Citizens United v. FEC, the Kennedy-authored opinion which McCutcheon parleyed, both were issued after Crawford v. Marion County, Ind.

Crawford is the 2008 Supreme Court opinion upon which these states—and exactly half the members of the Seventh Circuit Court of Appeals, the federal appellate court for Illinois, Indiana and Wisconsin—base their claim that voter ID statutes pass constitutional muster.  At issue in Frank is the constitutionality of the Wisconsin voter ID law that Gov. Scott Walker pushed through the state’s legislature roughly three minutes after he and the newly-elected Republican legislative majorities were sworn into office in January 2011.

Monday’s opinion in Frank was issued by the three judge appellate panel originally assigned to the case, and was the culmination of an unusual month-long procedural odyssey that included an oral argument to that panel on Sept. 12 and a three-paragraph emergency order issued by that panel late that day dissolving a stay of enforcement of the statute that was put in place several months earlier by a federal trial judge in Madison.  The order said that a full opinion would be forthcoming.  But before that opinion came forth, the statute’s challengers filed what’s known as an en banc petition—a petition asking that the panel’s order be dissolved and that that appellate court’s full membership of 10 judges hear the case.  That petition was denied on Sept. 30, on an even-split vote. Last Thursday, the statute’s challengers filed an emergency petition with the Supreme Court requesting a stay of the appellate court’s order lifting the stay.

The identified author of Monday’s opinion is a Reagan appointee and Federalist Society leading light who reportedly was recommended to Reagan White House Counsel Edwin Meese by Antonin Scalia. His two concurring panel colleagues areGeorge W. Bush appointees.  Walker’s in a very close reelection bid—a bid in which the polls following the final ruling by the full Seventh Circuit Court late last month began showing him pulling ahead.  The “likely voter” pool now is limited to people who already have a statutorily-approved photo ID or the documents necessary to obtain one.  No one born in a rural home in Mississippi during the Great Depression need apply for a ballot.  Especially if that person is, say, black and no longer drives or never did.

Nor travels to Canada.  Which not all Wisconsinites do–the state’s proximity to the border notwithstanding.  Although that surely is what the opinion’s author had in mind when he noted in the opinion that a special state-issued photo ID or a passport is needed, to travel to Canada and return to the United States. (He also might have had in mind the need to rush the opinion out in light of the challengers’ Supreme Court filing of that emergency petition for stay of the ruling last Thursday, although that’s just a guess.) But in case the reference in his opinion to the need for a state- or federal-government-issued-photo-ID-to-visit-Canada point doesn’t nail it for his side, that judge also said you need a state-issued photo ID to board an airplane.

Which you don’t, in this country, although many elderly people born in the rural South and now living in Wisconsin are known to vacation regularly in Israel, so maybe that’s what he has in mind.  He also wrote that you need a state-issued photo ID to pick up a pharmaceutical prescription at your neighborhood pharmacy, which also is not accurate, although you probably do need some form of ID in order to pick up a prescription for narcotic pain killers and certain psychotropic drugs.

I’ll refrain from jokes about which of the latter this judge uses, and whether he needs a change in medication, since mental illness is not funny.

To me, the opinion has the feel of desperation to justify its result, and although it seems throughout most of it to be leading inexorably toward one particular justification—the one that the credited author advanced at oral argument, if a Milwaukee Journal Sentinel reporter’s account is accurate (I haven not read the argument transcript)—it ultimately rests for its justification on another, somewhat contradictory one. In his report on the argument, published online shortly after the argument’s conclusion, Journal Sentinel reporter Patrick Marley quoted the Scalia-protégé judge as saying, “He took evidence and found the Supreme Court was wrong!”  The “He” is District Judge Lynn Adelman, a liberal Clinton appointee and the trial judge who had issued the injunction.  The exclamation mark is mine; I added it.  The problem is that Crawford did not find voter ID statutes constitutional irrespective of the evidence presented to a trial court showing a resulting disenfranchisement of citizens qualified to vote.  Three justices—Scalia, Thomas and Alito—in a concurring opinion written by Scalia, urged that result, but the remaining justices, including the majority opinion’s author, explicitly rejected it.

Okay, so this federal appellate judge of nearly three-decades’ duration, this a leading intellectual light of the Conservative Legal Movement, thinks a largely evidence-based Supreme Court ruling is a categorical law-based preclusion of later evidence-based trials invoking the same legal issues.  We’ll take his word for that.  (Actually, I do.)

But apparently sometime in the hours after the Sept. 12 oral argument, the Scalia protégé’s two Republican panel members pointed that out.  Late that day, the panel issued an emergency three-paragraph order lifting the stay and allowing the voter ID law to be implemented for the November election. But the order relied entirely upon a fact.  A new fact, in fact—one that occurred after Adelman had issued his stay: The Republican-controlled Wisconsin Supreme Court, in a ruling on July 31, 2014, in another case, Milwaukee Branch of NAACP v. Walker,* had effectively altered the statute to require that the state assist people, financially and logistically, to obtain the necessary documentation and the state ID. This could not be accomplished by November, but, in what appears to be in direct contravention of a 2004 U.S. Supreme Court opinion, Purcell v. Gonzalez, that prohibits major changes to voter registration and voting requirements and procedures shortly before an election, the federal appellate panel lifted the stay.

That order did not mention Purcell nor the issue of shortness of time.  Crawford must be rigidly interpreted rigidly, see, but Purcell need not be interpreted at all, or even mentioned.  But the full opinion issued Monday, of necessity, did.  The emergency order had been roundly pilloried for casually lifting the stay without addressing the issue of the proximity to the November election, and the challenger’s emergency petition to the Supreme Court of course dealt at length with this issue.  The panel’s answer: Forget that legal challenges to the statute have been ongoing almost since the statute was enacted in 2011.  And forget that the Wisconsin Supreme Court had effectively amended the statute in July, less than four months before the election, to require that the state take certain actions that could not even conceivably be completed before the election. The statute was enacted more than three years ago, for heaven’s sake!  That was plenty of time to “scrounge”—the Scalia protégé’s word; seriously—up out-of-state or foreign birth certificates (including the money to pay for them) and the ride over to the nearest DMV.

Sometimes, it takes much less time than three years to scrounge up something you really need, or really want.  A mere four weeks after floating that “He took evidence and found the Supreme Court was wrong!” trial balloon, and after seeming in paragraph after paragraph to revive it in the final opinion, this judge (apparently with assistance from his panel colleagues) was able to scrounge up a new excuse: what matters is voter confidence in the integrity of elections.  Or what my idol Paul Krugman would call … the Confidence Fairy.

Sure, there’s no actual evidence of voter-impersonation fraud in Wisconsin.  But some Wisconsin citizens believe there is rampant voter-impersonation fraud in Wisconsin.  And that belief undermines their confidence in the integrity of the electoral process, and might dissuade them from voting.

But McCutcheon holds expressly that belief alone cannot justify upholding the statute that infringes upon political speech.  Which is what McCutcheon says voting is. McCutcheon pancakes what formerly had been two separate, and separately protected, concepts: actual corruption and the appearance of corruption, both of which the Court had held throughout the preceding 40 years or so justify statutory restrictions on campaign donations. McCutcheon holds that only actual corruption can create the appearance of it.  A Supreme Court ruling that nonetheless permits state voter ID laws to infringe upon the right to vote, absent a showing by the state that voter-impersonation fraud exists and objectively—i.e., actually—undermines the integrity of elections, would be beyond-the-pale partisan manipulation by a bare majority of the Court.  Which is not to say that that’s not a possibility. It is a possibility.  But I’ll come close to very edge of the tree limb I’m on and predict that the Court will stay the Wisconsin statute until after the November election.  Luckily, my healthcare insurance policy covers orthopedic surgery to repair broken bones.

Crawford’s six-justice majority noted that the State of Indiana had failed to produce evidence of voter-impersonation fraud, and no one (to my knowledge) has disputed the accuracy of the Court’s claim. That’s probably because apparently no evidence existed.  The outcome in Crawford relied instead upon a claim the unfounded belief among some voters that voter-impersonation fraud is rampant is itself the justification for upholding the voter ID statutes, because these people lose faith in the legitimacy of the voting process and consequently may decide not to vote.  The state has a legitimate interest in encouraging voting.  Ergo, the belief itself sufficed as justification for the Court to uphold the statute.  In 2008, the Supreme Court had not yet pronounced the right a fundamental constitutional right.

Now, six years after Crawford, there are, according to an apparently thorough recent research, exactly 31 documented instances of voter-impersonation fraud.  In other words, for Wisconsin, North Carolina, and other Tea Party-captured state governments, it’s the Confidence Fairy or bust.  And McCutcheon, at least taken at face value, indicates a bust.

McCutcheon does not clarify whether the right to vote is a basic constitutional right independent of the First Amendment’s speech clause or instead is a basic constitutional right emanating from the First Amendment’s speech clause.  But that doesn’t matter. Voting is speech.  Y’know, just like giving a huge donation to a party, candidate or Super PAC is speech.  The latter is speech of such importance in a democracy that, McCutcheon actually says, the speaker—the donor—must be considered a “constituent” of the officeholder once he or she wins the election, irrespective of how far from that new or reelected member of Congress’s state or district the donor lives.  (Seriously; McCutcheon actually says that.)  And if some people are less likely to vote if they lack confidence that in the integrity of the political process and the political system—that is, if they decide not to vote because they themselves can’t afford to buy the status of constituent from even their own senators or House representatives, much less from ones representing states and congressional districts where neither their main home nor their vacation home is located—so be it. Speech is speech.  And this is a democracy.

McCutcheon, it certainly seems to me, killed the Confidence Fairy. A war veteran, it deserves a decent burial at Arlington National Cemetery.

And Democrats, especially those of us who think of ourselves as constituents of our own members of Congress without first purchasing that status, and have been rapidly losing confidence in the integrity of elections, will attend the funeral. But first there must be a death certificate issued.

*Name of case, and specific date of decision, added. 10/11


POSTSCRIPT:  The order issued tonight by the Supreme Court reads in full:

The application to vacate the September 12, 2014 order of the United States Court of Appeals for the Seventh Circuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers); some internal quotation marks omitted). Under that test, the application in this case should be denied.

Yes, under that test, the application in this case should have been denied.  But there’s a new test now: This Court may vacate a stay entered by a court of appeals that stayed a stay entered by a lower court. Frank v. Walker, on application to vacate stay, No. 14A352 (Oct. 9, 2014).

What an asinine comparison.  The appellate-court stay in the Planned Parenthood case served the purpose of preserving the status quo in order to prevent irreparable injury from implementation of the statute.  In this case, Frank v. Walker, the appellate-court stay was of a trial-court stay whose purpose was to prevent irreparable injury from implementation of the statute.  The trivialization, by that trio of justices, of the right of the franchise, and of the outcome of the election itself, is disorientingly weird.

Libertarian? Or Fascist-Light?

The shooting death by police of Ferguson, MO teenager Michael Brown, and what has happened in the aftermath, has been blanketing the news for the past few days. It’s a story about race, but it’s also become a story about the power of the state and how it’s wielded, and against whom.

So my question is this: Where are the libertarians?

Why aren’t libertarians talking about Ferguson?, Paul Waldman, Plum Line, Washington Post, yesterday

The answer to the question that the title to that post asks is: they are. Libertarians are talking about Ferguson.Waldman’s question addresses a linguistics problem, a misappropriation of a particular ideological term, “libertarian,” by those who ascribe to a narrowly prescriptive ideology that adopts extreme economic libertarianism and certain aspects of fascism.

It is a curious brand of fascism that is peculiarly American, in that it artificially distinguishes between federal powers and state and local ones. A veritable foundation of this ideology formally or tacitly authorizes the use of state and local government police powers—by police, prosecutors, judges, prison guards–to engage in wholesale violations of American constitutional and international human rights. Federal prosecutors and federal judges engage in abuses, including on presumably-rare occasions of actual illegality, but now, finally, at least there’s the possibility of actual scrutiny of federal prosecutorial excess. There remains no working mechanism by which federal or state judges will be investigated for actual illegality in relation to their judicial office, unless the conduct involves an overt monetary bribe or express monetary extortion; judges themselves operate within a statutory system whose very essence is cover-up by their colleagues, and every attempt, including by members of Congress, Republican and Democrat, to change this statutory sham vis-a-vis federal judges is batted down with cries from several Supreme Court justices, including the two Clinton appointees, about judicial independence. (Freedom! Liberty! Judicial Independence!)  As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct and, well, everything else.  And wouldn’t be forced to do that.

About a month ago, Simon Lazarus of the Constitutional Accountability Center wrote an article in The New Republic titled “John Roberts’ Supreme Court is the Most Meddlesome in History” and subtitled “How radical libertarianism is reshaping the bench.” I remember thinking when I saw that article that the primary title is correct but the subtitle is not. Certainly there are some radical libertarians—those who want to eliminate virtually all taxes, federal and state, an virtually all government regulations and civil and criminal prohibitions, federal and state, and who also are, as Waldman puts it, talking about Ferguson. And who want to dismantle the prison-industrial complex. But best as I can tell, they’re not Republicans, and they’re certainly not federal judges, much less federal Supreme Court justices. Accepting their pose as libertarians, without the modifying adjective “economic,” is buying their marketing campaign.

Freedom! Liberty! Libertarianism! The new and improved variety, marketed as the late 18th century strain. Back from the future. I guess.

What most of this crowd actually is is sort of classic-fascist-light, not libertarian. By which I don’t mean that they’re Nazis; Nazism was (and is) only one brand of fascism. I mean fascism more along the lines of the Benito Mussolini or Francisco Franco variety—a pairing of a muscular state police force left to its own (and the dictator’s) devices, and moneyed interests whose support the dictator an his party needed. Modern U.S. neo-federalism, a.k.a. “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights—is libertarianism only in a George-Orwell-comes-to-Madison-Avenue sense, but it underpins much of Tea Party/Supreme Court libertarianism, if only ostensibly.

One of the most stunning sentences I’ve ever read in a Supreme Court opinion, a sentence that has not received nearly the amount of attention in the general news media or by Democrats that it deserves, is John Roberts’ express statement in the majority opinion in McCutcheon v. FEC, this year’s Citizens United sequel, that extremely wealthy campaign donors become “constituents”–constituents, in the literal election-law, voter-ID sense–of members of Congress not by living in the senator’s state or in the representative’s district but instead by buying access and the right to author proposed legislation. Ordinary folk are constituents only of the elected officials in whose voting jurisdiction they have their primary (for most people, their only) residence, but the Koch brothers are the constituents not just of Kansas’s senators and Wichita’s congressional representative but also of any other senators and congressional representatives that they choose to co-opt as their legislative proxy, for a fee. This, Roberts said, is at the heart of our democracy.

Which indeed it now is, formally and officially, as per the Supreme Court. It’s at the very heart and soul of our democracy these days–our democracy, alone among democracies, since ours is the only democracy in which this flavor of freedom!, liberty!, is packaged as libertarianism. It’s a specialty flavor that would be recognized by 1930s Europeans for the albeit-milder iteration of the political ideology that it really is. And that is recognized, I’d bet, by most close observers of the Supreme Court’s state-courts’-and-state-prosecutors’-and-local-police-officers’-and-state-and-local-prison-guards’-rights-to-violate-individuals’-constitutional-rights-because-the-Constitution’s-structure-requires-it jurisprudence.

This ideology is libertarian only as some characters in Lewis Carroll’s novels, or the Koch brothers, would define that word.  Or as five current Supreme Court justices do, as suits their focused interest of the moment.  Or of the Conservative Legal Movement era, which has in fact been very focused for more than three decades now.  So any moment will do.

Pick your moment.  Any moment.  They sure do.  Just call what you’re doing anything but what it actually is.

First-Reaction Thoughts About Hobby Lobby and Harris v. Quinn

I haven’t read the opinions, concurrence, or dissents in either Hobby Lobby or Harris v. Quinn, so these comments are based on news summaries and quick commentaries by others.  But the biggest surprise in Hobby Lobby, I think, is the express approval, in the opinion and in Kennedy’s concurrence, of HHS’s on-the-fly setup devised in (I think) 2012 as a workaround to allow nonprofit religious organizations (e.g., Catholic colleges) to avoid directly providing the insurance coverage while still enabling the employees to receive the coverage.

The 5-4 outcome of the case apparently relied on this; it was not dictum. Kennedy’ concurrence makes that clear.  (Which is itself a surprise, given Kennedy’s virulent dissent two years ago to Roberts’ opinion upholding much of the ACA itself.)

This is really important, not just as it applies to the contraception issue but also because the HHS-devised workaround has, of course, been attacked by the right as exceeding the authority of the ACA.  As have the other several HHS-promulgated tweaks to the substance of the statute and to its implementation (for example, delays in requiring certain mandates). The Hobby Lobby opinion effectively accepts as legally permissible these substantive and timing HHS-created modifications by HHS to the ACA.

The other thing that strikes me is that, although one commentator writing a few minutes after the release of the opinion thinks otherwise, the opinion does, I think, open the door to diminished corporate-veil protections.

The opinion did not address the First Amendment free-exercise-of-religion clause.  Instead, it interpreted a statute, the Religious Freedom Restoration ACT (RFRA) as protecting closely held for-profit corporations.  The statute provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The opinion holds that corporations are “persons” within the meaning of the statute.

The commentator–one of the SCOTUSblog folks writing on their live blog as the Court was in session this morning; I can’t remember who, though–pointed out in answer to a question that the opinion interprets a federal statute and that corporate-structure/corporate-veil statutes are state statutes. The opinion doesn’t alter those state statutes.

But it does, I would think, enable and even invite other incursions through the corporate veil, via federal or state statute or state-court interpretation of rights of potential litigants.

The opinion also apparently tacitly acknowledges, without actually deciding, that First Amendment rights of corporations are solely derivative of their owners’ First Amendment rights, and therefore cannot be treated as though delegated to the personal choices of the CEO.  Thus, the ruling in Hobby Lobby is limited to very-closely-held for-profit corporations.  This obviously is a concession to the dismay expressed by many, many people (certainly myself included, here at AB) at Citizens United’s cavalier delegation of individual publicly-held-corporate shareholders’ First Amendment speech rights to the corporation’s CEO for purposes of donating corporate money to political campaigns. Corporate shareholders, including pension funds, are now entitled to sue to block corporate political donations.

Although Alito wrote the majority opinion in both Hobby Lobby and the other case decided today, Harris v. Quinn, neither opinion reflects what he had hoped for.  Harris, like Hobby Lobby, was decided on as narrow grounds as possible–on grounds that avoid constitutional interpretation and that are decided on other grounds limited in scope to, really, the specific facts in the case.

In my post yesterday on Harris, I suggested the possibility (albeit remote, I thought) that Harris could follow somewhat in the footsteps of an opinion in a case called Bond v. United States, decided on June 2.

The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent.  But instead, somewhere along the way after the case was argued and John Roberts had assigned himself to write the opinion, one of the five Republicans–I suspect that it was Roberts himself–had a change of heart. Roberts’s opinion has vestiges of the original draft, but decides the case on other (liberal, actually) grounds.  What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion.  Hooray.

In Harris, the Conservative-movement cause was not neo-federalism but instead the decimation of labor unions, especially of public-employee ones.  The mechanism was to be the First Amendment speech clause, and Alito, who openly coveted the assignment to write the opinion–earlier, in another case, he said he wanted to overrule a 1977 Court opinion, Abood v. Detroit Board of Education, that was the foundation of the relevant aspect of current labor law–had indicated at the argument in January that he thinks the very existence of public-employee unions violate the First Amendment.

But the best-laid plans went somewhat awry again, and this time apparently it was Scalia (of all people) who threw the first wrench. Scalia reportedly made it known at the argument that the First Amendment speech challenge to the “agency fee” concept in union representation of non-union employees in “union shops”  just doesn’t make sense, in his opinion, even if the union is a public-employee one.

My guess is that Scalia originally agreed only with the bare outcome, but on the limited grounds on which Alito’s opinion ultimately rests: that under the specific Illinois law at issue, the 1977 opinion that approved the “agency fees” didn’t apply to the employees at issue in Harris–home healthcare employees paid by the state’s Medicaid system–because they are employees partially of the state and partially of the customer. My guess also is that somewhere along the way, Alito lost another vote for what was to be his four-justice plurality opinion; one of the four jumped ship and joined Scalia. Alito then was compelled to effectively adopt Scalia’s concurrence as the bottom line–the ruling–in his opinion, but was not compelled to remove the reams of dictum from it that Kagan, in her dissent reportedly mocks at length.*

If my speculation is correct, the substance of the Harris opinion bearing Alito’s name was dictated, literally, by Scalia. In any event, this wasn’t quite the day of victory for Alito & Friends that they had envisioned.  Really, it wasn’t even close to that.


*Typo in sentence corrected, 7/1 at 1:34 p.m. 

UPDATE: Most of what I wrote in this post based on the early summaries and analyses of the opinions, but before I had read the opinions themselves, holds up surprisingly well, I think.  I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.

I hope to write an update post later today, though. 7/1 at 1:37 p.m.