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

Justice Scalia Says Rightwing Economic Ideology is Mandated By the Constitution. Really.

Scalia regularly bars video or voice recordings of his off-the-bench speeches, and in at least one fairly recent instance, the details of which I can’t recall, he employed a member of the U.S. Marshals Service to enforce his policy.  If I recall correctly, a member of his security detail confiscated a reporter’s or law student’s audio recorder as the audience was leaving the room after the speech; something like that, anyway.

But recently he spoke publicly to a group somewhere in Italy, the speech was recorded, and National Law Journal reporter Michelle Olsen obtained and posted access to a web page that, the How Appealing blog reported, “was then providing access to download the mp3 audio of Justice Scalia’s remarks.”  The remainder of that How Appealing post, from yesterday, relates what happened next:

Yesterday, however, Michelle noted that the link to the audio of Justice Scalia’s remarks at that web page had disappeared. Nevertheless, the audio file itself remained available for download from the server for those who possessed the original download link.

Today, Michelle has not only posted the audio of Justice Scalia’s remarks to SoundCloud, but she has also located online another place where the audio of Justice Scalia’s remarks remains available for download (70.7 MB mp3 audio file).

Today, How Appealing follows up with this post:

“Scalia on the Judiciary and Economic Liberty”: Josh Blackman has this post today at his blog.

Blackman, an assistant professor of law at South Texas College of Law in Houston, begins his post by expressing appreciation to Olsen “for retrieving Justice Scalia’s speech in Italy from a new ring of Dante’s inferno (where off-the-record recordings of Justice’s speech wither away in limbo).”  He then quotes from the part of the speech that he listened to; he says he’ll post further after listening to the remainder.

A two-paragraph excerpt and a couple of additional quotes that Blackman adds are, in my opinion, jaw-dropping for their bald assertion that the Constitution mandates the particular economic ideology that Scalia ascribes to and therefore prohibits many (most?) of the economics-related laws enacted by Congress.

One added quote has Scalia saying that John Locke was the “guiding light of American independence.” Blackman then writes:

Scalia notes that the structural provisions of the Constitution are most fundamental to protecting economic liberty. He mentions the doctrine of enumerated powers, the Due Process Clause, the takings clause, and the contracts clause.

“Our Constitution provides property owners with relatively few substantive rights. Almost all of our private rights in the Constitution are in the Bill of Rights, which was an afterthought  . . . . Judges cannot enact atextual rights to enact their preferred policies.”*

The rightwing justices are big these days on attributing much of their peculiar brand of constitutional jurisprudence to what they say is the “structure” of the Constitution–usually things that are not stated expressly in the Constitution but that conservatives nonetheless claim are inherent in the document.  Especially extreme and sometimes bizarre declarations of states’ rights, which, according to this crowd, oddly enough or conveniently enough regularly trumps individual rights, including such individual rights as due process and habeas corpus, and narrower rights such as the right to the assistance of counsel, that underpin the more general ones.

Or, likely, the supposed structure of the Constitution that, in the absence of a specific useful provision, will suffice sometime in the next four weeks to justify voiding a key provision of the Voting Rights Act.  The Fifth Amendment doesn’t expressly require due process for states, as it does for “persons,” and has never before been held to incorporate within it “an equal protection component” similar to the one in the Fourteenth Amendment protecting “any person,” as it has for “any person.”  But, absent a formal pronouncement by the Court that states and voting districts within states are people too, the Constitution’s structure will suffice, if the oral argument this spring in the current Voting Rights case is an indication.

But I digress.  What we have right  now, from one of the mouth of one of the five horses, is an express adoption of an extreme laissez faire economics policy agenda in the ostensible name of the Constitution.  I hope that Democratic congressional candidates make this known when they address their constituents at Town Hall meetings and are asked about economic-policy issues.  We now have a Supreme Court justice who has publicly vowed to use his official position to undermine economic policy that he claims the Founding Fathers–followers of John Locke all, he says–would disapprove.

It’s struck me in recent weeks that statements by Paul Ryan and Mitch McConnell and other congressional wingnuts acknowledge that the Republicans are attempting to stage what amounts to a non-military coup.  They lost the popular vote for the House, and soundly lost the White House and the Senate, last fall, yet they will bring down the economy of the United States and will routinely refuse to confirm the president’s judicial and agency-head appointments, and will disallow funding for statutorily mandated agencies and programs, because–as Ryan said a week or two ago–they believe that the Republican policy agenda is better policy.

And now we have a Supreme Court justice announcing, if quietly, that he will try to use the Court to do the same.**  In the name of John Locke, no less.

*Indent-format-corrected to show boundary of quote.

**Sentence typo-corrected.

 

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What Obligations Do Mainstream Media Editors (e.g., The Washington Post’s) Have to Bar Their Regular Political Columnists (e.g., Michael Gerson) From Stating Bald Misrepresentations of Fact?

Compare:

When people realize that their most personal, sensitive, intimate, private health-care information is in the hands of the IRS that’s been willing to use people’s tax information against political opponents of this administration, then people have pause and they pull back in horror.

— Michele Bachmann, on ABC News/Yahoo, May 20 (H/T Glenn Kessler, in a spot-on takedown today)

And:

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Pro-business decisions

New York Times points us to a new study on the Robert’s Supreme Court decisions and ‘pro-business’.

NOT long after 10 a.m. on March 27, a restless audience waited for the Supreme Court to hear arguments in the second of two historic cases involving same-sex marriage. First, however, Justice Antonin Scalia attended to another matter. He announced that the court was throwing out an antitrust class action that subscribers brought against Comcast, the nation’s largest cable company.

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Anthony Kennedy and Antonin Scalia Say the Confederacy Won the Civil War and the Purpose of the Reconstruction Amendments Was to Reinforce Rather Than Diminish State Sovereignty. (Except on Affirmative Action, the Second Amendment, and Real Estate Property “Takings.”)

Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”
A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act

Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language.  It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 1, but not Section 5, also, as it happens, is at issue in the other culture-wars blockbuster Supreme Court case this term, Fisher v. The University of Texas, a.k.a., the big affirmative-action-in-state-university-admissions-policy case.

John Roberts will write the 5-4 opinions in both cases.  In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2.  It said (and the 5-4 Court majority will confirm in Fisher) still says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns.  Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns.  And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law.  Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.

These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term.  Christmas will come in May and June this year.  Or at least Santa Claus will.

Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list.  Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list.  That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.

Who knew?  Other than the Republican far-right, that is?

Not me, and probably not you.  You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states.  But, then again, you also probably learned that the Confederacy lost the Civil War.  Even those of you who went to upscale suburban schools or to fancy private ones.  Well, those of you who took that class pre-1980s, anyway.  But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.

Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014.  Only an unexpected vacancy on the Court will do that.

Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.  Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County.  Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue.  And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.

But these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them apply only to extraordinary procedures enacted by Congress. They do not apply to extraordinary procedures in the Supreme Court.  Such as the one in which the Reconstruction Amendments are rewritten, right along with Civil War and Reconstruction-era history.
I do have a suggestion for Texas, though, just as I have one for Alabama, since, when Texas, like Alabama, wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.
Again here, I suggest a statue–this one honoring all the white Texas high school seniors who narrowly missed the cut to gain admission to their state’s flagship university since the current state statute and its predecessor statute were enacted.

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John Roberts’ Curious Voting-Statistics Sophism Misconstrues The Census Report’s Statistics by Failing to Consider Key Statistical Deviation Facts and Fails To Consider WHY Massachusetts Blacks Might Be Voting In Lower Percentages Than Mississippi Blacks Are, Even IF They Are. [UPDATED]

In a blog post titled “In Voting Rights Arguments, Chief Justice Misconstrued Census Data” on NPR’s website, veteran NPR Supreme Court correspondent Nina Totenberg deconstructs a sophism offered by John Roberts at the oral argument on Wednesday on the continued constitutionality of a key section of the Voting Rights Act of 1965, which Congress has extended several times, the last time, overwhelmingly, in 2006.  Totenberg writes:

At the voting rights argument in the Supreme Court on Wednesday, Chief Justice John Roberts tore into Solicitor General Donald Verrilli, grilling him on his knowledge of voting statistics.
The point the chief justice was trying to make was that Massachusetts, which is not covered by the preclearance section of the Voting Rights Act, has a far worse record in black voter registration and turnout than Mississippi, which is covered by Section 5 of the act.

But a close look at census statistics indicates the chief justice was wrong, or at least that he did not look at the totality of the numbers.

Totenberg goes on to say that the statistics Roberts used were taken from a lower-court dissenting opinion, statistics that in turn were taken from a 2010 census report.  “But,” Totenberg says, “upon close examination, the numbers are less than reliable, according to the Census Bureau itself.”  She explains:

Here’s the deal. The Census Bureau does voting surveys to look at voting patterns nationwide, but the survey is based on a very small sample. Most recently, in 2010, the survey looked at 94,208 voters nationwide. Break that up into roughly proportional samples in each state, Census officials say, and it is really not possible to compare states because those with relatively low minority populations have a much higher margin of error.

The number of black citizens eligible to vote in Massachusetts is 236,000, while it is 721,000 in Mississippi, more than three times that number. Therefore, according to Census officials, when looking at the estimated turnout rate in Massachusetts, the voting percentage for African-Americans at first blush is estimated at 39.3 percent. But the margin of error is 11.5 percentage points, meaning that the black voter turnout actually could be as high as 50.8 percent (or, conversely, as low as 27.8 percent). 


Now, look at Mississippi, where black turnout is listed at 48.7 percent. But because of the large size of the African-American population that was sampled, the margin of error is only 5.4 percentage points.

That means that factoring in the margin of error, the black turnout rate in Mississippi could be as high as 54.1 percent, or as low as 43.3 percent.

So, if you factor in the margins of error at their extremes — with Mississippi at the low end and Massachusetts at the high end — Mississippi could have had a black voter turnout rate that was 7.5 percentage points lower than Massachusetts.

Bottom line, as Census officials told me, these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states.

Yep, John Roberts, it turns out, is no statistician.  But neither is he, well, a social scientist. Or even a moderately sharp observer of politics.  At least, not of Massachusetts politics. Where, y’know, Democrats usually win with lopsided victories in, say, House races in predominantly black Congressional and state-legislative districts; where the outcome of the state’s electoral college presence in presidential elections has not been in doubt for decades; and where neither Ted Kennedy’s nor John Kerry’s reelection was even remotely in doubt since, I guess, the 1994 Ted Kennedy/Mitt Romney campaign. Totenberg’s report makes clear that voting in the hotly-contested statewide race to replace Kennedy, who died in office–a special election in late 2009–was not part of the census report, which measures voting only in national elections.  

So, might not the question of what’s at stake in a particular election matter, even when you’re a Supreme Court justice who’s spent decades wanting to see the Voting Rights Act’s demise and will not be fussy about the grounds you state for your decision?  I mean, just to make it look sorta rational?

Most of the media attention concerning that oral argument focused on what were truly shocking comments by Scalia in which he said both that voting rights are a racial entitlement and, equally stunningly, although gaining less attention, that the motive of members of Congress in voting to “perpetuate” that “racial entitlement” in extending the Voting Rights Act–political reasons, he said–is appropriate reason for the Supreme Court to refuse to give the usual “deference” (here, legalese for benefit of the doubt) to Congress’s legislative decision after weighing extensive evidence, even if the motive was itself not unconstitutional.  

This latter–that the motive of members of Congress, which in this case no one claims was an unconstitutional motive (e.g., a racist motive or a religious-discrimination motive)–purports to give the Court the constitutional authority to reject Congress’s legislative choices–is so obviously bizarre and dangerous that, in this case, it likely won’t garner agreement by any other justice. But that oral argument was the second time in less than a year that Scalia offered this argument, and the first time he did so, he was joined by three other justices.

The case in which this occurred was the ACA (Obamacare) case.  In his dissenting opinion, he claimed that because a majority of the Court was voting to strike down as unconstitutional one section of the statute–the section concerning the consequences to states of refusing to agree to accept the expansion of Medicaid–the Court must strike down the rest of the statute, not because a majority thought the rest of the statute also was unconstitutional (a majority did not), but because a few members of Congress who voted for the statute might not have voted for the statute if that Medicaid-expansion part was not part of it.  The ACA passed the Senate with no votes to spare, see, so, well, I mean, who’s to say that without the Medicaid-expansion part, the statute would have passed at all?!

Rest assured, though, that this, like sooooo many other movement-conservative gimmicks, would be entirely discretionary with the justices, or lower-court judges, case by case.  A budget bill that conservatives favor, and that’s enacted in a close vote, would not be strikeable in its entirely even if it contained some part that a majority of the Court thinks is unconstitutional.  But a budget bill that disfavored by conservatives, and enacted in a close vote, might be strikeable in its entirety if one part is deemed unconstitutional, since ya never know whether it was that log-rolling of the sort that Scalia, Kennedy, Alito and Thomas objected to in the ACA, and that involved the unconstitutional provision, that enabled the passage of the budget bill.

This, by the way, apparently was the bridge-too-far that began Roberts on the road to a change of heart, and change of vote, on the constitutionality of the individual-mandate provision. Reportedly, it really offended and scared him.  But it got the votes of four of the nine justices.

This time around, though–in the Voting Rights Act case–Scalia’s apparently trying only to use this motive-matters argument to strike down a key section of the Act, not the whole thing. Which makes sense, since log-rolling wasn’t the reason for the 2006 reenactment of the law, and, as I said, the law was reenacted by overwhelming votes in each house; 98-0 in the Senate. But luckily for Scalia and friends, among them Roberts this time, there is that census report.  

And Nate Silver hasn’t been asked to analyze it. And he probably won’t be.

—-
UPDATE: OH. WOW.  Politico reported last night, in an article titled Massachusetts official slams chief justice’s comments on Voting Rights Act:

The problem, Massachusetts Secretary of State William Galvin says, is that the data does not back up Roberts’s claim.

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation,” Galvin told POLITICO.

Galvin’s office assumes that Roberts was going off U.S. Census Bureau data, which is one of the only national datasets on voter turnout by race, but they say the 2010 numbers don’t support what Roberts is saying.

“He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks,” Galvin said. “We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.
“We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference,” Galvin said.

So Roberts was gamed by an incompetent or intellectually dishonest lower-court judge, from whose dissenting opinion Roberts took the bait, the hook, the line–and the sinker. It’s fairly commonplace for lower-court judges to misstate or omit key evidence.  Sometimes, it’s because the law clerk they’ve assigned to do their work for them doesn’t bother to actually nail down or verify facts put into briefs, and sometimes it’s just that they know how they want to rule, and just cherry-pick truncated statements of fact to support their chosen conclusion.  And sometimes–and believe me; this is true–they just fabricate a fact out of nowhere.

But, really–the chief justice of the U.S. Supreme Court using a statistic on voting that includes non-citizens as eligible to vote, because he just lifted a surprising statistic from a lower-court judge’s dissenting opinion, without first looking into its plausibility, much less its actual accuracy?

What’s next? The chief justice relying unquestioningly on a Bob Woodward report?

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