Constitutional coup? PA voter ID Judge Simpson is a "pedigree Republican ideologue"

By now you know that Penn. Judge Robert Simpson has put the court stamp of approval on Pennsylvania's game-changer voter ID law.

Now comes newer news about how this rule is being administered. Mike Papantonio puts all of that in context in a conversation with Ed Schultz on Shultz's radio show. (The video is from the studio of Ring of Fire Radio, where Papantonio's side was taped.)

My comments first:

(1) There is no question that this is an ongoing constitutional coup by the Republican party. We watched the Republican governors all last year and their attempted take-over of democratic government in Wisconsin, Michigan and Ohio, among other places.

Read this about the role of the judicial system in legitimizing constitutional coup. This is what that looks like in the U.S.

(2) If the mass of people don't rise up, this becomes "the new normal" — with only one side (Republicans) playing by this "new rule."

Bush v Gore was the time for Americans to stand with democracy, and the people were found wanting. This is the next act in that drama — the next attempt by one side to use the judiciary to recapture the White House.

(3) According to Papantonio, this is the Republican Party's last shot at the crown:

Because of demographic changes, if they don't win here, this could be the death of the Republican party.

You don't have to agree with Papantonio; just consider whether Republicans agree with him. If Republicans think this is their last shot, watch out. They were already dangerous; this makes them dangerous and desperate.

Now here's the interview. I'm starting this at the 3:20 point to get right to Papantonio's response to Ed's three-minute question, "I'm flabbergasted; what's going on?"



Constitutional coup — capturing the organs of state, then using them to pervert the system into permanent one-party rule. If you don't first capture the judiciary, you can't do the coup.

The Republicans have spent 20–30 years capturing the judiciary. (A great discussion of that by Dahlia Lithwick is here.)

Are Republicans ready to pull the trigger nationally? Looks like it to me.

GP

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GOP justice Sandra Day O’Connor: Declining approval for high court a ‘disappointment’

Perhaps it has something to do with her own political party putting the demonization of government at the top of their list for decades.

Former Supreme Court Justice Sandra Day O’Connor called the declining public approval of the high court a “great disappointment” and suggested the ruling in Bush v. Gore may have sparked the public’s loss of faith in the judicial branch.

In the past, when the public is asked about the three branches of government, the court has generally had, the juridical branch has had the highest respect among the three, and now it's about the same for all, and it's all down,” said ,” O’Connor, In an interview aired Sunday on CBS’s “Face the Nation. “So that's a great disappointment to me to see.”

The Republican party sees profit in destroying any and all trust in government, and they've been doing so for decades. Especially at it concerns the courts, it's the Republicans who have been admonished for making repeated threats against judges here and here.

The rhetoric takes its toll.

To O'Connor's credit, she's called out the Republicans before for their anti-court hate rhetoric.  The problem is, we have a party that wants to arm the populace just in case government becomes evil, and then the party turns around and tells the armed populace that government has in fact become evil.

And then we're surprised when their minions respond accordingly. Read the rest of this post...

The Roberts health care reform ruling is no precedent

Not only did the Roberts ruling save healthcare, it has provided endless employment for journalists and legal scholars as they speculate on the 'precedent' set. In the week since, we have been told that the Roberts ruling will stop defunding of planned parenthood, enable states to lower the drinking age and many other projects. And of course we have been told that this is really a victory for the right.

But all this analysis overlooks the rather obvious fact that the far right of the Supreme Court is only going to consider something precedent when it suits their politics. As with 'original intent' (remember that?) the new 'precedent' on the Commerce clause and attaching strings to federal grants is going to prove remarkably flexible. Corporations are people my friend, but not unions.

In their moments of supreme hackery, even the right wing partisan judges recognize what they are. The ruling in Bush vs Gore even has a disclaimer to state that no precedent is set, just in case they might want to reverse the ruling to let a Republican get a recount in the future. Read the rest of this post...

We now know that John Roberts switched his ACA vote; what was he up to?

With CBS News reporting that Chief Justice John Roberts switched his health care vote, I've been looking for a way to get at the implications of that information, and also offer some analysis of the corners of the health care vote in general — for example, the consequences of the new opt-out aspect of Medicaid expansion.

I could not have done a better job than Digby and Joan McCarter did in this excellent episode of Jay Ackroyd's Virtually Speaking last Sunday.

First, the CBS News report, to bring you up to speed (my reparagraphing and emphasis):

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold. "He [Kennedy] was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

There's more in the report, but I'll let you go there for that.

Keep in mind that, as we and others noted earlier, the dissenting opinion calls the concurring opinion "the dissent" quite a number of times. Given that Roberts switched his vote a month ago, that can't have been an accident.

A shot across the bow from the Republican justices, to embarrass (and publicize) Roberts' vote-switch? Speculation, of course, but not unlikely.

Now Digby and Joan McCarter on this and other topics. A brief rundown and comment follows the audio.

This discussion kicks off from the report quoted above. Listen:

A brief rundown of the main sections of this audio:

■ Start — Roberts' vote-switch and analysis.

■ 14:20 — The Medicaid expansion ruling.

■ 27:20 — A particularly clever Culture of Truth summary of the worst of the Sunday bobbleheads for July 1.

■ 35:20 — A pivot from the narrow failure of the Supreme Court to Chris Hayes' notion that all elite institutions have failed. Excellent discussion.

And two comments of my own:

Note how much of what Hayes says reflects badly on our modern love of "meritocracy." In my view, meritocracy fails — not just because it is so easily corrupted (Hayes' point, as well-articulated in the Digby–McCarter discussion) — but because at its heart meritocracy leads to profoundly undemocratic outcomes.

Yes, one "deserves" good according to one's "deserts," one's worthiness. In many arenas, the lazy should have less. But this so easily triggers our post-Renaissance love of punishing the less-hard-working "undeserving" (another reference to Erich Fromm's masterpiece, Escape from Freedom, by the way).

1. Some things in a society should be given because one is a citizen, because one is human and alive, regardless of "worthiness." If only practically, it's bad for the society as a whole to do otherwise. Consider health care, the present discussion point; think smokers and the emergency room. Sometimes punishing the so-called "unworthy" skins all of our hides.

2. The whole notion of tagging others as "unworthy" is itself profoundly arrogant. As Shakespeare observed:

God’s bodykins, man ... Use every man after his desert, and who should ’scape [public] whipping?

Use them after your own honor and dignity. The less they deserve, the more merit is in your bounty.

If you look deep in each heart, which of us is not a petty thief? Public whipping was a common punishment for small-time crime. It's the "cast the first stone" problem. Who will shed an arrogant face long enough to admit our common clay?

Will you stand before your brothers and sisters and say, "I'm more worthy"? I hope to god on earth that's never me.

Thus Digby's good point in the second half of the discussion about liberalism and the great "liberal" dream that everyone should have equal opportunity. To Digby's credit, in my view, she says that (paraphrased) if we don't get good outcomes that way (i.e. that "everybody should have a decent life"), then we should try another way.

She mentions not being "Marxist but" ... which implies to me that European-style socialism, which assigns essential benefits regardless of "merit" — my point above — may be a better way to go.

I hope I haven't mis-characterized her position. I certainly haven't mis-characterized mine.

And I hope you enjoyed this discussion as much as I have. Comment, as always, is welcome.

GP

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Where next for John Roberts and the Supreme Court?

The upholding of the individual mandate is not just a defeat for movement conservatives, the fact that it was Chief Justice Roberts and not Jusice Kennedy who defied them may be a rather bigger "tell."

The Supreme Court has been handing down 5-4 decisions for quite a while. When O'Connor retired, the right thought that they would finally have the reliable partisan vote in their favor that would allow them to overturn Roe vs Wade, gut the civil rights act and a dozen other projects they could never achieve through Congress. Instead the court shifted to the right, but not nearly as much as the GOP wanted, and Kennedy became the swing vote in a series of 5-4 decisions.

Roberts did vote for Citizens United, but he isn't a Scalia or a Renquist. Faced with the choice of delivering for the extreme right, Roberts decided to keep his reputation intact.

That vote is going to have consequences. There are no shades of agreement for movement conservatives, you are either with them 100% or a vile traitor and enemy. Expect the right to denounce Robert's vote as craven, giving in to pressure from the left, then give him the Fox News treatment till they have safely driven him out of their fold. Read the rest of this post...

The "radical" Supreme Court dissent that John Roberts would not sign

This is the start of the other Supreme Court ACA discussion — analysis of the dissent signed by four of the Republican justices.

First, a section of the dissent (pdf; my emphasis and paragraphing throughout):

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid.

That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected burdens on patients, the health-care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend.

Now, early comment by Scott Lemieux at Lawyers, Guns and Money:

The Radicalism (And Hackery) of the Health Care Cases Dissenters

As mentioned below, the four dissenters to today’s health care ruling [pdf] issued an unusual jointly signed opinions of quite remarkable radicalism.

It would have radically re-shaped the constitutional order by not merely ruling the individual mandate as beyond the power of the federal government to regulate interstate commerce, but taken the even more radical step of limiting the federal government’s spending powers by preventing it from expanding Medicaid.

Taken together, this would constitute a radical transformation of the American constitutional order. And because of these defects, the dissenters would have ruled the PPACA “invalid in its entirety.” ...

The argument is that the mandate and the Medicaid expansion are not valid regulations of interstate commerce, but that they are also so essential to a broader regulatory scheme that the entire act must fall. As long as McCulloch v. Maryland remains good law, this argument is transparently wrong.

For legal freaks, this is McCulloch v. Maryland. It establishes Congress's right to make laws that are necessary to exercising its expressed (explicit) powers, creating the notion of implicit powers.

The ACA dissent ties that in knots. By definition (per McCullough), if the mandate is essential to the broader regulatory scheme, it cannot be invalid. You'd have to reverse McCollough to get to that conclusion.

This is why the Republican judges are "radical" — because their "law" isn't at all grounded in actual law, but in bench-legislated outcomes wrapped in fog. Imagine where we'd be with Rule of Law, already in shreds, if Roberts had signed on to that!

This is also why I call them the "Republican judges" — because they are nakedly so.

By the way, I've heard that the dissent refers to the majority opinion as "the dissent" (Updated: Discussed here.). If true, it means that when the present dissent was written, it was indeed the majority. [UPDATE: I'm not alone. Thanks to twitter friend @jordanadambanks for this link.]

Was Roberts voting to restore the appearance of legitimacy to the court that bears his name? I do have my thoughts.

There's much more in the Lemieux piece. Please do click over; there a second half, and a second point, I haven't touched. Plus great praise for Ginsberg.

Let this start the discussion — that dissent deserves all the attention it gets.

[UPDATE: Some phrase tweaks for clarity.]

GP

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Did Justices Roberts and Alito perjure themselves before Congress?

Not that we have Rule of Law or anything — Nixon and Ford fixed that with their corrupt deal, the one that gave the presidency to Ford in exchange for Nixon's sweeping pre-indictment now-and-forever pardon.

How's that for a quid and a quo? I'll take either side of that deal.

But perjury before Congress is against the law, an actual crime. And Supreme Court justices can be removed (I hear).

With that in mind, here's Michael Tomasky at The Daily Beast (my emphasis; h/t Cliff Schecter on Majority.fm):

Count this if you must as my attempt to "intimidate" John Roberts, but I was reading back through his statements about stare decisis at his hearings. What a liar.

Geoffrey Stone of the University of Chicago Law School is one of our leading legal scholars, so let me hand it over to him here for a few grafs, from a piece he wrote for HuffPo that's five years old but rings awfully true as we count down the days until the Supreme Court seems likely to hand down its most striking overturning of a law since the 1935 National Recovery Act decision.

The quote from Geoffrey Stone (again, Chicago Law School; again, my emphasis and some reparagraphing):

John Roberts assured the Senate Judiciary Committee [under oath] that judges must "be bound down by rules and precedents."

Invoking Alexander Hamilton and James Madison, he affirmed that "the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly "unworkable" over time.

But in general, "a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, it is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."

It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law [note, there's that phrase; Alito is right].

Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

After some discussion of the Warren court's rulings, Tomasky concludes:

Roberts--and Alito--simply lied. Balls and strikes. Right. They are politicians in robes, nothing more.

Perjury with an excuse, like a note from Jesus or something.

In right-wing minds, it's Means v Ends all the time, and Ends always comes with a note from Jesus. It's how they roll, why they need right-wing Jesus and his personal, invisible and wholly-imagined blessing.

Consider, when John Mitchell, Nixon's former Attorney General and head of his Committee to Re-elect, was asked at the Watergate hearings (my paraphrase) — You testified that re-electing Nixon was a critical national imperative. You committed all these crimes to re-elect him. Would you kill to re-elect him?

Mitchell's answer — go ahead, guess; remember, he's under oath:

(Long pause) "Senator, you ask a hard question."

The song of the hyper-moral. (And remember, Mitchell was Attorney General.)

So, can a Supreme Court justice be impeached? Here's the answer:

A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.

Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses.

The answer, in other words, is yes; but only in an actual republic. Bananas are on their kleptocratic own.

By the way, when you start typing "can supreme court justices be impeached?" into the google, it prompts you with that very search after can supr is entered. Choice number one.

I must not be the only one who cares.

GP

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Perlstein: Is Obama's "religion of Secular Humanism" this election's viral RW meme?

Yes, you read that right. Seems really stupid doesn't it, that something so ... stupid ... could suck all the air out of an election campaign. Yet that's exactly what happened in 2004, with the swiftboatage of John Kerry. Stupid; and so very effective.

For Perlstein, the Kerry part of the story — the analogy that sets up the Romney prediction — started with a stupid little self-published booklet he discovered in 2004 floating around the fringes of a right-wing event.

Here's his intro (my emphasis and paragraphing):

Once upon a time, in early 2004, I attended one of hundreds of "Parties for the President" organized nationwide for grassroots volunteers who wanted to help reelected George W. Bush, at a modest middle class home in Portland, Oregon.

At one point, a nice old lady politely pressed into my hand a grubby little self-published pamphlet she had come upon, purporting to prove that Democratic presidential candidate John Kerry had faked the heroics that had won him three purple hearts in Vietnam. I added it to my mental store of the night's absurdities that I expected to hear rattling across the wingnutosphere the entire fall: "I still believe there are weapons of mass destruction"; "There is an agenda—to get rid of God in this country"; "John Kerry attended a party in which there was bad language!"

What I didn't expect was to see Kerry's war-hero cred earnestly debated night after night on CNN. Then came August and "Swift Boat Veterans for Truth" — and that little old lady's fever dream began dominating the media discussion of the campaign, and the rest, as they say, is history.

That's the way, in my experience, the ecology of right-wing smears works: Insane horror stories – Clinton is running cocaine out of an Arkansas airport! Barack Obama had gay sex in the back of a limo! – bubble up from the collective conservative Id at the outset of an election year; professional conservatives in Washington identify the ones that seem most promising and launder them through the suckers in the "balance"-hungry mainstream media; and presto, before you know it, it's death-panel-palooza, 24/7.

Presto; yet this is not magic, but art. These are professionals. Watch and learn — here's how the process breaks down. They:

• Figure out how the rubes want to be lied to
• Figure out which lies have "legs"
• Figure out which lies also advance the Movement Conservative Project
• Focus-test all of the swamp-meat prose they come up with
• Deliver the stinkiest rot to the eager flies using the fly-seeking "professional" press
• Count the money (note to students: the MoveCon Project pays extremely well)

This is how it's done when the pros do it. There is nothing uncalculated about advertising. (Hint: Ask yourself why there are so many black men in the "can't get hard" ads. Go ahead, ask. There's an answer, and it's perfectly thought through.)

Perlstein has much more. He traces the history of this particular fantasia — from a 1961 Supreme Court decision footnote; to a 1974 near-miss court challenge to the "religion of Secular Humanism"; to its demonization in a 1984 right-wing classic; to ... well, read on. It's Perlstein doing what Perlstein does quite well — tell a great story.

I can't close without giving you this, the current season's seed, from the Rolling Stone article I've been quoting and Crooks and Liars. (If by chance you listen to this vid twice, ask yourself if the questioner isn't a shill, a ringer.To my ear she sounds way too focused on asking the question from a very precise angle.)

Romney in Wisconsin (that's Paul Ryan on stage with him):



In defense of Perlstein's prediction, the Catholic Bishops PAC is all over this one. I agree with Perlstein — it's not going away on its own.

GP

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Supreme Court okays strip searches for traffic fines

Your Supreme Court at work. Five-four decision (natch). Do you think this decision will be used by some to target more blacks than whites, more women than men, more Latinos? Or to intimidate Occupyers? (So do I.)

Via the Guardian (my emphasis and paragraphing):

The US supreme court ruled on Monday that jails do not violate privacy rights by routinely strip-searching everyone, even those arrested on minor traffic offenses. By a 5-4 vote and splitting along conservative-liberal ideological lines, the high court ruled that privacy rights involving the searches were outweighed by security concerns by jails about a suspect hiding drugs, weapons or other contraband.

Writing the opinion for the court's conservative majority, justice Anthony Kennedy concluded the jail search procedures struck a reasonable balance between inmate privacy and the needs of the institution.

You remember Kennedy, don't you? He's the great "centrist" hope.

The case on which this was decided is particularly egregious.

Attorneys for Albert Florence, who was strip-searched twice at two New Jersey jails in a six-day period after his arrest for an unpaid traffic fine, argued jailers must first have reasonable suspicion of wrongdoing.

I've seen reports [see update below] that not only had he paid the fine, but he had proof of that in the car — 'cause, you know, driving-while-black and all. Didn't matter, apparently, to Mr Moderate-Justice Kennedy.

Oh, and not to forget, this tickled my fancy as well:

The decision was a victory for ... the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.

Cornel West, anyone? (Just asking.)

Your SCOTUS news of the day. For more information, watch this excellent Maddow Show segment — she interviews the subject of the case and provides her thoughts.



Sigh.

UPDATE: Here's the report that Mr. Florence had proof of payment in his glove box at the time of his arrest. Wash Post:

He spent seven days in jail because of a warrant that said, mistakenly, that he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glove box because he believed that police were suspicious of black men who drove nice cars.

Driving While Black? Only the arresting officer knows for sure.

GP

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What's at stake if SCOTUS cuts back the Commerce Clause?

Via Sam Seder and the Majority Report, we're pointed to this excellent commentary by Chris Hayes on his new Up With Chris show.

It's short, tight, and puts this momentous decision in good historical context. Watch:



Ah yes, the social contract; something we've been on about as well.

Seder also points us to this comment by Jeffrey Toobin in the New Yorker. Very smart. According to Toobin, there's 70 years of settled law at stake (my emphasis and some reparagraphing):

Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy:

“Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?”

Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. ...

Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act [which established the NRA], a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause.

Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.

This isn't just about the ACA or getting a second crack at the Public Option; it's about settled law and the Commerce Clause. Untimately it's about the New Deal government that we've all been living under and benefiting from — the one we assume is bullet-proof, here forever.

Not so, says Toobin (and Hayes in the clip above). Toobin again:

In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing[.] ... Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda.

It's own "political agenda"? Would that be one more voice saying this? He continues:

[This] decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. ... It is simply not the Supreme Court’s business to be making these kinds of judgments.

Maybe. On the other hand though, if you totally love power, and totally can't be removed by any agency on earth — why not just use it?

After all, it's not like you haven't had practice swinging some pipe; you totally gave us this guy:

Nearly a century of settled law won't repeal itself, you know, and time's totally wasting.

GP

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Why health insurance isn't broccoli (the short version)

Paul Krugman spends his precious Times inches on the Supreme Court ACA-broccoli debate. Along the way he has a nice tight explanation about why the two aren't comparable.

He writes (my emphasis):

Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.

That's pretty straight-forward. As to how to fix the problem, Krugman clearly sees the options:

There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.

Krugman doesn't have a SCOTUS ACA prognosis, but he does say that:

it’s hard not to feel a sense of foreboding — and to worry that the nation’s already badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.

Yes, Professor. We all have that foreboding. We've been forebode before.

GP

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Scalia mocks Obamacare provision that doesn't even exist

Nothing like having the best and brightest at the highest level of the American justice system. With knuckle-dragging blockheads like Scalia on the court, how is it possible for a country to prosper, let alone lead in this century? It hardly seems likely that there will be an honest debate about the legal issues when one of the strongest forces on the court isn't even paying attention to the details.

We should expect much more from the political class than this.  From Olivier Knox at Yahoo News:

Conservative Justice Antonin Scalia suggested on Wednesday that the Supreme Court could strike the "Cornhusker Kickback" from President Barack Obama's landmark health care overhaul without having to invalidate the whole law. He was right, in a way: The notorious provision isn't in the law.

The "Cornhusker Kickback" was the derogatory nickname of one of several sweetheart deals designed to ensure that the law had enough votes to pass. Amid a public uproar, lawmakers ultimately stripped the measure from the law.

But no one—not Scalia's eight colleagues on the highest court in the land, not Deputy Solicitor General Edwin Kneedler, there to represent Obama, and not the superstar lawyer challenging the law on behalf of 26 states, Paul Clement—challenged his claim.

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SCOTUS loss of legitimacy—"Conservative justices are happy to take radical action for political aims"

The "loss of legitimacy" part of the title is mine. The rest is Rachel Maddow:

"[In Bush v Gore, Conservative justices] were pretty happy to take radical legal action, as long as it achieved a political aim that they wanted." [7:54]

"If you go by what people tell pollsters — we think the majority of the Court is a partisan body that will do anything in their power to help politicians who are on their side, and to hurt politicians who are on the other side." [10:57]

Needless to say, this is another excellent segment from Team Maddow. It's about the mess that the Supreme Court has become (clearly by design).

The segment is in two parts:

■ She begins with the decision in Bush v Gore, which Bruce Ackerman calls "a constitutional coup". (Does that phrase sound familiar?)

Then she pivots to voter suppression, which is why the Florida election was stealable in the first place.

If you listen to just the first half of the segment (seven minutes or so), you might think the take-away is — Voters in Florida don't care that voter registration is a crime, so they deserve what they get.

A perfect half-segment, and she could have stopped there, with the mess in Florida. But there's more.

■ She then pivots back to the Supreme Court (7:30). First, back to Bush v Gore, then to Citizens United, and finally to this week's oral arguments on the ACA (at 9:20).

Watch:



Don't miss the chart at 10:32. And don't miss the comments (at 11:10) connecting the Koch Bros–funded AFP demonstration outside the Court with the MoveCon–"funded" Clarence Thomas & family.

It's a brave new world; glad it's being called out.

GP

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The Founding Fathers loved health care mandates

In light of the Supreme Court hearing arguments this week about the constitutionality of the Affordable Care Act and the individual mandate, it seems appropriate to revisit a New England Journal of Medicine article from January concerning the mandate's legality.

The article, like others that cite precedent for the individual mandate, first considers Wickard v. Filburn and Gonzalez v. Raich, the 1942 and 2005 rulings that uphold Congress' authority to regulate an individual's commercial activity if their action (or inaction) has an effect on the market as a whole. Such citations are often countered by conservatives who maintain that, no matter what legal precedent exists today, the Founding Fathers would never have dreamed of such a tyrannical interpretation of the Constitution and would have considered any form of a mandate an affront to freedom, liberty, justice, and all other things green and good in our country.

But is that really the case?

The article goes on to cite three laws, passed in 1790, 1792 and 1798 respectively, that provide for mandates not unlike the one being considered by the Supreme Court this week. Einer Elhauge, the author, writes:

[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.

PolitiFact dug deeper into Elhauge's claims and found evidence that mandates were approved by Congressmen who had also signed the Constitution; refuting the assertion that the laws passed despite framers' objections:

There was no roll call for the House and Senate bills requiring health care for seamen. But on the proposal mandating the purchase of a musket, firelock or rifle as part of the larger bill to establish a uniform militia, 10 of the 14 framers whose votes were recorded endorsed the measure.

Not only did mandates pass muster with the Framers in Congress, they were signed into law by George Washington and John Adams. Those who say that the Founding Fathers would object to any governmental regulation of the free market should double-check their history. They won't like what they find. Read the rest of this post...

Can Montana's Supreme Court decision be used to overturn Citizens United?

Overturning Citizens United seems like a stretch, but not so far a one that the New York Times didn't feature it just this week.

Background: You probably know about the U.S. Supreme Court's ruling in Citizens United — corps, using their free speech rights, can spend in an unlimited way on political campaigns. In explaining (defending) their ruling, Justice Kennedy wrote that corporate expenditures:

do not give rise to corruption or the appearance of corruption.

But recently the Montana Supreme Court ruled that Citizens United didn't apply in Montana, since Montana's law banning corp contributions to politics is based on Montana's actual experience with just that kind of corruption, in a very big way.

Slate's Dahlia Lithwick explains (my emphasis and paragraphing):

[B]y a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United.

In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.”

Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.

Gauntlet thrown; reason given.

The U.S. Supreme Court was asked to overturn the Montana ruling, and decided instead to issue a stay pending review.

That's where it gets interesting. The whole thing turns on three sentences added by Justices Ginsberg and Breyer to the SCOTUS ruling that placed a hold on the Montana ruling (pdf; my emphasis):

Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay.

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

Linda Greenhouse in the NY Times writes:

In their separate statement, Justices Ginsburg and Breyer seemed not to buy the “Montana is different” rationale, instead viewing the state court’s ruling, despite its protestations to the contrary, as simple defiance of Citizens United. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” the two justices observed.

Their point, rather, was that the Supreme Court itself should use this case as a vehicle to reconsider Citizens United.

"Montana is different" is the heart of the state court ruling. So this is an interesting ploy by Ginsberg and Breyer, whom Greenhouse calls "savvy players."

She admits that overturning Citizens United would be "a huge leap for the Citizens United majority.". The world of the Court overturning previous rulings normally includes changes to the Court's composition — but not always. Her article is worth reading for those instances alone.

We're keeping a close eye on this. If there's indeed a review of Citizens United, we'll have a chance to see if Justice Kennedy sticks to his wrong-headed guns regarding corruption. (I know, "wrong-headed guns" — so sue me...)

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Portland Oregon City Council says corporations not people

The opposition to Citizens United, the corp-friendly Supreme Court decision, is building.

On the heels of this and this, the City Council of Portland, Oregon, has stepped up. The Oregonian online (h/t Dylan Ratigan; my emphasis and some reparagraphing):

Portland City Council approves anti-war and corporate-personhood resolutions

Portland City Council chambers overflowed this afternoon with supporters of two resolutions that grew out of the Occupy Wall Street and anti-war movements. Both are largely symbolic.

The first measure takes aim at military spending and responds to a call from local peace activists in October. ...

A second resolution, piggybacking on efforts in Los Angeles and elsewhere, establishes "that corporations should not receive the same legal rights as natural persons do, that money is not speech and that independent expenditures should be regulated" in political campaigns. It takes aim at the U.S. Supreme Court decision in Citizens United, which allows unlimited corporate spending in elections.

As the article noted, both measures are "largely symbolic."

(Keep an eye on that Montana decision though; the Montana Supreme Court, which in many people's estimations is about to be slapped down, has actual power.)

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"Why won’t progressives fight for federal judges?"

In the wake of this discussion of progressives and their non-existent (or dysfunctional) relationship with the federal court system, I'm pointed via email to this article discussing the same issue.

In it, University of Georgia law professor Sonja West asks: "Why won’t progressives fight for federal judges?" and launches into an interesting examination.

First, the problem (my emphasis):

The lack of concern about or willingness to fight for judicial nominees by one party is a serious weakness in our current political system. If one side cares intensely about the courts and the other side doesn’t, what you get is a long-term bias in one direction. This growing imbalance shouldn’t just worry progressives. It should alarm anyone who believes a range of voices on the courts is essential.

Yet Democrats have a nagging blind spot for fully comprehending that when it comes to advancing the issues they care about, judges aren’t just important but indispensible. If disillusioned Democrats are wondering whether it matters whether President Obama gets a second term, they should look no further than the aging faces of the nine justices at the Supreme Court. And the thousands of demonstrators at Occupy Wall Street need to understand that many of the very things they’re protesting against are the direct consequences of decades spent by progressives deprioritzing judicial appointments.

That last statement is both powerful and true. To paraphrase:

OWS protesters need to understand that much of what they're protesting against are caused by several decades [at least 30 years] of progressives not caring enough about judicial appointments.

We're doing it to ourselves. Progressives are getting the country we're getting because of our choices — not as individuals, for the most part, but certainly as a group, a "coalition." When the Right builds a media outlet to get its message out (Fox News, say), it allows that outlet to operate at a loss for as long as it takes. Why? Because the Right is on a mission.

When the Left builds a media outlet (Air America, say), it forces that outlet to turn a profit or go under. Why? Because the Left is out to lunch.

And that's especially true when the subject is the courts. As I wrote earlier:

While the Federalist Society Right, with its corp-first ideology, has been fighting a 30-year battle to pack the U.S. court system with cronies and fellow radicals (my phrase again), the left has been going on long champagne lunches, enjoying the fruits of our national postwar wealth, and assuming this will always be their daddy's USA. It won't.

Where would we be today if Air America were allowed to run free? And where would we be if we fought for good judges and against bad ones with the same fervor (and skill) as our opponents?

Back to West's article. Where I see complacency, West sees a lack of good prioritization:

What modern Democrats crave instead are legislative victories—health care, immigration reform, social support systems, and environmental protections. And that leaves little left over in the political capital checking account to spend on judges. Democrats, of course, aren’t going to kick a liberal court out of bed for eating crackers, but they don’t want to push for one at the expense of other matters. In the first two years of the Obama Administration alone, the President and Congress could have appointed a slew of new federal judges, but they chose to work on other things. These other things, while important, came at the expense of judges.

Could well be true. The article is good — it reads well and makes the case. It also details some of the (many) losses caused by only caring about Supreme Court nominations. Please check it out.

I'll just add that this is not a problem that defies solution. Unlike electoral politics and the problem of taking over the Senate or the House (or the Democratic party), controlling the courts can be achieved by controlling a very small number of pressure points (I count three).

I'll offer more detail shortly; it's not rocket science to design this as an "op" or a project. This is incredibly important, and one side of the solution (playing on defense) requires just one determined person.

Playing to win; wouldn't it be nice to move the ball the other way for a change? We might even score some points of our own. Stay tuned.

GP Read the rest of this post...

What’s wrong with the courts is that progressives don’t care about them

What's wrong with the courts is that progressives don't care about them.

This is a strikingly clear, informed, passionate statement of the current situation in the U.S. judicial system, and the inexplicable refusal of the left to play in the same league as the Republicans, much less the same game.

A must-listen in my opinion. And both hosts, Slate's Dahlia Lithwick and Culture of Truth (author of the Bobblespeak Translations), make excellent points.

The whole show is an hour, but a good place to start is 40:40, just after the break. Ms. Lithwick and CoT had been talking about Obama's health-care law (ACA) and the potential for a favorable SC ruling. They then moved to the calls for Kagan (from the right) and for Thomas and Scalia (from the left) to recuse themselves.

After the break, they picked up there, with the calls for ACA recusals. This launched a terrific discussion.

Click play and then pause to let the full piece load (it should take only a few seconds). Then click in the progress bar to move to the middle. Start listening at the 40:40 mark.

(Hint: Holding down the right and left arrow keys performs an excellent fast-forward and fast-rewind. Use them for navigation.)

Listen to internet radio with Jay Ackroyd on Blog Talk Radio

A brief run-down:

■ At 40:40 — Will Kagan recuse? Will Thomas? This leads to a great discussion of "Is the court necessarily political?" (Don't miss Lithwick's nice writerly phrase "blinking like bunnies in the sun.")

■ At 44:30 — Even though the court has only to appear apolitical, those appearances are critical to the court's success.

■ At 45:30 — CoT: Here's why — loss of legitimacy; the court has no army and no purse (brilliant point, well made).

■ At 54:20 — The left has completely ignored the long 30-year project to take over the court system.

■ At 60:05 — The problem isn't just Citizens United; it's 30 years of right-wing decisions.

■ At 61:05 — Great summation by Lithwick. A taste:

Citizens United is just the icing on the cake. The cake itself is a serious of cases that have gone on for years, undetected, about limiting the ability of litigants to get a fair shake in the court ... using incredibly technical rules.

The whole of this rant is not to miss.

■ At 65:10 — Lithwick on the right's "long war," not just on health care, but on reproductive rights, environmental protection, redistricting (see here), Arizona immigration, and so on.

■ At 67:20 — Lithwick: If you care at all about the courts and the 30-year right-wing takeover (my phrase), you have to care about who the next president is. (She said it; I'm just calling balls and strikes. And like it or not, this really is one of the args a thinking person must consider.)

Bottom line, same as the first sentence. While the Federalist Society Right, with its corp-first ideology, has been fighting a 30-year battle to pack the U.S. court system with cronies and fellow radicals (my phrase again), the left has been going on long champagne lunches, enjoying the fruits of our national postwar wealth, and assuming this will always be their daddy's USA. It won't.

Lithwick's point (and mine): Time for the left to step up. The game isn't over yet, but the day will come when it will be, and most of us have kids.

GP Read the rest of this post...

Supreme Court hears Texas redistricting case; minority representation & maybe Voting Rights Act at stake

We're coming into court season, and the U.S. Supreme Court is poised to change the world on a number of fronts, or at least try. (I'll have more about the whole court problem shortly — it's not just the Supreme Court that's at issue.)

One case before the Court this season involves the redistricting map for (ready?) Texas. You can guess what happened: The population grew by a lot; most of that growth was Hispanic; Republicans own the legislature; the legislature has a map; and Washington has a Voting Rights Act.

It's a sure-fire party mix. Here's Slate's Dahlia Lithwick with the details (my emphasis and paragraphing):

The good folks of Texas have an election looming. Specifically, on April 4 (already pushed back from March 6) they are meant to go to the polls to vote in a primary. That’s problematic because they currently have no districting maps.

Or, to be more precise, they currently have three. They have the map that was used 10 years ago, before the population expanded by 4.3 million voters (of whom 65 percent are Hispanic), thus requiring that legislative lines be redrawn to reflect that minority voting will not be diluted under Section 2 of the Voting Rights Act. (That will mean four more seats in the U.S. House of Representatives.)

Then we have the redistricting map drawn by the GOP-dominated Texas legislature, which is also obsolete, because under Section 5 of the 1965 Voting Rights Act, states with a history of discrimination in voting must be “precleared” by either the U.S. Justice Department or a federal court in Washington, D.C., before any election-related modifications can be put into place. A federal court in Washington is set to decide whether the Texas redistricting plan will be precleared, but possibly seconds before the April primary.

Enter the third set of maps, cooked up by a federal court in Texas—in part at the behest of the federal court in D.C., and several minority groups who say the new maps drawn up by the legislature in no way reflect the minority growth in the state. The Texas court thus drew up a set of “interim maps” to get Texas through this election crisis.

One might think that with two federal courts working off three sets of maps, over two dueling sections of the Voting Rights Act, all on a ticking deadline, the worst possible decision would be for yet another court to step in.

One would be mistaken. And so last December the U.S. Supreme Court blocked the interim maps and agreed to hear a challenge from Texas Republicans who don’t think the Texas courts were sufficiently deferential to the Texas legislatures’ maps in drawing up the new maps. The whole heap of it was argued this afternoon [January 9] at 1 p.m., and by the time the lawyers sat down at 2:20, it was clear that the justices had done little more than get us 80 minutes closer to an April deadline without much hope of solving the problem, much less solving it yesterday.

Got that? Section 2 of the Voting Rights Act requires that minority voting not be diluted. Section 5 of the Voting Rights Act requires that states with a history of voting discrimination have their redistricting maps precleared in Washington. Those precleared maps may not be available in time for the election (and in fact, may not be cleared, given the propensities of Texas Republicans).

Which brings us to the actual problem for Republicans — the existence of a "voting rights act." The state of Texas is arguing that the legislature's map be given automatic "deference," something that Justice Sotomayor says would amount to "turning Section 5 of the Voting Rights Act on its head."

As you can see, there are clearly two targets here. One is the redistricting map. Will Texas Republicans successfully blunt the voting power of almost 3 million Hispanics for the next decade?

The other target is the Voting Rights Act itself, especially Section 5. From Lithwick's report:

Justice Anthony Kennedy says, in a manner likely to strike terror into the hearts of anyone who thinks this case will spell the death of Section 5 of the Voting Rights Act, “Isn’t it odd that this is a Section 2 suit but Section 5 seems to be driving it?” In case you’re wondering whether he thinks it’s unfair that the states with a history of racial discrimination bear extra burdens under Section 5, he then adds, “Texas is at a tremendous disadvantage here!”

Will the nakedly partisan Republicans on the Supreme Court (which chose this case on its own, remember) find a way to achieve either or both of these goals?

It will be a hard slog no matter what they do — three maps (none of which passes full legal muster); three courts (Supreme Court, a D.C. district court and its preclearing decision, a Texas lower court with its interim map); and a very tight deadline.

It's not certain the Gang of Five will succeed; but they're sure putting on a wonderful show of trying. A good clear article, and a good case to keep an eye on. (Additional analysis here if you're so inclined.)

GP Read the rest of this post...

Hungary—What a constitutional coup looks like

The writer of this piece uses the term "Constitutional Revolution" and that's accurate as far as it goes. It is a revolution, and it did change the Hungarian constitution.

But it's also a coup — it converts a constitutional democracy into a constitutional dictatorship, one designed to keep the current rulers in power indefinitely.

The background: Hungary is one of the first states in Europe (and in the European Union) to slide back into dictatorship as a result of (1) the worldwide economic crisis and (2) the abortive mishandling of the crisis in Europe.

Paul Krugman wrote about that here. This is a guest columnist on Krugman's blog, Kim Lane Scheppele, to explain what happened more fully.

I consider this a must read article. This is one of the two ways a constitutional coup works. (Points for those who can identify the Midwestern states in which this is actually operating today.)

Scheppele begins (my emphasis):

In a free and fair election last spring in Hungary, the center-right political party, Fidesz, got 53% of the vote. This translated into 68% of the seats in the parliament under Hungary’s current disproportionate election law. With this supermajority, Fidesz won the power to change the constitution. They have used this power in the most extreme way at every turn, amending the constitution ten times in their first year in office and then enacting a wholly new constitution [pdf] that will take effect on January 1, 2012.

This constitutional activity has transformed the legal landscape to remove checks on the power of the government and put virtually all power into the hands of the current governing party for the foreseeable future.

This excellent post takes us through all of the steps, including (my summary):

▪ Neutering the judiciary (interesting set of specifics here)
▪ Party control over election supervision
▪ Redrawing electoral districts to guarantee electoral wins well into the future
▪ Neutering of human rights, data protection and minority affairs ombudsmen
▪ Intimidating the press through the ability to bankrupt media outlets through fines
▪ Embedding major changes into law by requiring a super-majority to overturn them

And on and on. I especially liked this part, again from the article:

The new constitution also accepts conservative Christian social doctrine as state policy, in a country where only 21% of the population attends any religious services at all. The fetus is protected from the moment of conception. Marriage is only legal if between a man and a woman. The constitution “recognize(s) the role of Christianity in preserving nationhood” and holds that “the family and the nation constitute the principal framework of our coexistence.” While these religious beliefs are hard-wired into the constitution, a new law on the status of religion cut the number of state-recognized churches to only fourteen, deregistering 348 other churches.

As I said, a must-read.

This is a problem for the EU; how will it respond to dictatorships springing up within its borders? The article makes clear that Brussels has concerns. The new Hungarian government is so far unresponsive to them.

It's clear that, barring fighting in the streets — real fighting, against the Hungarian army, should they choose to support the new regime — the coup will be next to impossible to reverse.

Ahem: Once you give away your democracy, you don't get it back by asking.

Now about my opening comment, that this is "one of the two ways a constitutional coup works."

Constitutions have two forms — the written form, and the "as practiced" form. You can make revolutionary changes to either and kill your democracy. In Wisconsin, Ohio, and elsewhere, Republican governors and legislators are overturning written constitutions with actual laws.

But at the federal level, the constitution is as much "by agreement" as it is written. "By agreement" the president can order assassination of U.S. citizens. Obama did it; no one who matters complained.

President Whoever now has that right; the next step will be to move the definition of "acceptable target" until it includes political enemies. For example, any bets on whether the phrase "eco-terrorist" is going to get new life? The list of demons is endless in a country defined by demonization — especially of the liberal left by the powerful authoritarian right.

A second area of change to our "by agreement" constitution is the role of the judiciary. Does the Supreme Court have the right to intervene politically in presidential elections? After Bush v Gore, you'd have to say Yes. The next step is to refine (move) the definition of When.

There are many of these areas of "by agreement" constitutional drift. Not prosecuting holders of very high political office, no matter the crime, is a third. The list is long.

For these reasons, it's safe to say that the U.S., at both the state and federal levels, is itself undergoing a constitutional revolution (and frankly, has been since Nixon was pardoned).

A strong suggestion, therefore: do read that article. It's easier to spot what's going on when it's a Hungarian frog being boiled. Ahem.

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