Posts Tagged ‘Supreme Court’
Why the SCOTUS hearings have worked
For my part the hearings have been edifying. Apart from appreciating the thoughtfulness with which Sonia Sotomayor framed questions, wearying of Stephen Breyer’s singsong college professor intonations, and noting again John Roberts’ courtesy, I finally understand that health insurance and care are two different things. In this economy, you get healthcare through health insurance. That’s why the broccoli analogy is all wet.
Vaporizing insurance companies as middle men was never seriously considered by Obama and his claque; that’s why I at least have blamed him for from the beginning. I also worry that AHCA may inadvertently — if I’m not being cynical — lead us in a few years to Paul Ryan-style atomization whereby, as Claire McCaskill noted two weeks ago:
“The irony of this situation is that these are private insurance companies people will shop to buy their insurance. It’s not the government,” she told KMOX of St. Louis on Wednesday. “It’s exactly what Paul Ryan wants to do for Medicare.”“It’s subsidized by the government — premium subsidies — which is exactly, this is the irony,” continued McCaskill, who faces a tough reelection battle this fall. “You think what Paul Ryan wants to do for seniors, you think it’s terrific. But when we want to provide private health insurance for people who don’t have insurance with subsidies from the government, you think it’s terrible.”
Even Ezra Klein, who crunches on economic data like peanuts, can’t see the millimeters that separate the AHCA and Paul Ryan’s plan:
Republicans’ long-term interests are probably best served by Democratic success. If the Affordable Care Act is repealed by the next president or rejected by the Supreme Court, Democrats will probably retrench, pursuing a strategy to expand Medicare and Medicaid on the way toward a single-payer system. That approach has, for them, two advantages that will loom quite large after the experience of the Affordable Care Act: It can be passed with 51 votes in the Senate through the budget reconciliation process, and it’s indisputably constitutional.Conversely, if the Affordable Care Act not only survives but also succeeds, then Republicans have a good chance of exporting its private-insurers-and-exchanges model to Medicare and Medicaid, which would entrench the private health-insurance system in America.
That’s not the strategy Republicans are pursuing. Instead, they’re stuck fighting a war against a plan that they helped to conceive and, on a philosophical level, still believe in. No one has been more confounded by this turn of events than Alice Rivlin, the former White House budget director who supports the Affordable Care Act and helped Ryan design an early version of his Medicare premium-support proposal.
“I could never understand why Ryan didn’t support the exchanges in the Affordable Care Act,” Rivlin says. “In fact, I think he does, and he just doesn’t want to say so.”
But, no, I have no interest in supporting the rescinding of court decisions that keep people with preexisting medical conditions and poor twentysomethings from the rolls.
“The paths of glory lead but to the grave”
Dale Carpenter’s Flagrant Conduct reminds us that memorable law cases often bloom in spite of the anonymity or even delinquency of the litigants. Dahlia Lithwihck‘s review reminds us who those men whose experience inspired 2003′s landmark Supreme Court decision Lawrence v. Texas:
When Lawrence, who was born in 1943 to devout white Southern Baptists, was enlisting in the Navy, he quizzed a buddy about the forms he was filling out. “What’s a homosexual?” he wondered. Neither knew the word. Both were gay. After leaving the Navy, Lawrence moved to Houston, worked as a medical technician, and totted up a slew of drunk-driving violations, including a conviction for murder by automobile, in 1967. In the late seventies, he moved into a run-down complex in East Houston populated by underemployed youngsters and strippers who liked to party. Lawrence largely kept his sexual orientation a secret at work, and was anything but a gay-rights activist. Right to the end of the litigation bearing his name, Lawrence’s principal beef was that overzealous policemen had invaded his home without a warrant.
Tyron Garner, the tenth child of black Baptist parents, was twenty-four years younger than Lawrence. He had no car and no fixed address, and supported himself by washing dishes and cleaning houses when he could. Described as “sweet” (despite three previous assault charges) and effeminate, Garner was involved in a stormy relationship with another white man from Houston, Robert Eubanks. And Eubanks, by all accounts, was a mess. Homeless and a heavy drinker, he was the person who called the police on September 17, 1998. Garner and Eubanks lived together wherever they could find an apartment, fighting viciously along the way. Garner and Lawrence, according to Carpenter’s research, were never much more than acquaintances. They weren’t lovers before the case or after.
To some, Garner and Lawrence seemed a risky choice for this role. Both men had criminal records, and their “relationship” added a racial element to the mix. As Carpenter shows, however, these weaknesses were actually strengths. The pair’s transient roots meant they had “little to lose” in being outed as homosexuals in deeply conservative Houston, or in accepting a police report they knew to be false. When their time came to plead, the men followed their lawyers’ instructions and replied, “No contest.” These were “the last words Garner and Lawrence ever said in court about their case.”
Homer Plessy, after losing Plessy v. Ferguson, faded away. Dred Scott won emancipation (eventually) but ended his days as a porter.
For the “oh really” file
A man who wrote an estimable book about the Supreme Court actually wrote this paragraph:
During the last presidential campaign, I swooningly predicted that Barack Obama would be our first civil libertarian president. Of course, I was wrong, and the last three years have offered plenty of disappointments in the president’s record on privacy and national security. But if Obama wins a second term, I hope reelection gives him the freedom to redeem that unfulfilled promise.
He knows law and not history?
“Whether ‘Hair’ could be broadcast on network television”
I love reading Dahlia Lithwick:
The Obama Administration has defended the Bush indecency policy with great zeal, and Solicitor General Don Verrilli opens his argument by reminding the court that “when a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations.” Verrilli reminds the court that regulation of indecency “has been a defining feature of the broadcast medium from its inception in the 1920s in the Radio Act and has continued to be a defining feature of this medium throughout its history.”
Justice Ruth Bader Ginsburg stops him to point out that the problem with the FCC’s new policy is that “one cannot tell what’s indecent and what isn’t; that … Private Ryan is okay, Schindler’s List is okay, but NYPD Blue is not.” (Justice Elena Kagan will later characterize this as an FCC policy that “nobody can use dirty words or nudity except for Steven Spielberg.”) Verrilli replies that the number of FCC decisions that raise questions of arbitrariness are “a miniscule fraction” and that sure, it’s a context-based (read: totally arbitrary) rule the FCC is imposing here, but the court allowed context-based regulation in that 1978 “filthy words” case, Pacifica.
Justice Stephen Breyer raises a question about why the ABC ass case is being heard together with the fleeting-expletives case. Justice Ginsburg asks whether Hair could be broadcast on network television (Verrilli: “Serious questions”) and then whether the opera Metropolis could be broadcast (Verrilli: “Context-based approach”). Then Justice Anthony Kennedy interrupts the parade of naked horrible to clarify: “What you’re saying is that there is a public value in having a particular segment of the media with different standards than other segments.” Verrilli replies that, yes, this is about preserving “a safe haven where if parents want to put their kids down in front of the television at 8:00 p.m. they’re not going to have to worry about whether the kids are going to get bombarded with curse words or nudity.”
Because if you want that, you can find it in the back seat of my car, at rush hour when we’re late for Kung Fu. Just ask my children.
Justice is served: Elena Kagan
In a report card grading Elena Kagan’s first year, Dahlia Lithwick thinks the Supreme Court will uphold the Affordable Health Care Act “by a 6-3 or a 7-2 margin,” reminding us that “for every Bush v. Gore, there are hundreds of cases that are not decided along party lines, and also because party lines don’t always begin and end at wanting to embarrass the president.” Not the wiseacre observation I would have expected from Slate’s funniest writer, for whom oral arguments represent delicious opportunities to practice her talent for the Dickensian caricature (e.g. “The second case, Kentucky v. King, reads a bit like a Cheech and Chong script. The Fourth Amendment requires that the police obtain a warrant—backed by probable cause—to search your home. There are some exceptions to this requirement, which you may remember from NYPD Blue” or any description of Justice Breyer ponderously asking a six-part question.
If you listen to those oral arguments, you expect Scalia to be the standout, but this term it’s Kagan’s high, slightly pinched Manhattan tones and penchant for quick, pungent questions that demonstrate how fascinating she must have been in the classroom.
Doubting Thomas
I am no lawyer but I probably should have been because I am a pedant and can argue any side with conviction. But I’ve read enough fiction and history to know that what legal scholars call “originalism” is a load of codswallop. If I were to argue in an essay for a literature class that we cannot seriously interpret, say, Conrad’s Nostromo or Eliot’s “Gerontion” without studying the intentions of the writer and confining ourselves to What The Words mean, I would not only produce an essay of embarrassing brevity but bore my readers as soon as soon as they picked themselves off the floor from laughing*. What Charles Evans Hughes once said about the Constitution is as true about it as it is about literature: The Constitution is what we say it is. One of the few points on which Thomas are in agreement is his disdain for stare decisis: if precedent on matters of consequence is incorrect, then correct it. Interpretation is redress. Thomas, however, would cite for intellectual ballast a fidelity to the text of the Constitution and of the Framers. Again, I will not venture too far into theories of jurisprudence for fear of looking like a prat, but consider: are Thomas and (to a lesser extent) Justice Antonin Scalia such empty vessels that their paid appearances before rapt audiences reflect exactly their constitutional views? Or, to put it another way, why does their jurisprudence coincide with the political activism of, to cite three random figures in modern conservatism, Steve Calabresi, Michelle Bachmann, and Ed Meese? (It’s also worth nothing for yuks that Thomas the ultra-Catholic officiated Rush Limbaugh’s marriage to a member of Rush’s harem).
Jeffrey Toobin’s essay on Clarence Thomas’ legal philosophy, such as it is, and wife Virginia Thomas’ vigorous proselytizing on its behalf dismisses the notion — which I too admit is condescending — that Thomas exists as a Scalia hack, a reputation acquired in part after his years of monastic silence during oral argument (he hasn’t asked a question since Donald Rumsfeld ran the Pentagon and Nelly Furtado scored her first #1 single). Thomas, according to Toobin and the delighted conservative jurists and politicians he cites, is in fact the most conservative justice since the days of Willis Van Devanter, Pierce Butler, George Sutherland, and Joseph McReynolds — the quartet known as the Four Horseman of Judicial Reaction who irritated FDR so in the thirties. Toobin:
Scalia is the figure most often associated with this school of thought, but he refers to himself as a “fainthearted originalist.” Scalia means that other factors besides his own understanding of the intent of the framers, most especially the long-established precedents of the Court, influence his judgment on the resolution of constitutional disputes. “If a constitutional line of authority is wrong, he”—Thomas—“would say let’s get it right,” Scalia told a reporter in 2004. “I wouldn’t do that. He does not believe in stare decisis period.” In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution.
Thomas’ extra-judicial remarks and writings brim with that special blend of herbs and spices known as right-wing self-pity, in which the victim reminds his audience of not only how poorly liberalism served him while studying in the heart of socialist academe (Yale in Thomas’ case), but how the slings and arrows of outrageous fortune drove him to lead the army of the righteous. I take Thomas’ point that we — we as in academe, bureaucracies, and other members of the culture industry — take the Ivy League much too seriously. I’m glad he hires clerks from second- and third-tier law schools. But must he keep reminding us of how he writhed in these purgatorial flames? As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale,” Thomas writes in a passage of his memoir quoted by Toobin. “I never did change my mind about its value.” Reading Jane Mayer’s excellent The Selling of Clarence Thomas a few years ago, I was amazed by the tortured ambivalence with which he regarded his education and job in the Reagan administration: Yale and the EEOC only accepted him because he was black, therefore, he reasons, there’s something wrong with those institutions, with me, or both. Contemptuous of affirmative action because it will not allow black men and women to rise on their merits, he can’t live with the probability that his own extraordinary rise resulted from tokenism, as of course it did, and so what? Thomas Sowell aside, how many black conservatives did National Review endorse?
The best conclusion a sensitive analyst will reach is that in originalism Thomas found a way of thinking about law whose certitudes soothed his doubt and rage. The other conclusion: the Obama Justice Department better have Thomas’ jurisprudential counterpart ready when Ruth Bader Ginsberg retires.
* There’s a reason why most law students majored in English or history.
Latinates: ugly cravats
Justice Anthony Kennedy offers advice for writing legal prose, but it applies to anyone attempting prose worth a damn:
Interviewer: You have some pet peeves as a writer — among which, you don’t like adverbs, do you?
Kennedy: I do not like adverbs. In part, it’s because it’s a rule that I want to have for myself. They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction. And it seems to me by not using the -l word . . . or, pardon me, the -ly word, you just discipline yourself to choose your words more carefully.
And:
But I have other pet peeves about writing. One is I’m a traditionalist. This is something that I will admit. And I do not like nouns that are turned into verbs: I task you or I was tasked with this assignment or I was tasked with this opinion. A “task” is a noun; it’s not a verb. Impact. This impacts our decision; impact is a noun, and it seems to me trendy. I don’t like trendy words. Now, the language obviously grows; it can’t be static. The beauty of the language is its dynamism and its growth, so I accept that. I don’t like the word “grow:” We’re going to grow the economy. It seems to me that you grow a carrot; you don’t grow the economy. But after a while I have to succumb to some of these things [laughing].
Interviewer: What do you think about incentivize?
Kennedy: I think incentivize is highly objectionable for two reasons: Number one, it uses -ize. I do not like -ize words, which are also made-up words. And that’s also…it’s a word that reminds me of someone wearing a very ugly cravat.
“Matronly equals trustworthy”
Semiotics matters to Beltway insiders, as this profile on Elena Kagan’s wardrobe makes clear.
How discombobulated would folks be if a male nominee walked the Hill wearing a Thom Browne suit with trousers that ended at the ankles or if a woman strode purposefully down the marble corridors in a pair of platform Christian Louboutin heels and a Marni sack dress? There’d be nothing profoundly inappropriate with any of that other than the images wouldn’t square with the preconceived notion that sobriety equals intellect. Bland equals responsible. Matronly equals trustworthy.
I especially love when the reporter won’t risk getting disinvited to Sally Quinn’s Christmas party:
Ultimately, of course, on matters so personal, only the individual’s speaking up can truly make things clear.
Yet, while most nominees aim for a wardrobe that sends no wayward signals, it may be that Kagan would be just as happy if her clothes said whatever it is that everyone wants to hear.
But if they don’t, at least she will be presumed reliable and reassuring. Dowdy and dull. And very, very wise.
Diane Wood: “Principled convictions,” persuasive powers
Glenn Greenwald makes the case for nominating Diane Wood.
John Paul Stevens: “I do have to fish or cut bait”
Justice John Paul Stevens, lso-called leader of SCOTUS’ liberal wing although appointed by Gerald Ford as a moderate conservative, tells The New York Times‘ Adam Liptak that he’s getting closer to making a decision about retirement:
“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he said. “The president and the Senate need plenty of time to fill a vacancy.”
News flash: corporations are people too
The consequences of a misreading of this case continue, evinced by today’s Supreme Court ruling.
A couple of weeks ago I finished a superb history of the period, Jack Beatty’s Age of Betrayal. Pick up a copy. The Santa Clara County controversy is discussed in full.
“Same-sex unions promote the values conservatives prize”
Former solicitor general and lifelong GOP man Ted Olson on the conservative case for marriage — in Newsweek no less.
