Voting Rights . . . Another “Entitlement” Conservatives Dislike

Section 5 of the Voting Rights Act, which requires certain states with a history of discrimination to apply to the federal government for “pre-clearance” before making changes to their voting procedures, was in front of the Supreme Court this week, as a county in Alabama argued that the goals of the act had been accomplished and that the requirements now unfairly singled out states that have long remedied the sins of their fathers. The conservative wing of the court has had it in for Section 5 for years, holding that the formula by which covered districts are determined is outdated, and by the looks of it they may finally get their target. The provision, Justice Scalia mused, amounts to a “perpetuation of racial entitlement” — to which Justice Sotomayor later responded, “Do you think that the right to vote is a racial entitlement?”

While the Sotomayor and the other liberal justices defended the act as necessary and pointed to its overhelming reauthorization by Congress — the Senate vote was 98-0 — just six years ago, Scalia made a ridiculous argument that ran completely counter to his legacy of railing against judicial activism. Despite the lip service that the “strict constitutionalist” pays to deference to the legislative branch, he pushed the court to intervene because the senators who voted in favor may not have really meant it. “This is not the kind of a question you can leave to Congress,” he said. This exchange with Justice Elana Kagan captures the extent to which Scalia is willing to step on legislative toes:

Kagan: It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.

Scalia: Or decided that perhaps they’d better not vote against, that there’s . . .none of their interests in voting against it. I don’t think there is anything to be gained by any senator to vote against continuation of this act. . . . They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?

Well, wouldn’t that invalidate every innocuously named piece of legislation, from the Orwellian PATRIOT Act to the Violence Against Women Act to any of the scads of Republican bills with the phrase “job creators” in the title? Woe to the member of Congress who introduces the No Eating Puppies bill. Scalia’s logic is particularly nonsensical given his own prior opinions, like this one from a 1995 speech that Politico dredged up to demonstrate the justice’s Cirque-de-Soleil-caliber backflip: “To talk of legislative intent is, from the outset, ridiculous.”

The Washington Post tears into Scalia in an editorial:

This is a stunning line of argumentation. Congress is empowered to write legislation enforcing the Fourteenth and Fifteenth Amendments. But if Justice Scalia doubts the purity of lawmakers’ motives, then apparently this power is limited. We wonder how the justice is able to discern what lay within the hearts of these 98 senators. We also wonder how many challenged acts of Congress would survive if the court saw fit to strike down any that were enacted by lawmakers considering, in part, their reelection prospects.

Liberal columnist Dana Milbank drags out the old (and, given the typical liberal enthusiasm for loose constitutional interpretation, purely opportunistic) complaint of judicial activism, writing that “Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.” The New York Times editorializes that, “If the Supreme Court substitutes its judgment for Congress’s, it will enable state and local governments to erode nearly half a century of civil rights gains.” The funny thing is, the left is usually pretty comfortable with the courts substituting their judgment for Congress’s; see the NYT editorializing, in the context of the Defense of Marriage Act, that Congress’s will should be rejected as unconstitutional. (Incidentally, conservatives also see a contradiction between Obama’s previous position that marriage should be left to the states and the administration’s brief in another gay marriage case, in which it holds that states cannot bestow “everything but the name” rights on same-sex couples without permitting marriage. I’d say this “evolution,” as Obama might say, is admirable, and at any rate, his personal views were never a legal brief. The administration does not, as many Republicans claim, go as far as claiming a constitutional right to national same-sex marriage.) It’s not the idea of judicial activism that bothers liberals; it’s conservatives’ highly selective denunciation of it. They don’t necessarily object to the principle until they find it useful to invoke the right’s own arguments against it. Liberals easily forget that in countless other cases, activism is praised as advancing social justice. Hypocrisy is the issue here, they claim. Suddenly, deference to Congress — the same Congress that can’t be trusted with other civil rights matters, like DOMA — is of utmost importance. Writes the New York Times, “We hope the justices recognize the broader truth that the Constitution does not tolerate denying gay people the right to wed in any state.”

For both sides, then, judicial activism is simply code for decisions they don’t like. When the ruling works in either side’s favor, the court is merely enforcing the Constitution, not legislating from the bench. When the Affordable Care Act was before the court, conservatives argued that “A court is doing its duty, not legislating, when it strikes down an unconstitutional law.” In the latest case, National Review purports that it’s “hardly judicial activism” to overturn a section of the Voting Rights Act it sees as based on outdated statistical and demographic information that Congress failed to update for the 2006 renewal.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text. Indeed, upholding it would mean ignoring constitutional text and would thus be true judicial activism.

Another post on the NR blog consists solely of “Reminder: it’s not judicial activism when the law is unconstitutional.”

Doesn’t that beg the question? The debate is not about whether courts can overturn unconstitutional laws; even conservatives who rail against unrestrained, unelected judges would agree as much. The debate, rather, is about whether it’s unconstitutional to treat states differently in pursuit of a patently constitutional goal: carrying out the 14^th and 15^th Amendments. The provision’s constitutionality is where you must start your argument, not end it. It’s funny how neatly NR’s definition of “unconstitutional” tracks with “everything conservatives dislike.” Overturning a law despised by the right is never judicial activism, but any ruling that disturbs its pet causes, like forcing women to carry unwanted pregnancies to term, automatically fits the bill. Ergo, overturning DOMA would be judicial activism, a hideous usurpation of the power of Congress to protect the valuable institution of child-producing marriage, but overturning Section 5 would just be respecting the Constitution. Despite the fact that the constitutionality of both laws hinges on an alleged violation of equal protection – unjustly treating one class of people (gays) or one subset of states (the South) differently from another – the court should in one case defer to the wishes of Congress and in another take matters into its own hands, as the issue is too important to leave up to mere mortals.

The knife cuts both ways, of course, as liberals would also like to see one law (DOMA) overturned and the other (Section 5) upheld. Though judicial activism has historically supported the liberal goals of equality social justice, from the civil-rights era decisions of the Warren court to rulings on defendants’ rights, the court’s rightward slide under Rehnquist and Roberts means the shoe is suddenly on the other foot. Unlike conservatives, they at least don’t noisily decry the practice until it’s advantageous to embrace it, though they do generally accept it until they can use it as a cudgel against opponents. Thus Dana Milbank, who probably doesn’t have a problem with the court making hash of laws he dislikes, can suddenly cite deference to Congress as a virtue. The left is less bothered by judicial activism itself than by conservative flip-flops on its merits. That’s why the entire cry of “judicial activism” itself is so tired and useless; it’s only applied to judicial acts each side disagrees with. Better to debate the case on its merits, where I believe the left has the better case. While I’m sympathetic to the narrower objection that the formula by which the areas required to apply for pre-clearance are determined hasn’t been updated since the 1972, sending Section 5 back to Congress for revision would, in this age of gridlock, be tantamount to killing off the provision altogether. Scalia may be right that members of Congress are loath to take a stand against something as iconic as the Voting Rights Act, but they would have little compunction about letting an update to an obscure provision languish permanently in committee. Without the higher standard of pre-clearance, which puts the burden on the state to defend its voting procedures against charges of discriminatory effects, plaintiffs would be forced to demonstrate that the state’s changes were intended to disadvantage minorities — a harder bar to clear, and a prohibitively expensive one in terms of lawsuits. The effect would be to leave voters in previously covered states without protection just as conservatives are ramping up the voter ID laws and roll-purges that began in 2012.

Some on the left — New York Times columnist Charles Blow, the editors at Bloomberg View — have advanced the unlikely scenario of a reworking of Section 5 that would eliminate its disparate impact on Southern states not by killing the provision but by expanding it to cover the entire country. As Bloomberg points out, some of the worst voter suppression tactics of the 2012 election occurred in Pennsylvania, which is not subject to the pre-clearance requirement. Write the editors:

[T]he court could take a more universal view of voting rights, including but not limited to the issue of racial discrimination. Problems with registration procedures, poorly trained poll workers, inadequate voting hours, accessibility and other factors impede voting for millions of Americans across many states. Some of these problems may be rooted in racial discrimination. Many others are not. All have the effect of undermining the right to vote . . . .

So maybe the question isn’t whether it’s time to end the federal government’s special oversight of the South. It’s how to extend that level of attention to the whole country.

This would address Justice Roberts’ pointed questioning, during oral arguments, whether it is “the government’s submission that the citizens in the South are more racist than the citizens in the North?” as well as his previous concern, during a similar case in 2009, that the 35-year-old coverage formula has led to a country in which “the evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance.” Charles Blow notes that much has changed since the 1960s, when blacks were the largest minority group; today, Hispanics and Asians make up a growing portion of the electorate, and are obviously “geographically dispersed differently.” Blow writes that “We not only need to keep Section 5 in place, we also need to consider expanding it so that every voter has fair and equal access to the ballot.”

My knowledge of the technical and legal matters at stake in the latest case (officially, Shelby v. Holder) is admittedly thin, but at least the logic of the left seems more internally consistent than the flip-flopping on what constitutes “activism” by the right. I see a common thread, not a contradiction, in the liberal positions on civil rights and gay marriage. By rejecting DOMA and preserving Section 5, the court protects citizens against discrimination, and protecting the rights of gay couples and minorities to be treated fairly takes precedence over protecting the “rights” of states to be treated identically despite their divergent histories of poll taxes and racially-motivated redistricting. Conservatives, on the other hand, would argue that, though the court should have no role in protecting individuals from discrimination, it should nevertheless step in and protect states from discrimination. Suddenly, the GOP has found an equal-rights policy it can get behind! If corporations are people in the Republican worldview, perhaps states are better than people.

When the Supreme Court hands down its ruling, one side will undoubtedly applaud the justices for respecting the Constitution, whether it demonstrates that respect via judicial activism or judicial restraint. A country that divided closely down the middle in November 2012 responds in similar fashion to any political act — and every Supreme Court decision, despite John Roberts’ insistence that “umpires don’t make the rules, they apply them . . . it’s my job to call balls and strikes and not pitch or bat,” is inherently a political act. Scalia is hardly playing the role of a neutral umpire when he speaks of “racial entitlement,” and Sotomayor is equally as opinionated when she essentially argues the government’s brief better than the solicitor general himself. What the court decides, and how Congress reacts, will determine how many safeguards remain for the ultimate political issue: the right to vote.

The Hat That Gave Obama The Finger

Why is Antonin Scalia taking fashion cues from a Renaissance saint? Read on to find out.

Supreme Court Justice Scalia is no stranger to injecting politics into new realms, and he established a fresh high-water mark at yesterday’s inaugural ceremony. Supreme Court decisions have always been political, of course – see Roe v. Wade – but Scalia has long taken politicization to new heights, as in his dissent in a June 2012 immigration law case, which he chose to read in full from the bench. Far from addressing the matter at hand, he veered into a caustic critique of the Obama Administration’s immigration policy in general, in what was widely seen as a swipe at a president he evidently thinks very little of. “After twenty-five years on the Court, Scalia has earned a reputation for engaging in splenetic hyperbole—but he outdid himself this time,” wrote Jeffrey Toobin at the time. Toobin explained:

His opinion . . . ranged over several contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama recently used an executive order to accomplish some of the goals of the DREAM Act, and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.)

The Times reported that “commentators from across the political spectrum have been saying that Justice Scalia, who is the most senior as well as, hands down, the funniest, most acerbic and most politically incorrect of the justices, went too far.” Too far, as well, in citing slavery-era laws to defend his position, as if harking back to the “good old days” when minorities knew their place and stayed in it. Conservative appeals court judge Richard A. Posner opined in Slate that “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The Washington Post editorialized against the screed, writing that the justice’s “partisan discredit to the court” made a mockery of the presumption that “five Republican-appointed justices and four Democratic-appointed ones pass judgment in a way that impresses most Americans as an act of law rather than politics.” Scalia’s intemperance and willingness to take on issues, like the president’s temporary reprieve for illegal-immigrant children, that could someday come before the court “endanger not only his jurisprudential legacy but the legitimacy of the high court.”

It’s no secret, then, that Scalia disagrees with Obama a healthy 100 percent of the time. It surely rankled him that, in the Monday speech, Obama said that “our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity, until bright young students and engineers are enlisted in our workforce rather than expelled from our country.” Scalia has long expressed disdain for the president and his policies, sputtering during arguments over the constitutionality of the Affordable Care Act that being forced to read the entire 2,700-page legislation would be “cruel and unusual punishment.” (That’s quite a high bar to clear, considering the justice doesn’t consider even the death penalty “cruel and unusual.”)

But it seems Justice Scalia took his spite to new heights at the inauguration when he donned the funny-looking hat in the photo at left. At first, no one was sure what was up. The Hill said it “appeared to have been taken straight out of a Shakespeare play,” and others compared its bizarreness to Aretha Franklin’s similarly panned headgear from the 2009 inaugural. It garnered much attention on Twitter, even drawing running commentary from Senator Claire McCaskill, who snarked four years ago about another strange Scalia toque (this one a peaked-corner cap) about “Scalia’s weird hat” and tweeted this year:

Ok. Men of the Supreme Ct.Breyer’s scaliawannabehat, Kennedy’s stocking cap.And then there’s Alito in the shades.

— Claire McCaskill (@clairecmc) January 21, 2013

Others in the Twitterverse suggested it was “one of those ROOTS berets from the 2002 Winter Olympics” or wondered “Why is Antonin Scalia wearing a renaissance era painter’s hat?” and introduced the hashtag “#StealingArethasThunder.” Esquire’s Tom Junod weighed in, “Scalia in that hat: the mad medieval monk, fresh from illuminating a biblical manuscript and torturing heretics.”

It eventually emerged that the headgear was a gift from the Thomas More Society, a conservative law firm dedicated to overturning abortion-related laws. The hat is a replica of the one More wears in Hans Holbein’s famous portrait. (For what it’s worth, this is the benefit of art history courses: My first thought, upon seeing the hat, was, “Wow, that looks like something out of a Holbein painting.” Of course, it helps that More and Scalia are both jowly, serious-looking white guys.) Scalia is a regular attendee at the Society’s annual Red Mass, a Catholic service and awards ceremony for religious-minded lawyers and government officials. The Society claims its mission is ” to restore respect in law for life, marriage, and religious liberty” through pro-bono legal work that aids clients challenging everything from government restrictions on “religion in the public square” to laws curbing protests outside abortion clinics or prohibiting discrimination against gay people.

Portrait of Thomas More, by Hans Holbein (1527)

The organization is named for Thomas More, the English lawyer whose opposition Henry VIII’s attempt to coerce the Catholic Church into approving his divorce from Anne Boleyn cost him his head in 1535. Today, More is glorified on the right as a champion of religious liberty. ”I am the King’s good servant – but God’s first,” he supposedly said just before his execution. Recently, the Society’s biggest crusade has been against the “contraception and abortifacient” mandate in the Affordable Care Act. (Medical professionals point out that emergency contraception is not the same as the abortion pill, and many scientists doubt the alleged effects of the morning-after pill on an implanted egg.)

It beggars belief that Scalia simply grabbed the nearest hat in his closet; far more likely is that the man who is so outspoken in his disregard for Obama’s policies chose, when required to attend an event at which he was denied a speaking role, to telegraph that disdain via his wardrobe. Does Scalia see himself as a modern-day Thomas More, staunchly defending religious liberty against the creeping secularism of the ACA and the Democratic Party in general? Or was he simply venting his anger at having to serve as a silent showpiece at the inauguration of a president of whom he disapproves? On the website of the conservative religious journal First Things, Matthew Schmitz wrote:

Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will.

Scalia doesn’t do well with serving as a prop or bestowing what he might see as a legitimizing presence on a message he does not endorse. He has not attended a State of the Union address since the mid 1990s, and Clarence Thomas is often a no-show, saying “it has become so partisan.” (Pot, meet kettle.) The conservative justices were reportedly steamed when the President, during his 2010 State of the Union address, explicitly challenged the Court’s decision in the Citizens United case, saying it “reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Justice Alito mouthed “not true,” and other justices complained at the unseemliness of being forced to sit quietly as the head of one branch of government excoriated the independent decisions of the highest members of another. Later, John Roberts would say, “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling.” Conservatives slammed Obama’s remark — Utah Sen. Orrin Hatch called it “rude,” and conservative law professor Randy Barnett griped that it constituted “an act of intimidation” — and even the Post admitted that “legal experts said they had never seen anything quite like it, a rare and unvarnished showdown between two political branches during what is usually the careful choreography of the State of the Union address.”

 So it’s not far-fetched to assume that Scalia felt his forced attendance at the inauguration was a similar attempt to co-opt the court into at least appearing to lend tacit approval to the content of Obama’s speech. He was able to shrug off the invitation to the State of the Union, but breaking with tradition to stay away from an event as big as the inauguration was apparently too partisan even for Scalia. So he punched the clock, put in his half-day, and tried to signal his dissatisfaction with the whole misbegotten liberal experiment with his passive-aggressive choice of headgear. Whatever Obama had to say, Scalia certainly knew he wouldn’t agree it — and indeed, the president’s progressive conviction that “preserving our individual freedoms ultimately requires collective action” runs counter to the justice’s individualistic, originalist philosophy. And Scalia certainly knew that a president inclined to celebrate the rights of women and minorities would not be delivering a message he wanted to even appear to endorse.

Obama made history when he became the first president to use the word “gay” in reference to sexual orientation in an inauguration speech: “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.” By contrast, Scalia couldn’t care less whether laws treat gay people as equal Americans; in fact, he thinks such laws actually violate the rights of those whose religious beliefs proscribe homosexuality. He dissented from the 2003 Lawrence v. Texas decision that overturned that state’s ban on sodomy, which had effectively criminalized gay sex. At the time, he accused the court of having “largely signed on to the so-called homosexual agenda” and bemoaned the elimination of “moral opprobrium that has traditionally attached to homosexual conduct.” Overturning laws against gay sex would ultimately lead to a panoply of evils, including bigamy, “adult incest,” and “bestiality.” Classy. (At least we don’t have to wonder how he’ll vote on the two cases concerning same-sex marriage now on the court’s docket.)

Justices Thomas, Sotomayor and Kagan listen to the National Anthem. Scalia stands by looking peeved.

Given the justice’s long history of opposition to women’s rights on issues like abortion and equal pay, as well as his disgust for affirmative action policies that benefit minorities, it’s no surprise that he chose to deliver a silent, sartorial rebuke to a president whom he views as an overreaching, even Constitution-bending liberal ideologue. Scalia’s association with the Thomas More Society is well-known, but by aligning himself so blatantly on inauguration day with the organization dedicated to overturning “Obamacare” and to fighting the mandate for employers to provide their workers health plans that cover contraception, he leaves little doubt how he will vote should a case like that of Hobby Lobby, a company whose evangelical owners object to the mandate and whose case is still working its way through federal courts, ever come before the Supreme Court. Over 40 cases are pending at various levels of the judicial system, and it’s likely that at least a handful will be decided in time to make the highest court’s docket for its fall term. The Society recently defended Illinois’ Tribune Health Group in a suit that sought an injunction for “temporary relief from t he federal HHS mandated healthcare coverage of abortifacients, sterilizations, and contraceptives.” Considering how gingerly justices approach issues that might come before the court – see the ritual dance around the abortion “litmus test” during confirmation hearings – it’s striking that Scalia decided a gift from a potential litigant before his bench was appropriate headgear for the inauguration of the man whose government that litigant will be suing. At the time of the immigration dissent, commentators opined that Scalia had “jumped the shark here” and that he “had a tin ear,” behavior that seemed on full display in Washington on Monday. Unlike that dissent, the obscurity of the hat’s origin and the general furor of the inauguration (Michelle’s dress! Beyonce’s lip-syncing!), it can’t be said that it raised eyebrows beyond the short burst of interest on Twitter.

Scalia’s act of protest wasn’t as obvious or loud as the anti-abortion zealot yelling “What about the babies?” from a tree on the Mall  But the hat nevertheless amounted to a giant “f-you” to the 44^th president of the United States. All in all, it was a typically low-class way for the irascible Scalia to start Obama’s second term.

#SCOTUSHumor for a Dreary Day

These may be collector’s items after Thursday

Another Monday, another missed chance for the Supreme Court to rule on health care reform. The verdict is now due Thursday, except in the prolong-the-agony scenario in which “the justices decide to punt it over until next year — an outcome that is possible, although thought to be unlikely,” according to Wonkblog’s Sarah Kliff. I have no intention of writing anything long about the fate of the Affordable Care Act, as I will vomit if I have to read one more boilerplate anticipatory article (WaPost: “Everything You Need to Know About ObamaCare and SCOTUS in One Post,” NYT:”Wearing Brave Face, Obama Prepares for Health Care Ruling,” Politico: “A Viewer’s Guide to the SCOTUS Health Care Ruling“), let alone write one. The world does not need another “11 Facts About the Affordable Care Act.” Besides, the constant barrage of coverage has left my wonky, liberal-crusader nerves raw. Perhaps it’s silly to care so much about a 2,700-page law, but in this case even more than usual, the political is personal. I’m feverishly protective of the legislation not only because I believe universal health care is a moral imperative but because I am loath to see President Obama’s signature achievement invalidated.

There’s also not a lot for me to say about the decisions that the Court did hand down today, as I don’t really have a dog in any of those three fights. The ruling on Arizona’s immigration law was unexpected but satisfactory, as it threw out S.B. 1070’s most punitive measures and reaffirmed the supremacy of the federal government while allowing state police to continue common-sense checks of arrestees’ immigration status. The Court’s rejection Montana’s challenge to Citizens United was expected but equally satisfactory, as I’m one of those old-school First Amendment absolutists who believe, contra current conventional Democratic wisdom, that freedom of speech shouldn’t be held hostage to anti-corporate outrage. The 5-4 ruling against mandatory life sentences for juvenile offenders was perhaps the most surprising (in a good way), though I have to wonder how a court that finds life-without-parole to be “cruel and unusual” doesn’t feel the same way about the death penalty’s state-sanctioned killing. Today’s most interesting interlude had little to do with the substance of the rulings, and came in the form of Justice Scalia’s dyspeptic and tangential rant against Obama’s recent decision to spare illegal immigrants under age 30 from deportation. Scalia cited the President’s remarks to the media about the policy switch being “the right thing to do,” leading Slate commentator Dahlia Lithwick to observe tartly that the justice had expressed “perhaps the first originalist reading of a presidential press conference.” Salon’s Glenn Greenwald tweeted that “What’s so ironic about Scalia is he’s 1) the loudest complainer about Court politicization & 2) the most politicized Justice in a long time.”

Come Thursday, I will join the 50,000 court-watchers waiting on tenterhooks before their computer screens, willing Scotusblog’s live feed to update and having my last nerve shredded by the constant doors-slamming sounds of the live blog. (What tech moron decided that clicking noise was a good idea, anyway?) For now, I thought I’d do a roundup of the lighter reactions to Monday’s announcements. The Washington Post’s Fix blog collected “the best SCOTUS tweets of the day,” including the following:

I don’t agree with John Podhoretz on much, but I liked this:

The Fix missed some of the best ones, however. From some of my own favorite (mostly left-wing) folks on Twitter:

Mitt Romney refused to say whether he supported the Arizona decision, leading to a comedic exchange between his spokesman and the media accompanying him on a chartered jet specifically for the purpose of hearing his reaction to a ruling on “Obamacare.” Though eager for the press to act as a stenographer for his potential post-ACA triumphalism (planned commentary: “I told you so”), he clearly didn’t feel his gaggle of reporters should be allowed to report on his noncommittal dance around S.B. 1070’s constitutionality. A sampling of what Politico called the “lengthy exchange”:

QUESTION: So does he think it’s wrongly decided?

GORKA: “The governor supports the states’ rights to do this. It’s a 10th amendment issue.”

QUESTION: So he thinks it’s constitutional?

GORKA: “The governor believes the states have the rights to craft their own immigration laws, especially when the federal government has failed to do so.”

QUESTION: And what does he think about parts invalidated?

GORKA: “What Arizona has done and other states have done is a direct result of the failure of this president to address illegal immigration. It’s within their rights to craft those laws and this debate, and the Supreme Court ruling is a direct response of the president failing to address this issue.”

QUESTION: Does (Romney) support the law as it was drafted in Arizona?

GORKA: “The governor supports the right of states, that’s all we’re going to say on this issue.”

QUESTION: Does he have a position on the law, or no position?

And so on, for another thirteen questions and “answers.”

Just reading the transcript is exhausting. Mother Jones reporter Adam Serwer condenses:

As a side note, I’m not sure why Romney and his press flaks weren’t more prepared for questions about the Arizona ruling. Yes, the Republican candidate has been evasive to the highestdegree about his positions on everything from immigration to tax reform, but it’s not as if he wasn’t expecting the Supreme Court to rule on the issue. Given the fact he knew the decision was coming this Monday, Wednesday or Thursday, how hard would it have been to come up with some substantial talking points by Sunday evening? Heck, he needed only to look to Indiana Senate candidate Richard Murdock, who inadvertently jumped the gun last week when he released four video responses to SCOTUS’s health care decision — one for every possibility, from partial invalidation to outright rejection. Oops. The pre-taped statements garnered heaps of ridicule (is Mourdock’s schedule really so packed with VIP events that he’ll be unavailable to comment in real time?), including a mention on Comedy Central’s “Colbert Report,” where the host joked that “[t]he United State Supreme Court has done what none of us expected: The mandate has been struck down, there’s been another recount, and George Bush is president again.” Mourdock may suffer from an inflated ego, but perhaps his strategy would have been a good one for Romney to adopt.

But I digress. Returning to the Twitter feed, a humorous take on the Citizens United decision:

Jonathan Cohn of The New Republic reacts to the three-day delay:

Other gems:

From Fix blogger Chris Cillizza himself:

By far the best Tweet of the day, if by “best” you mean “makes me want to put my head down on the desk and weep.”

For humor in fewer than 140 characters, it’s hard to beat Twitter. Still, the ritual reading of tea leaves preceding any Supreme Court decision makes for amusing reading, as well as for some unintentional hilarity. Court-watchers grasp for the slightest clues about the upcoming ruling, despite the fact that the justices rarely (if ever) tip their hands and the army of SCOTUS clerks produces fewer leaks than the CIA. Recently, the process has been messy and filled with enough strained logic to make it less a decorous reading of tea leaves than a frenzied, gather-round-the-campfire reading of animal entrails. Innocuous public remarks from the justices take on loaded meaning; as Politico reported,

When Justice Elena Kagan joked last week that a ruling she’d written on an Indian tribe-related case was “Maybe not what you’ve all come for today,” some took it as a sign that the court’s liberal wing was in a relaxed mood that might signal a decision to uphold the health care law.

At Slate, former Acting Solicitor General Walter Dellinger mused that Justice Scalia’s diatribe against the Obama administration’s immigration policy may have provided a hint. Dellinger interpreted the Arizona ruling as a major win for the government, writing: “And that is why Justice Scalia is so upset. (Unless … he is being anticipatorily mad about what may happen on Thursday. You think?)”

Well, I could think that. But thinking doesn’t make it so.

Numerous observers have homed in on the seeming likelihood that Justice Roberts will write the majority opinion on ACA. Disregarding the inconvenient fact that Roberts’ authorship is hardly assured in the first place — the assumption rests on the theory that, because Kennedy wrote the bulk of the ruling against S.B. 1070, the responsibility for health care will fall to Roberts — it’s difficult to ascertain exactly what a Roberts-penned decision would mean. Ezra Klein wagers a guess, then offers a caveat:

One theory holds that it points towards a favorable ruling for the administration. If the conservatives had had to entice Kennedy to their side, they would have had to give the ruling to Kennedy to write. But if Kennedy joined the liberals to uphold the law, Roberts would also flip sides so he could write a ruling that imposed some kind of limiting principle on the Commerce Clause Act.

Or maybe Kennedy is with the conservatives and Roberts is simply the guy writing the ruling. Or maybe someone who is not Roberts and also not Kennedy is writing the ruling.

Republican Senator Mike Lee, who previously clerked for Justice Alito, interpreted the matter differently, explaining that Roberts had seemed unpersuaded by the government’s case during oral arguments. As he told the conservative Washington Examiner, “if we could be certain as of this moment that Chief Justice Roberts was the author of the majority opinion of the Court, I would say that would make it substantially more likely – that would be a strong indication – that it is going to be declared unconstitutional.”

However, anyone presuming to know the minds of nine complex, over-educated justices should heed the following warning from the Washington Post:

Of course, even the idea that Roberts is writing the majority opinion comes from what might best be called informed speculation, and should be tempered with the only truly immutable rule about the Supreme Court, a doctrine called No One Really Knows.

As we grind toward Thursday and disguise nervousness with humor, what are the folks at the Supreme Court doing? Proofreading, according to the National Journal, which reports that  the court enlists “professional legal editors review the text to check for style and ensure that all the case citations are correct.” The article cites a former clerk to Justice Kennedy who remarks that “It would be really surprising if there would be changes at this point — we’re three days away. It’s not like they’re changing their minds about how they are going to vote.”

That’s a relief, I suppose. I wouldn’t want the most major decision in recent Supreme Court history — and quite possibly John Roberts’ defining act as Chief Justice — to come down to a couple of coffee-fueled, procrastination-impaired all nighters. That may be how I wrote papers in college, but it’s no way to write a Supreme Court opinion. Still, one can hope that an undotted “i” or an uncrossed “t” sneaks past the proofreaders.

It will certainly make for better Twitter reading come Friday morning.

Who Killed Compassionate Conservatism?

Stick a fork in compassionate conservatism, because it’s done. The Bush-era formulation was always more of a marketing device than an actual philosophy — just ask New Orleans about that vaunted compassion — but the past few months have been particularly cruel. Already on its last legs, Republican compassion took a serious hit in the September 12 primary debate, when the crowd seemed to cheer the prospect of an uninsured 30-year old dying on the street. Ron Paul, who denounced the “welfarism and socialism” of government-sponsored health care and maintained that “freedom is all about taking your own risks,” was asked by host Wolf Blitzer whether “you saying that society should just let him die.” The audience erupted into cheers and shouts of “yeah!”

Coming on the heels of a debate in which the audience jeered a gay soldier and cheered at the mention of the death penalty, this was perhaps not a surprising reaction. Viewers shaking their heads at home could at least chalk up the response to an auditorium packed with Florida Tea Party members. But blaming the lack of empathy on the redneck wing of the GOP will only get you so far, as last week’s Supreme Court arguments over the Affordable Care Act demonstrated. Discussing the unique nature of the health care market, Solicitor General Donald Verrilli pointed out that, unlike car insurance, everyone will eventually consume medical services — and, insured or not, those people will at least receive emergency treatment. Take a look at the following exchange between Verrilli and Justice Scalia:

Verrilli: In the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.

Scalia: Well, don’t obligate yourself to that.

Yes, Justice Scalia — that’s the sort of America I want to live in, one in which the definition of “liberty” is the liberty to let the indigent die at the emergency room door. Why, in this land of absolute individual freedom, should a hospital feel any obligation to treat an uninsured gunshot victim or assist in the birth of a homeless woman’s baby? No matter how tongue-in-cheek Scalia’s impudent response, it betrays not only a lack of compassion but a lack of respect for the basic social contract. Government is not the only institution built on the human willingness to care for one another; libertarianism, if taken to the extreme, undermines the fabric of civilization itself. Even primates display altruistic characteristics, to say nothing of medical students supposedly binding themselves by the Hippocratic Oath.

Andrew C. McCarthy, writing in the conservative National Review, puts an even more apathetic twist on Scalia’s objection to basic humanity. McCarthy’s take is particularly sinister because he is completely serious, with none of Scalia’s cynical wit. For a party that trumpets itself as the defender of moral values, McCarthy is astoundingly amoral. Responding to Justice Kennedy’s assertion that the individual mandate changes the relationship of citizen to government “in a unique way,” McCarthy writes:

But how unique, really, is the Obamacare mandate? Assuming we are still a free society, of course it is offensive for government to coerce citizens into buying health insurance. But is it not equally offensive for government to coerce private hospitals to treat patients for free? . . . . In the law, a contract is a voluntary bargain. What we’ve tolerated for a very long time, however, are adhesive arrangements of involuntary servitude. The law’s usual word for that is extortion.

Extortion in the health care market is apparently “our longstanding, bipartisan, Big Government condition.” McCarthy advocates a return to something he calls “free-market health care,” which I can only assume refers to the vaunted 19th century tradition of abandoning the poor to outbreaks of typhus and cholera while the rich barricaded themselves in the relative sanitation of their mansions. McCarthy believes the federal government should stay out of health care altogether:

If people at the state or local level think everyone should be entitled to emergency medical care, that’s fine — they ought to raise taxes and pay the hospitals to provide it. If they think sick or high-risk patients who can’t get affordable private medical insurance ought to have their treatment paid for nonetheless, they ought to raise taxes to pay for that, too. It is great to be noble, but it’s not noble to throw around other people’s money.

I can picture it now: If you’re counting on an open-door policy at the ER, make sure you live in a blue state. Texas, Alabama, Mississippi — all those low-tax, anti-entitlement red states won’t be coddling residents with free emergency treatment. What, I’d like to know, is the Republican obsession with “other people’s money”? Witness Rick Santorum announcing that he doesn’t want to “make black people’s lives better by giving them somebody else’s money” (or, as he later claimed, “blah people’s lives). See the Wall Street Journal denounce the “lucky duckies” who are too poor to pay income taxes and thus supposedly live on other people’s dime.

If the Catholic Church, whose hospitals have a long-standing commitment to providing charity care, thinks it’s doing itself any favors by allying with the Republican Party on issues of contraception and gay marriage, it should take a look at McCarthy’s opinions. I see little evidence of “love thy neighbor as thyself” in his writing. This is a party that claims to love American exceptionalism and speaks ad nauseum about the shining city on a hill, yet dismisses the value of compassion with lines like, “It’s great to be noble,but.”

Antonin Scalia and the National Review are not fringe, Birch Society-type elements of the GOP. They’re not even as radical as Ron Paul. But if this is what passes for mainstream conservative thought, I can hardly imagine — or, rather, I can too easily imagine — what Glenn Beck and Andrew Breitbart’s followers will come up with next. The only lighthearted note in Andrew McCarthy’s jeremiad against the evils of socialized medicine comes at the very end, when an Onion-worthy footnote informs us that “Andrew McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.”

Really, at this point, is it better to laugh or cry?