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the court has had it in for Section 5 for years, holding that the formula by which covered districts are determined is outdated, and by the looks of it they may finally get their target.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.

Only You Can Prevent Dictionary Abuse

Think grammar is for fuddy-duddies, dictionaries are only used by people who can’t grasp Wikipedia, and the difference between “its” and “it’s” will never change your life? Well, you may be right. But don’t write off the nuances of the English language just yet. Or at least read this Atlantic piece from Garrett Epps (whose work you should always read, and not just because he happens to be the father of my childhood best friend) before you do. Writing about the recent circuit court decision that invalidated President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, Epps describes exactly how the justices came to their decision — and how another panel of judges came to one precisely the opposite. It’s a case study in the continued relevance of words and their meanings.

The ruling by the D.C. Circuit Court of Appeals was sweeping; it went beyond simply rejecting the president’s power to appoint officials during “pro forma” (read: fake) sessions of the Senate, a power which Obama had used to install nominees that Republicans, hostile to the sheer existence of the labor board and the consumer bureau, refused to confirm. Instead of ruling narrowly, the justices tackled a question that hadn’t even been asked, and decided that the Constitution not only prohibits the president from appointing officials when the Senate is officially in session (and thus ostensibly able to carry out its duty to “advise and consent”) but also limits appointments to the single recess between congressional sessions, theoretically invalidating hundreds of years of appointments that occurred during inter-session breaks. Going even further, the court ruled that the positions in question must actually come open during the recess; the president can’t use a break to fill previously vacant posts. Though this all sounds like ivory-tower thought games, it has real world consequences: If you’re a homeowner trying to get a mortgage, the disclosure requirements laid out by the CFBP are now up in the air. If you want to take your boss to court for stinting on your paycheck or sacking you for an errant Facebook post, your case may now rest on fuzzy laws.

So where does good English fit into all this? As Epps writes, it all hinges on the word “the.” The clause in the Constitution allowing recess appointments dictates that”[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate.” The D.C. Circuit is stacked with justices who, in the strict originalist mold of Antonin Scalia, make decisions by parsing every word and intention (no matter how ultimately unknowable — really, what would Thomas Jefferson have thought of violent video games?) of the Founders, and they wondered: Does the word “the” in “the recess” restrict appointments to “the one and only recess between sessions of Congress? How did the justices decide? They consulted 1755 edition of Samuel Johnson’s Dictionary of the English Language, whose entry for “the” is short and sweet: “The, article, denoting a particular thing.” Epps explains:

“The recess of the Senate,” therefore, must mean one and only one “recess” per Senate — the unique one between sessions. To any living speaker of English, the word “the” can also denote one instance of a recurring but definite phenomenon. Thus, for example, when someone speaks of “the hours of darkness,” very few of us would interpret those words as referring to the one night of the year when darkness would be longest.

Yes, making monumental legal decisions by thumbing through a period dictionary does seem like a cop out. It is indeed too clever by half. But the truly ridiculous thing is that another court, the 11th Circuit, also used a dictionary — a different dictionary — in 2004 to draw a completely opposite conclusion about the recess clause. Epps again, writing about the 11th Circuit case:

In Evans v. Stephens, that panel wrote, “We do not agree that the Framers’ use of the term ‘the’ unambiguously points to the single recess that comes at the end of a Session.” It drew its evidence from the Oxford English Dictionary.

OED, written over the past century and a half,is the most complete historical dictionary of the language ever assembled; it draws on examples of usage dating back before 1000 C.E. Its entry on “the” is nearly 10,000 words long (Johnson’s, remember, is six). Here’s the relevant language: “Referring to a term used generically or universally,” as in “the pen is mightier than the sword,” or “with names of days of the week, as on the Monday, i.e. on Monday of any or every week, on Mondays generally.” The entry includes examples of that usage going back to 1340.

Why was the OED not good enough for the D.C. Circuit? Because, it seems, the OED — which has been cited by faithful Supreme Court originalists for decades when it suits them — is a “modern dictionary.”

And you thought that dictionaries were going the way of the phone book!

Epps sees a greater problem here than overuse of reference materials. The contrast between the decision only highlights the flaws in the rigidity of the originalist cause. There is a certain nonsense and refusal to deal with the world as it is in “the idea that one judge can somehow know the ‘real meaning’ of a provision enacted centuries ago, in a world as alien to ours as Narnia.” He continues: “Evidence from the period when a constitutional provision was framed is always relevant to a judicial decision. But so are subsequent caselaw, interpretation by other branches, and simple practicality.”

It turns out, however, that the dictionary has a certain pedigree in the judicial system. Courts have been relying on the old door stop stand-ins for years. An amusing New York Times article from two years ago describes the proliferation of dictionary-reliant Supreme Court decisions:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

To cite the example in the Times’ lede, Chief Justice John Roberts used five dictionaries to examine the nuances of the word “of” when he pondered over a patent case. In 2011, to find a precise definition of “prevent,” Stephen Breyer turned to none other than the OED, and in 1995 staunch originalist Clarence Thomas looked up the word “commerce” in three dictionaries — from 1773, 1789 and 1796 — as he puzzled through what the framers may have been thinking.

The article notes that Learned Hand, who is “widely considered the greatest judge never to have served on the Supreme Court,” did not have kind words for dictionary thumpers, writing in 1945 that:

It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Lexicographers are not huge fans of this development either, and it’s not hard to see why. “The justices have cited more than 120 dictionaries, which is suggestive of cherry picking,” the Times writes, and quotes the editor- at-large of the OED as saying, “It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in.”

How true.

Language-lovers and grammarians fighting against the perceived irrelevance of their field may be heartened by such evidence that dictionaries really are a Higher Power. But like all magical instruments, from the Force to the wand wielded by Harry Potter, they should only be used for good, never evil. I’d like to plaster a bumper sticker on the cars of the D.C. Circuit Court members that reads “End Dictionary Abuse!” And I would certainly classify overturning centuries of precedence and infringing on reasonable executive powers as abusive.

It’s enough to make you wish that judges only cracked the Webster’s for benign purposes, like differentiating between, oh, say, “loath” and “loathe.” Because, in a delightful twist of irony, The New Republic reports that the D.C. Circuit’s decision used the wrong form, writing that “We are loathe to overturn the credibility determinations of an ALJ unless they are ‘hopelessly incredible, self contradictory, or patently insupportable.'”

Now that is what a dictionary is good for.

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.

Would You Prefer That Kool-Aid in Cherry or Strawberry?

Kool-Aid Man, the new GOP mascot (image via Wikipedia)

The Times reported yesterday that the Republican response to the Supreme Court’s decision on health care was closely orchestrated by the Romney campaign. Michael Shear writes that, mere seconds after the ruling was handed down, Romney’s policy director “sent an e-mail to about three dozen senior Republicans on Capitol Hill and in state attorneys general’s office” that “unleashed a public relations plan that was nine weeks in the making and designed to make sure that the Republican response to whatever the court decided served Mr. Romney’s presidential ambitions”:

“Please stand by. Reviewing. Will circulate answer,” the e-mail, sent at 10:17 a.m. said in part.

Minutes later, at 10:27 a.m., Mr. Chen sent another e-mail: “Go with upheld.”

Shear describes the three scenarios — one in which the law was upheld entirely, one in which it was overturned, and one in which the verdict was mixed — gamed out in the Boston headquarters. For each, standard talking points, Twitter hashtags, and online responses were developed. Sean Spicer, the RNC communications director, is quoted as saying “Everybody was going to take their cue from Governor Romney.”

Judging from the reactions by Republicans up and down the ballot, Romney’s party either followed the memo to a T, responding to the “one message” directive with an almost cartoonish Rovian devotion, or conservatives have simply been drinking their own Kool Aid for so long that extremist Tea Party rhetoric now comes as second nature. The first version of events is actually most disturbing, as it assumes that the Romney campaign was fully on-board with the extremist, Obama-hates-America rhetoric that GOP officials spent yesterday delivering.

Even before I saw Shear’s piece in the Times, the similarities between the Republican responses were striking. Even Henry Ford’s factories never achieved such a degree of standardization and interchangeability. Of course, Ford never had Sarah Palin’s Facebook page from which to crib nearly identical — and identically heated — hyperbole. While not everyone stuck to the script (one hopes that Indiana Representative Mike Pence was not using a Romney-endorsed talking point when he compared the SCOTUS decision upholding health care reform to the 9/11 attacks), enough conservatives parroted the party line that I was left with a strong sense of deja vu. If I hear the word “freedom” one more time, I think I might throw up.

A sampling:

Virginia Attorney General Ted Cuccinelli, who spearheaded the legal challenges to the ACA: “This is a dark day for the American people, the Constitution and the rule of law. This is a dark day for American liberty.”

Rep. Michele Bachmann (Minn.): “The Supreme Court ruling on the president’s health care plan resulted in a sad day for freedom, liberty and the American people.”

Sen. Mike Lee (Utah): “The individual mandate violates basic American freedoms and personal liberty in a way no Congress had before attempted in the 225-year history of our Republic.”

(Funny, because I can think of a couple of bigger violations right off the of my head, starting with the Alien and Sedition Act and including any number of statues supporting “separate but equal” segregation. State-sanctioned sterilization of “mentally feeble” citizens in the early 20th century comes to mind as well. But hey, Sen. Lee feels those are small beans compared to the requirement to have health insurance!)

Rep. Todd Akin (Miss.): “This is a crushing blow to freedom and an absolute insult to the dignity of all Americans.”

Rep. Tom Price (Ga.): “Today’s ruling by the Supreme Court has set a dangerous precedent by allowing this administration to continue pursuing its unbridled effort to erode personal freedom and undo the principles upon which this country was founded.”

Sen. Rand Paul (Ky.): “Today the Supreme Court — the ruling body that our Founding Fathers created to protect citizens from tyranny — decided to uphold Obamacare and thus stripped Americans of their personal liberties and freedoms.”

The best (worst?) example of such breathless overstatement comes, naturally, from Ben Shapiro, the editor-at-large of Andrew Breitbart’s website: “This is the greatest destruction of individual liberty since Dred Scott. This is the end of America as we know it. No exaggeration.”

No, no exaggeration at all. Though the millions of African Americans affected by the 1857 ruling, which held that they were not citizens but rather private property that could not be taken from their owners without due process, might disagree.

But there you have it, folks. Surely, somewhere in a corner office of the Kraft Foods headquarters, a CEO is gleefully watching his stock go through the roof.

Well, That Went Better Than I Expected . . . .

This morning’s SCOTUS ruling was far from perfect (see: hurdles to Medicaid expansion, broccoli-based logic on the Commerce Clause), but there’s truth to the adage about the dangers of letting the perfect be the enemy of the good. I’m reminded of a book I haven’t read — indeed, I don’t even know what it’s about — but whose title sticks in my head: When Will There Be Good News? June 28, apparently.

Take it away, Lyle & Co.:

And the clincher:

The over-analysis and hand-wringing on the part of liberals as well as conservatives is already in full swing online (and I’ll probably get into the copy-paste-snark action of sorting through the responses soon myself), but for now I’m just content to sit on Forrest Gump’s bench and enjoy the best chocolates in the box. Between the positive (“A Victory for Obama,” says the Times) and negative (“Did Roberts Save Health Care Just So He Could Gut the Commerce Clause?” asks Slate) interpretations of the decision, I feel as if I’m getting whiplash.

But behind all the nuance and grief that even Democrats grateful for John Roberts will eventually extract from the decision is a desire to simply be glad for awhile. Yes, the ruling could have long-term implications for federal power, as conservatives may be emboldened to challenge other legacy legislation (environmental laws, Title IX, even the Civil Rights Act) based on the Commerce Clause. Yes, there could be problems with a “donut hole” in coverage if states decline the new Medicaid funding and refuse to enroll people all the way up to the income level at which federal subsidies kick in. Yes, the survival of “Obamacare” could spark a Tea Party resurgence and dim electoral prospects for Democrats in November. For now, however, I’m going to indulge in ignoring the sausage-making process of today’s ruling and be thankful that the court got the ends right, if not the means.

As with most things in life, there’s a relevant Paul Krugman quotation. In Friday’s column, my favorite economist writes that “this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.” Still, his conclusion is a nice change from the usual Krugman doomsday predictions about the fate of the euro and the GOP’s slide into nuttiness:

But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.

Last Thoughts Before Health Care Götterdämmerung

Update: My own hasty (and as a disclaimer, possibly inaccurate!) take on what just happened. The scenario that everyone thought least likely — #4 on the Post’s list of 4 Possibilities, I think — in fact came to pass. Scotusblog: “Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.”

Individual mandate stands, but as a tax, not an exercise of the Commerce Clause. Medicaid expansion allowed but cannot be required; state can reject the new funds without putting the rest of their Medicaid dollars at risk. At first glance, it looks like the majority (with Roberts, not Kennedy, as the swing vote) bought the broccoli argument but found a way around it. For all the debate, this does seem to be “judicial restraint” — it certainly doesn’t seem like the opinion of an activist court bent on undoing legislation, as liberals have claimed recently and conservatives have claimed historically. The decision seems to place major limits on federal power, but in the matter directly at hand — the Affordable Care Act — those limits are superseded by the fact that, no matter what the administration said in public about the mandate not being a tax, the mandate is indeed a tax. Takeaway: conservatives won on federal power, liberals won the battle but perhaps not the war. After the Doomsday atmosphere of the past few months, I’m even OK with half a battle at this point. Or maybe the correct metaphor is “half a loaf.” Half a loaf is better than opening up the wrapper and finding green mold growing all over your sandwich bread.

The 193-page ruling itself, which I’ll probably muddle through intermittently throughout the day (not exactly single-sitting Nora Roberts reading, this one) can be found here.

Original Post:

Well, it’s T-5 hours. We’re about one double-feature (may I suggest Titanic and Armageddon?) away from the Supreme Court’s decision on the Affordable Care Act. On the assumption that writing anything at all about health care will be intolerable for the next few days — heck, just reading anything from the conservative end of the spectrum will almost certainly be insufferable — I thought I’d take the chance to highlight a recent post by New York Magazine’s Jonathan Chait, who manages to distill the differences between Democrats and Republicans into a few paragraphs. It’s partisan, to be sure, but not any more so than the “death panel” lies that Sarah Palin continues to insist — in 2012! — have merit. While I don’t believe conservatives harbor some evil, deep-seated desire to throw Granny off a cliff, I do think there is an unbridgeable gap between those who see health care as a human right and those who regard it as just another aspect of the amoral free market. Chait writes that “there has not been any open moral debate over . . . whether access to basic medical care ought to be considered a right or something that is earned.” He cites several news stories from the last few days about the human impact of the President’s health care reform — and the dismal, perhaps devastating, impact of its potential repeal. The New Republic’s Alec MacGillis wrote one of the better stories about the real people affected by the reforms, and countless other (mostly left-leaning) outlets have observed that even if SCOTUS limits itself to invalidating the individual mandate, 10 to 20 million fewer people will have access to health insurance than under Obama’s plan; if the court tosses out the Medicaid expansion as well, that number balloons to 30 million. Chait writes that “[m]aybe these stories sound like cheap emotional manipulation. They are actually a clarifying tool to cut through the rhetorical fog surrounding the health-care debate and define the question in the most precise terms.”

But I should let Chait’s post speak for itself:

Opponents of the law have endlessly invoked “socialism.” Nothing in the Affordable Care Act or any part of President Obama’s challenges the basic dynamics of market capitalism. All sides accept that some of us should continue to enjoy vastly greater comforts and pleasures than others. If you don’t work as hard as Mitt Romney has, or were born less smart, or to worse parents, or enjoyed worse schools, or invested your skills in an industry that collapsed, or suffered any other misfortune, then you will be punished for this. Your television may be low-definition, or you might not be able to heat or cool your home as comfortably as you would like; you may clothe your children in discarded garments from the Salvation Army.

This is not in dispute. What is being disputed is whether the punishments to the losers in the market system should include, in addition to these other things, a denial of access to non-emergency medical treatment. The Republican position is that it should. They may not want a woman to have to suffer an untreated broken ankle for lack of affordable treatment. Likewise, I don’t want people to be denied nice televisions or other luxuries. I just don’t think high-definition television or nice clothing are goods that society owes to one and all. That is how Republicans think about health care.

This is why it’s vital to bring yourself face-to face with the implications of mass uninsurance — not as emotional manipulation, but to force you to decide what forms of material deprivation ought to be morally acceptable. This question has become, at least at the moment, the primary philosophical divide between the parties. Democrats will confine the unfortunate to many forms of deprivation, but not deprivation of basic medical care. Republicans will. The GOP is the only mainstream political party in the advanced world to hold this stance.

The maddening thing is that Republicans refuse to advocate the position openly. The more ideologically stringent ones couch their belief in euphemisms, like describing health care as a matter of “personal responsibility.” But even such glancing defenses are too straightforward for most Republican leaders. Instead they simply rail against the specifics of Obamacare and promise to “replace” it, without committing themselves to an alternative path to universal coverage. It is to maintain this pretense of wanting some different solution that John Boehner warns Republicans to hide the unadulterated joy they will feel if the Supreme Court does their work for them.

The maintenance of mass lack of access to medical care is their cause. That is why the Republicans never offered an alternative universal-health-care plan and why the Paul Ryan–authored budget they have embraced repeals Obama’s coverage subsidies and throws millions more off their Medicaid, without any replacement.

Their reason for failing to defend their actual principles is obvious enough: That tens of millions of Americans deservedly lack a right to basic medical treatment is a politically difficult proposition. Thus, they oppose Obamacare without defending the indefensible conditions they actually favor. Their tactic of adding vague gestures toward unspecified future reforms has been so successful that news reports almost uniformly describe the Republican health-care stance as yet-to-be-determined, rather than an outright defense of maintaining health care as an earned privilege rather than a right.

Chait has a few more paragraphs on the political and logical reasoning behind the GOP’s opposition to health care, but in the end he is angry that conservatives are able to dodge the moral implications of their position. They squawk about the “murder” of millions of “unborn children” (an oxymoron if I ever heard one), yet they can’t muster outrage at a system in which real, live children are kicked off Medicaid (because that’s what happens when you eviscerate and block-grant the program) or denied coverage based on pre-existing conditions. Chait concludes with the observation that “the Republican politicians, the conservative pundits and philosophers, are all perfectly happy at the prospect that they can win politically without making the case for what they genuinely believe.”

So, now that the clock has ticked down to T-minus-4-hours, I’ll leave you with this tweet from the Washington Post’s Greg Sargent: “So any chance we can include a mention of the uninsured in our ‘winners and losers’ stories on SCOTUS and Obamacare tomorrow?”

I hope so. And who knows — maybe we (i.e. liberals) will be pleasantly surprised. Stranger things have happened, I suppose, though it’s hard to recall many off the top of my head. A dash of black humor: Perhaps the best recommendation comes in the classic exhortation, “My advice to you is to start drinking heavily.” Of course, given that the Supreme Court will hand down its ruling around 7:30 a.m. PST, a better prescription might be for a little Lyle and a lot of Valium.

#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.

The NYT Eats Its Broccoli

I am a slowpoke.* Usually, by the time I get around to writing about an issue, the rest of the liberal blogosphere has already expressed its collective outrage, and my own post ends up as more a summary of everyone else’s talking points than an explication of unique ideas. There are only so many responses to any particular outrage; it’s difficult to come up with something new to say when guys with decades of pithiness and insight under their belts get there first. Ed Kilgore of the Washington Monthly and Jonathan Chait of New York Magazine have the ability to reduce conservative gobbledegook to tart lines of sarcasm, and Washington Post wunderkind Ezra Klein can cut through layers of economic obfuscation in less time than it takes me to ramble through an introduction.

So imagine my surprise to find that no one else had really glommed on to the ridiculousness of last week’s New York Times article on the history of the Supreme Court’s broccoli obsession. The story, by business writer Floyd Norris, tracked the spread of the analogy between a (hypothetical) forced vegetable purchase and the insurance mandate at the heart of the Affordable Care Act. Though it began as an unlikely metaphor in conservative legal briefs, the healthcare-as-broccoli meme eventually made its way into Justice Scalia’s acid commentary during March’s three days of oral arguments. I don’t object to the premise of Norris’s article; it’s interesting, actually, to see how the conservative commentariat has spun a constitutionally specious argument into the rhetorical highlight of court hearings in which the panel’s “antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform,” in the words of Paul Krugman.

Unfortunately, while this evolution of an idea is interesting, Norris limits his interviews to conservative players whose explication veers into advocacy. In his attempt to explain the allure of the broccoli analogy to the anti-ACA crowd, Norris offers its proponents a platform on which to trumpet their version of reality. The article is dismally one-sided, completely ignoring the consensus opinion of health care experts that health insurance is nothing like George W. Bush’s least-favorite vegetable. There are valid arguments to be made against the “broccoli mandate,” but you’d never know it by reading the NYT piece. It’s as if the paper’s science section ran an article exploring the “theories” of global warming deniers without giving mainstream scientists a chance to rebut such fringe ideas. My complaint is not that Norris fails to give what I’ll call broccoli realists equal time; it’s that he fails to give them any time at all.

The protagonist of Norris’s article is David B. Rivkin Jr., the libertarian attorney who has devoted the last 20 years to nurturing the broccoli argument. Rivkin opposed President Clinton’s attempt at health care reform, and when Obama took his own stab at legislation, Rivkin hit on broccoli as a “simplistic metaphor” that, in the words of Constitutional scholar Akhil Amar, is nevertheless “politically brilliant.” Unfortunately, though Norris gives Amar a single quotation in which to express his grudging admiration for Rivkin’s rhetorical cunning, he neglects to explain exactly why Amar finds the dangers of forced broccoli purchases such a “bad argument.” Instead, Norris barrels on to catalog the exploits of Terrence Jeffrey, the editor-in-chief Conservative News Service (CNS) and the author of the column that single-handedly resurrected the broccoli analogy for the 21st century. Convinced that the government’s power to regulate commerce did not extend to the “inaction” of refusing to purchase health care, Jeffrey “figured most Americans would not understand an abstract debate over the limits of the commerce clause. Searching for an easy-to-grasp analogy, he hit upon something “that would go more to health care, something that people would universally recognize was good for you.” Norris quotes extensively from Jeffrey’s 2009 CNS column:

Can President Barack Obama and Congress enact legislation that orders Americans to buy broccoli? This is not a question about nutrition. It is not a question about whether broccoli is good for you. It is a question about the constitutional limits on the power of the federal government. It is a question about freedom.

In fact, most Constitutional experts and health care economists would argue that hypothetical broccoli legislation has nothing to do with limited government or freedom. But you’d never know that from Norris’s article. He guides the reader through the mainstreaming of the broccoli argument, from a video produced by the libertarian (and Koch-funded) Reason Foundation to the opinion by Federal District Judge Roger Vinson that not only relied that argument but even, in a nod to the power of conservative propaganda, provided a link to the video in question. Vinson wrote:

Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.

Vinson, who found the Affordable Care Act unconstitutional, is of course entitled to his own opinion — as are the nine justices who will rule in the next few days on the ACA’s ultimate future. However, by failing to offer the counterargument to what Vinson states as fact, Norris unintentionally allows the opponents’ argument to go unchallenged. A plethora of liberal law experts and pundits have questioned the premise of Vinson’s ruling, pointing out simply because Congress “could” do something as silly as mandating vegetable purchases does not make such an action unconstitutional. Ahkil Amar made the case against broccoli most strongly in a March interview with Ezra Klein; surely Norris could have asked Amar about this reasoning, or even just quoted from the Washington Post website. Klein asks Amar about the “slippery slope” argument, noting that opponents parse their position thus: “First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.” Amar’s response:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected?

To bolster his case, Amar goes straight to the grandfather of judicial review, John Marshall himself: “And in paragraph 55 [of McCulloch vs. Maryland] he says that the main security against an abusive legislature ‘is found in the structure of government itself. In imposing a tax’ — or, I would add, a mandate — ‘the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.’ And against bad mandates and bad broccoli laws.”

Perhaps more importantly, the mandate to purchase health care serves a definable, real-world purpose in a way the forced purchase of broccoli would not. There are few failures in the market for fresh produce; anyone who wants to buy broccoli can walk into a grocery store and put a few bunches of the green stuff in their shopping basket. The same can’t be said for the market for health insurance, which by design encourages insurers to cover only a subset of consumers: the employed, the non-elderly, the healthiest. Farmers have no reason to deny potential broccoli consumers access to the crop; on the contrary, they’ll sell to whomever offers the best price, whether the buyer is a huge corporation like Safeway or the local organic co-op. Insurance companies, on the other hand, routinely refuse to sell coverage to people with pre-existing conditions, effectively locking vulnerable consumers out of the market. Just because someone wants to buy coverage doesn’t mean he is able to do so. Donald Verrilli, the U.S. Solicitor General who defended the ACA at the Supreme Court, explains to Justice Scalia what makes the market for health care unique from the vegetable market:

In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don’t participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.

Paul Krugman picks up on the crucial differences between the insurance and broccoli markets. “When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it,” he writes in a recent column. A mandate is necessary to keep insurance costs from spiraling out of control; broccoli prices, by contrast, are no more outrageous than those of anything else in the produce section. Timing isn’t an issue in the purchase of broccoli; if it’s in season, a veggie stir fry or a broccoli rabe is as close as the nearest supermarket. “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.”

Still, the justices seemed determined to force the ACA’s defenders to articulate a limit to the government’s power to compel commerce. While Ahkil Amar may be convinced that such a “limiting principle” lies more in democratic governance than in the Constitution, plenty of writers have proposed just such principles. The conservatives quoted in Norris’s article claim the individual mandate is the first step down the slippery slope to mandated broccoli purchases, but The Economist’s Ryan Avent disagrees, making an argument that Norris would have done well to highlight:

One such limiting principle might be that a measure had to be necessary as part of a reasonable piece of legislation intended to achieve a major, legitimate public end. I think this would be sufficient to rule out idiotic measures such as requiring Americans to buy broccoli or (in most cases) cell phones. Try, for example, to think of a major public goal that could be reasonably addressed by a programme which would entail the government ordering people to buy broccoli. What could such a goal possibly be? Increasing the public’s intake of vitamin B so as to reduce public health-care costs and improve public health? But mandatory private broccoli purchases would be completely ineffective at achieving this goal; the government might order people to buy broccoli, but it can’t force them to eat it. It would obviously be more effective (and incontestably constitutional) to subsidise broccoli so that those who do have some inclination to eat broccoli, rather than Big Mac’s or what have you, would be more likely to do so. Ordering people to buy broccoli would be an arbitrary, irrational and ineffective means to accomplish any public health goal, and for that reason such a law could be ruled unconstitutional.

Detractors of the broccoli metaphor abound, yet Norris cites none of them in his piece for the Times. Clive Crook of the Atlantic makes an argument similar to Amar’s, one that Norris could have cited to show that the broccoli dilemma is not quite the dilemma that conservatives make it out to be. Crook voices the uncomfortable notion that the highly sought “limiting principle” doesn’t actually exist. The century-long expansion of the Commerce Clause has already stripped away most of the meaningful limits on Congressional power — as Crook puts it, “the Court has all but erased the limits on the economic power of the federal government” —  and to go back now would be an act of political vindictiveness, even for strict constructionists like Scalia and Thomas, not a measured return to form. In other words, hardly the definition of stare decisis.

Paul Clement, the solicitor who argued against the Affordable Care Act before the Supreme Court, announces that the court must find a “limiting principle” because the hypothetical implications of there not being such a limit can be turned into a “parade of horribles.” But government has a lot of powers that, if exercised unrestrained, would be horrible. The president can suspend habeas corpus in times of crisis, yet we have faith that he won’t. That’s part of the political compact we make, in which elected officials are held responsible for their actions and we all make the implicit bargain to trust each other. Conservatives want a limiting principle because they don’t believe government should rest on this unspoken trust. But no matter how uncomfortable it makes them, the fact is that government is all about trust.

Crook’s reasoning tracks closely with Amar’s:

Am I forgetting the Broccoli Question? If the government can force you to buy health insurance, what can’t it force you to buy? The common-sense answer to this, as we’ve just seen, is straightforward. Nothing. The government can make you pay for whatever it likes–that’s where things already stand, and striking down the mandate won’t change it. The Constitution as interpreted by the Court these past decades allows the federal government to put your taxes up and use the proceeds to send you a weekly box of broccoli. If Washington instructed you to choose your own basket of fruit and vegetables or else pay a penalty, that would be a smaller infringement of your freedom than the Constitution already allows.

A more strident skeptic of the broccoli argument, should the Times consider Amar and Crook insufficient, can be found in Michael Tomasky of the Daily Beast. Tomasky latches onto the “vote them out” line of thinking. The democratic process already protects Americans against overreaching government, whether that overreach is exemplified by mandated vegetable purchases or illegal wars. When Republicans were perceived to have overplayed their hand during the Bush years, voters delivered the electoral rebuke of 2006; likewise, Tea Party enthusiasm provided the notorious 2010 “shellacking” of Obama’s party. That victory for the GOP was predicated partially on the backlash against health care reform, providing proof positive that the current system of checks and balances is alive and well. Voters, by expressing their disapproval of the Affordable Care Act at the ballot box, did just what they were supposed to do. If conservatives wish to repeal Obama’s reforms, they should take their new legislative powers and overturn the ACA, not stretch to find non-existent Constitutional barriers to its implementation. That Republicans have not been able to finagle outright appeal on Capitol Hill says more about the slowness of the democratic process and the power of the minority than it does about the Constitutional soundness of the individual mandate. Essentially, by repairing to the courts, the GOP is attempting to do an end-run around democratic process, short-circuiting the frustrating (though perfectly legitimate) trudge toward dealing with an unpopular piece of legislation via the legislative channels.

“Nothing, at least in theory,” prevents Congress from requiring Americans to purchase broccoli, Tomasky writes bluntly. “If a future Congress wants to make such a law, it can do so and see what happens in the courts. Which means that the real answer is—politics. If you don’t want a law mandating the eating of broccoli, work to elect people to Congress who won’t pass such laws.”

It’s unfortunate, then, that broccoli has garnered so much attention lately. Norris’s article may be amusing, but there’s something sad in the fact that it had to be written at all. The history of the broccoli analogy is worthy of news coverage, but the Times should at least addressed the many substantial arguments against that analogy’s accuracy. By leaving out a major caveat to the conservative vegetable obsession, Norris did a disservice to readers.

Conservatives — and quite possibly a majority of Supreme Court justices — take the broccoli analogy seriously. Because I would argue that more enlightened people do not, it seems appropriate to end on a non-serious note. The New Yorker’s humor column recently ran a “Guide to Supreme Court Betting” that gave odds on upcoming decisions, the future of the Court’s reputation, and the likelihood of Justice Thomas ever breaking his long-running silence (90,000 to 1, if you’re interested). On the subject of everyone’s least favorite green vegetable, author Nathaniel Stein offered the following opinion:

Court’s opinion on health care mentions broccoli: 1-3

Press coverage of court’s opinion on health care mentions broccoli: 1-500

Justice Scalia eats a piece of broccoli: 15,000,000-1

 

* If the Supreme Court rules tomorrow morning against the Affordable Care Act, I will not only be a slowpoke but an out-of-date slowpoke who wasted a day writing about a moot point. So enjoy this blog post while you can, as it may be dead as a doornail by 10:30 a.m. and will be dead as a doornail by the time the court’s term wraps up next week.

From the Department of Spectacularly Bad Ideas

Image by Todd Gipstein/National Geographic/Getty

The New York Times’ Campaign Stops blog has been home to any number of dubious arguments, from Charles Blow’s overconfident triumphalism – “Public sentiment is slowly drifting away from the Republicans in a way that must be giving the party’s long-range strategists sleepless nights” – to Thomas Edsall’s assertion that advertising mega-firm WPP is more of an evil, corrupting force than the myriad “independent” K-Street lobbyists of the past. Eric Lewis devoted an entire gossipy (and intellectually worthless) column to his “candidate crushes” of the GOP primary process, from Michele Bachmann (“She was fun; she was dangerous; she was everything my parents had warned me against”) to Rick Santorum (“Sweater vests have never been sexy, true, but fashion is fickle”).

But the May 28 installment really takes the cake. Of all the flaws inherent in the U.S. Constitution – the entire second amendment, for example, is something of a cruel joke — the difficulty with which amendments can be made is not one of them. Yet Sanford Levinson, an otherwise respected Constitutional scholar from the University of Texas, describes our founding charter as “imbecilic.” He lists some familiar objections to the 1789 magnum opus, including its tacit endorsement of slavery and establishment of the Electoral College, then writes:

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world . . . . The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

Levinson notes with disappointment that the Constitution was last amended in 1951. Yet the high hurdles faced by the red pencils of would-be amenders seem more like a feature than a flaw. Just consider a few of the latest suggestions for alterations, one of which, in the name of “protecting” heterosexual marriage would enshrine discrimination in our founding document. Another is a ham-handed attempt to nullify the Supreme Court’s Citizens United decision by prohibiting “corporate personhood,” a concept with origins not in Citizens United (in fact, the phrase doesn’t appear once in the ruling) but in nearly a century of jurisprudence. Such amendments may look nice on the surface – Protect marriage! Get money out of politics! – but would in truth have the invidious effect of codifying bigotry and potentially stripping corporations from New York Times to Apple of their First Amendment rights to free speech.

Levinson lays out a prescription for “radical reform” of the Constitution. Taken one by one, his ideas are certainly radical, though not necessarily in a good way. Topping what Anderson Cooper might smirkingly call the “Ridiculist” is the suggestion that the federal government be “inspired by the states to allow at least some aspects of direct democracy”:

California — the only state with a constitution more dysfunctional than that of the United States — allows constitutional amendment at the ballot box. Maine, more sensibly, allows its citizenry to override legislation they deem objectionable. Might we not be far better off to have a national referendum on “Obamacare” instead of letting nine politically unaccountable judges decide?

For starters, it is beyond me why Levinson feels that gridlock-paralyzed California, with its admitted dysfunction, is a wise example to raise here. A more substantive critique is hardly less obvious, however. We were given a representative democracy – “a republic, madame, if you can keep it” – for a reason. Our elected officials are ostensibly sent to Washington to make difficult decisions in the name of the people. If you believe the polls, an Athens-style direct democracy would “keep your government hands off my Medicare!” and promise Social Security benefits into eternity while simultaneously (and contradictorily) balancing the budget by ending foreign aid and public broadcasting, despite the fact that these items together comprise around one percent of federal expenditures. The Civil Rights Act never would have passed a referendum, and in a country in which 52 percent of Americans believe abortion should be “legal only under certain circumstances,” what do you think would happen if Roe v. Wade were put to a popular vote? Likewise, FDR’s New Deal never would have passed muster, and most Great Society programs would have died on the birthing table.

Next Levinson takes on the “nine politically unaccountable judges” directly, ignoring the fact that the framers made the Supreme Court unaccountable for the extremely valid reason of insulating the arbiters of law from the whims of the populace.

Even if we want to preserve judicial review of national legislation . . . perhaps we should emulate North Dakota or Nebraska, which require supermajorities of their court to invalidate state legislation. Why shouldn’t the votes of, say, seven of the nine Supreme Court justices be required to overturn national legislation?

Though he is not brave enough to say it in so many words, Levinson is essentially challenging the separation of powers that lies at the heart of the Constitution. Jefferson and Madison deliberately gave us three coequal branches; the division of authority between the executive, legislative and judicial branches is not a minor flaw to be amended away. “Radical” is too mild a word to describe Levinson’s inclination to gut the independence of an entire third of government. Congress can already override the Supreme Court, as it did with military tribunals after Hamdan v. Rumsfeld. The court interprets the Constitution and applies the law; the voting public is interested in neither, and could frankly care less whether laws actually conform to the principles America has lived by for 223 years. “National legislation” is not necessarily Constitutional legislation; when the two diverge, I suspect most people would prefer that “Constitutional” trump “national.” The Affordable Care Act was duly passed by Congress, yet conservatives would foam at the mouth if Clarence Thomas and Antonin Scalia suddenly had to muster a seven-justice majority to overturn “Obamacare.” Similarly, liberals would be irate if a successful right-wing attempt to end birthright citizenship — a pet project of the anti-immigration lobby despite its clear violation of the 14th Amendment — faced heightened judicial scrutiny.

Next up on the bad-idea laundry list, another piece of dreck from the states — which, as a Constitutional scholar, Levinson really ought to know were designed as “laboratories of democracy,” places to test out models of governance before subjecting the entire nation to ill-conceived legislation. Not every lousy feature of state government deserves to be federalized, as Texas’ loose environmental standards and Arizona’s tax-credit subsidies for parochial schools demonstrate. Levinson sure knows how to pick the worst “innovations,” however:

Or consider the fact that almost all states have rejected the model of judges nominated by the president and then confirmed by the Senate. Most state judges are electorally accountable in some way, and almost all must retire at a given age. Many states have adopted commissions to limit the politicization of the appointment process.

It takes a lot of nerve to complain about the politicization of the appointment process while simultaneously endorsing the dictionary definition of politicization: “electoral accountability.” It’s not an exaggeration to say that elected judges have been one of the greatest disasters of state-level democracy in recent decades. What distinguishes the courts from Congress and the White House is that we don’t get to vote on the arbiters of Constitutional law; the entire point is to enable the judicial branch — which is supposed to rule based on legal facts, not political expedience –to make unpopular decisions by insulating it from the whims of the electorate. How many Supreme Court justices would be willing to uphold health care reform if they were facing re-election in 2014? Remember, the Affordable Care Act is currently polling at 39 percent, with 55 percent of likely voters at least “somewhat” in favor of repeal. Sixty-two percent of everyday Americans (those noted Constitutional experts) think it’s unconstitutional for the government to mandate the purchase of health insurance. Do we really want the Supreme Court outsourcing its determination of constitutionality to a voting public that also wonders whether the president is a closet Muslim?

If that isn’t enough of a reason to question the prospect of an electorally accountable Supreme Court, consider the reality of the state-level judiciary. This is a place where money talks. Like legislators, judges are forced wage expensive campaigns for re-election, an especially insidious development in the era of such shadowy non-profits as the Karl-Rove backed Crossroads GPS, which can spend millions of dollars in undisclosed, anonymous donations to advance its conservative agenda. To compete against well-financed challengers, judges are forced to go hat-in-hand to wealthy donors. Over the past decade, the cost of state judicial elections has soared to over $200 million, up from $83 million in the previous ten-year cycle, according to a report by the watchdog group Justice at Stake. Former Supreme Court Justice Sandra Day O’Connor has expressed regret that “many think judges are just politicians in robes.” She notes that the courts were once the “one safe place in our system of government where being right was more important than being popular. This idea is being eroded by increasing threats to judicial independence around the country.”

The threat to judges who make unpopular, though perfectly legal, rulings is not merely theoretical. After the Iowa Supreme Court voted to legalize same-sex marriage, conservative groups spent more than $121,000 on television ads to unseat the three justices up for re-election, and the National Journal reports that “In Florida, a tea party organization has teamed up with a local group to oust two judges who blocked an amendment opposing President Obama‘s health care overhaul from being placed on the ballot.” In Wisconsin, a state roiled by Gov. Scott Walker’s controversial rollback of public union bargaining rights, one of the state Supreme Court judges who OK’d the anti-union legislation was elected after outside “independent” groups like the conservative Club For Growth dropped $1.2 million into the campaign. Later, according to liberal advocacy group ThinkProgress, the same justice “reportedly received tens of thousands in free legal fees from a law firm that frequently practices in front of his court. [Justice] Gableman then went on to sit on several cases brought by that firm, including the high profile decision allowing Gov. Scott Walker’s anti-union law to move forward.” This sort of pay-for-play sleaziness is hardly limited to Wisconsin; in 2009, the (federal) Supreme Court ruled that a West Virginia Supreme Court justice should have recused himself in a case involving a major campaign donor. After the CEO of Massey Coal spent more than $3 million supporting Judge Brent Benjamin’s 2004 campaign, Benjamin refused to step away from an appeal that ultimately overturned a $50 million fraud judgment against Massey. The Supreme Court ruling, Caperton v. A.T. Massey Coal Company, is described thusly by Wikipedia:

Writing for the majority, Justice Kennedy called the appearance of conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a threat to the plaintiff’s Constitutional right to due process under the Fourteenth Amendment.

And Levinson thinks this gusher of outside money would improve the nation’s courts?

In addition to the sins of the judicial branch, Levinson’s Campaign Stops column offers a solution for “Congressional gridlock.” Instead of taking up the worthy challenge of filibuster reform or examining the role of such billionaire enablers as Sheldon Adelson in perpetuating the ideological purity that shuns across-the-aisle negotiation, Levinson suggests the following:

We could permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election. Presidents would be judged on actual programs, instead of hollow rhetoric.

This is an argument for parliamentary-style government in disguise. While the European political system, in which the leader’s party controls the legislative branch, eliminates the possibility of divided government, I wonder if Levinson has truly considered the implications of his proposal. Why bother voting for senators or representatives when Congress would merely be a tool of the executive branch? We might as well scrap the Seventeenth Amendment (direct election of senators), as well as Article I of the original Constitution, which provides for a House of Representatives “composed of Members chosen every second Year by the People of the several States.” If presidents would indeed be judged on “actual programs,” the country’s 435 legislators could no longer be held accountable for actual positions or votes, as Levinson would have transformed them into cogs in the machine of the White House.

Amusingly, Levinson’s plan to allow the president to appoint a handful of Congresspeople bears more than a passing resemblance to FDR’s notorious court-packing scheme, which would have added up to five Supreme Court justices and was widely viewed “as an attempt to rig the American judiciary system and give the executive branch almost dictatorial power.” Yeah, that one worked out well.

Levinson deserves credit for using a strong, take-no-prisoners adjective like “imbecilic.” Unfortunately, it’s his own writing — not James Madison’s — that best fits the description.

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?