“An Uncertain Record In Three Major Policy Areas”: Bernie Sanders Is Not Nearly As Progressive As You Think He Is
Sen. Bernie Sanders (I-Vt.) has been doing some serious sub-tweeting about Hillary Clinton.
Following her ever-so-narrow win in Iowa, Clinton touted her bona fides as a “progressive who gets things done,” much to Sanders’ distaste. “Most progressives I know were against the war in Iraq,” Sanders tweeted, without specifically naming Clinton. “One of the worst foreign policy blunders in the history of the United States.”
Indeed, measured against Clinton, Sanders is right to claim the mantle of progressivism. The former secretary of state is (and should be) dogged by her close and profitable ties to Wall Street and big business, and her foreign policy is consistently hawkish in a style Dick Cheney would admire.
But evaluated on the basis of his own lengthy record, Sanders is not as progressive as he makes himself out to be on at least three big issues: guns, criminal justice reform, and — despite the Iraq vote — foreign policy.
Sanders’ mixed history on guns is a chink in his progressive armor that Clinton aims at whenever she has the chance. “If we’re going to go into labels, I don’t think it was particularly progressive to vote against the Brady Bill five times,” she said at the latest debate. “I don’t think it was progressive to vote to give gun makers and sellers immunity.”
Sanders often sounds like a gun control hardliner. “The president is right: Condolences are not enough,” he said after a shooting this past fall. “We’ve got to do something … We need sensible gun control legislation.” But Clinton’s claims are still basically accurate. Per this Politifact tally of Sanders’ significant gun votes in Congress, he backs additional control about half the time, albeit with a trend toward more gun regulation in recent years. Sanders’ staff has tried to explain his comparative conservatism here as part and parcel of representing Vermont, a left-wing but gun-friendly state, but either way, his is hardly a super-progressive record on guns.
Then there’s criminal justice reform, an issue which has netted Sanders the endorsement of several well-known figures in the Black Lives Matter movement. Speaking in New Hampshire the same day as the subtweets, Sanders vowed, “There will be no president who will fight harder to end institutional racism” than he will.
“We have got to reform a very, very broken criminal justice system,” he added. “It breaks my heart, and I know it breaks the hearts of millions of people in this country, to see videos on television of unarmed people, often African-Americans, shot by police. That has got to end.”
The rhetoric is right. But Sanders’ record says otherwise.
For instance, Sanders sounded a similar note back in April 1994, decrying America’s ballooning prison population and its ties to poverty. But just one week later, he voted to pass the Violent Crime Control and Law Enforcement Act of 1994, a centerpiece of Bill Clinton’s “tough on crime” shtick, which, among other things, mandated a life sentence for anyone convicted of three drug crimes; expanded the list of death penalty crimes; lowered the age at which a juvenile could be tried as an adult to just 13; and appropriated billions to expand the prison system and hire 100,000 new police officers.
That’s the biggest blot on Sanders’ criminal justice record, but it’s not the only one. In 1995, he voted against a measure which would have prohibited police acquisition of tanks and armored vehicles like those he critiqued in Ferguson. Likewise, in 1998, Sanders prioritized gun control over prison reform and voted for mandatory minimum sentences for crimes where the offender carried, brandished, and/or fired a gun. The gun in question doesn’t have to be used for the criminal act, so, for example, a nonviolent crime like smoking pot while carrying a legally owned weapon would trigger the mandatory minimum.
Now that criminal justice reform is en vogue, Sanders has shifted — but it’s an uncomfortable fit. His responses to Ferguson highlighted poverty more than police brutality; and the bill to ban private federal prisons he introduced this past fall had a clearer connection to his socialist economic policies than anything else. Alex Friedmann of the Human Rights Defense Center, whom Sanders consulted in crafting the proposal, says, “It appears to be more for political purposes than to actually address the many problems in our criminal justice system.”
Finally, foreign policy. Sanders regularly touts his vote against invading Iraq in 2003, and that is unquestionably to his credit. But then there’s the rest of his record on matters of war and peace, which figures heavily into the wariness many actual socialists maintain toward Sanders’ campaign.
As Stephen M. Walt writes at Foreign Policy, Sanders is hardly “a reflexive dove.” He intends to retain President Obama’s drone program if elected. He voted in favor of Clinton’s pet intervention in Libya, in favor of the interminable war in Afghanistan, and even in favor of multiple funding measures to maintain the war in Iraq — a repeated “yes” to bankrolling the very conflict he so often boasts of opposing.
Sanders also speaks enthusiastically of coalition-based wars. “I would say that the key doctrine of the Sanders administration would be no, we cannot continue to do it alone; we need to work in coalition,” he said at the last debate. In practice, though, that doesn’t mean no more wars; it means non-Americans fighting and dying in pursuit of American goals.
Writing at the socialist Jacobin Magazine, Paul Heideman contends that though “Sanders is willing to criticize many of the most egregious over-extensions of American empire” — like the invasion of Iraq — “it seems he has no interest in contesting the American suppression of democracy across the globe.” The candidate cheered King Abdullah II of Jordan for his opposition to ISIS, of which Heideman snarks, “It is never a good look for a socialist to praise a monarch.”
More broadly, it is never a good look for a progressive to have such an uncertain record in three major policy areas. Running against Clinton, Sanders can rightfully lay claim to progressive voters’ support. But they could be forgiven for suspecting he is less one of their own than his tweeting suggests.
By: Bonnie Kristian, The Week, February 9, 2016
“What You Missed While You Were Trumping”: 2015 Provided Reasons To Believe That America Never Stopped Being Great
One of the most frustrating aspects of the Year of Trump, besides everything, was the viciously cyclical nature of Trump coverage. Attention and outrage are the fuel of Trumpism, and attempts to explain his rise wound up re-inscribing the central falsehood of his campaign: that people are angry about an America in decline and a government with suspect motives and marginal competence. But what if none of that were true?
What if people aren’t really angry, America isn’t actually in decline, and our government is neither malicious nor incompetent?
Are people angry? Americans as whole say they are and I’ve been through enough counseling that I hesitate to tell anyone how they feel. But Trump supporters aren’t angry; they’re terrified. There are forms of righteous anger—the kind of communal eruption that happens when there are no other legitimate forms of expression. Trump supporters, on the other hand, do not lack for legitimate forms of expression. People are asking them what they think and feel all the time. There is not a second of time in the last 600 years that the world has had to guess at what American white people want.
Numerous progressive commentators (and Saturday Night Live) have pointed out that the nostalgia inherent in making America great “again” is little more than a pull toward a time before a gaymarriageblackpresidentscarymuslims. As one analyst put it, “Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”
Is America in decline, no longer “great”? I’m tempted to indulge in a poetic interpretation, to delve into the areas of American culture and society that produced greatness on a regular basis—from rescue workers to scientists, artists to educators. But Trump (and his supporters) are at once thuddingly literal and immeasurably ambiguous: “Greatness” seems to be a combination of economic success and world-leader dick-measuring. But if the U.S. has fallen so far in world esteem, how come the immigrants that so upset Trumpkins want to come here? Less concretely, there are actual data about how the rest of the world views America and it’s largely positive—we have an overall 65 percent approval rating, with some countries giving us the kind of marks that are a distant memory for America’s political class: 75 percent positive opinion in France (France!), 80 percent in both El Salvador and Kenya.
Economically, well, by the measure of the white, working-class, non-college-educated Trump supporters, they are either extremely late to the realization that their wages have stagnated (indeed, in real terms, the average hourly wage peaked in 1973) or—and we’re happening on a theme here—the complaint isn’t about the loss of “greatness” so much as the emergence of a perceived threat to the status quo. I don’t think it’s even about America being less great for them. It’s an alarm over the possibility that America is becoming great for people who aren’t them.
Whether American greatness is, in fact, becoming more widely accessible is a separate but related question—and it brings us to the final falsity of the Trumpian theology: Government is both evil and inept.
There’s no doubt that it can be; it’s mostly been evil and inept in the way it’s treated the very people Trumpkins worry about sharing the greatness pie with. Those communities continue to suffer, but here is where the Trump theology finds purchase: In 2015, our democracy—the functioning one, outside the circus of the party primaries—did a lot right by its citizens.
Some old wrongs began to be righted: The death penalty is increasingly unpopular not just in the public eye, but with state legislatures and judges. Courts in Texas (Texas!) issued two (two!) death-penalty sentences in all of 2015—the fewest since re-instating the penalty 40 years ago. Across the country, death sentences dropped 33 percent from 2014, with 49 people being sentenced to death this year. By comparison: In 1996, 315 people were put on death row. Also in 2015, just six states carried 28 out executions, the fewest since 1999—when 98 people were killed.
And while officer-involved shootings continue to be flashpoints for community unrest, cities have grabbed on to the Department of Justice’s best practices—hard-won lessons from Ferguson, Missouri, being put to use in places such as my adopted hometown of Minneapolis, where the biggest headline of the year might be the riot that didn’t happen in the wake of the death of Jamal Clark.
Also this year: Politicians embraced the end of the war on the drugs and the beginning of the movement to aid those in addiction. (A turn of events that may be the only lasting memory of Chris Christie’s presidential campaign.) Police departments are experimenting with a policy that puts treatment before arrest: In Glouchester, Massachusetts,, addicts who ask police for treatment will be assisted into a program—on the spot. More than 100 have found help so far. At the federal level, almost unnoticed this month, Congress ended the federal enforcement of drug laws where the state has legalized medical marijuana.
Somewhere between old wrongs being righted and new paths forward: The fight to raise the minimum wage continues to catch on among activists and allies in government. In 2015, workers won higher hourly wages in 13 states and in 14 municipalities (PDF). These weren’t just soft-hearted coastal governments’ blue bleeding hearts in action, either: Michigan and Nebraska went to $15 an hour, as well as Missoula, Montana, Pittsburgh, and Buffalo, New York.
And in more forward-looking changes, the Consumer Financial Protection Bureau, now in its fifth year, has become the exact kind of watchdog-with-teeth Elizabeth Warren envisioned. It’s taking in a record number of consumer-generated complaints (through November: 749,400; 24,300 in October alone—more in one month than it saw in all of 2014). AND it’s stepped in on some of the longest-running but legal scams in America, cracking down on (and getting huge payouts for consumers from) payday lenders and for-profit colleges. How successful is the CFPB? Its right-wing critics have resorted to fearmongering about the importance of payday loans in the fight against terrorism.
This isn’t to say that the year didn’t also see tragedy and horror, many instances emerging from governmental abuse or ineptitude, but it’s important to remember that the fear that Trump has based his campaign on is not real.
The idea that small-d (and, occasionally, big-d) democratic government works undermines the entire framework of Trumpism. Programs like the CFPB and the slow turn toward true criminal justice are kryptonite to the strongman ideology of Trump, not just because it fucks with his message of government incompetence or maliciousness. Its successful tenure is evidence of government for the people, to be sure, but its existence is also evidence of government by the people.
The image of Obama as capricious dictator, making social-justice decrees out of pique, is Trumpkins’ favorite myth because it cuts out the part of our American story that they are the least able to explain or process: Obama and Democrats have facilitated these incremental bits of forward progress because they won. They were elected to do so.
Grappling with the fact of a functional government requires more than the admission that protecting citizens is legitimate activity—it also forces the argument that government protects and fights for people because that’s what its people want.
The fearful coverage of the Trump’s fear-filled campaign has created an echo of terror on the left, of course. Part alarmist fundraising necessity on the part of Democrats, part symptom of a conflict-obsessed media, many rational and sane Americans now think that there is a real possibility of Donald Trump will be elected president. I don’t want to encourage complacency by denying the possibility, but I do want to remind everyone: We’re better than that. We’ve shown ourselves to be better than that. Don’t be afraid. Be aware.
By: Ana-Marie Cox, The Daily Beast, January 1, 2016
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“Dear Texas: What Are You Afraid Of Now?”: We Must Live With Our Mistakes. How Else Are We Going To Learn From Them?
Well, there you go again, Texas, making me wish we still had your Molly Ivins around to make sense of you.
As the late, great columnist once so wisely explained, “Many a time freedom has been rolled back — and always for the same reason: fear.”
I took that to heart while reading a boatload of coverage about your elected state school board’s latest effort to indoctrinate its students with the kind of misinformation that’s going to make them the butt of an awful lot of jokes.
This time, you want your children to graduate from high school thinking slavery had nothing to do with the Civil War.
Dear Texas: What are you afraid of now?
We know you’re scared of your women, because you keep trying to eliminate their constitutional right to an abortion. The U.S. Supreme Court put a stop to that stunt, at least for now.
We know you’re scared of progress, too, because you execute more people than any other state in the country. By the way, I’m wearing my favorite T-shirt right now, the one that reads: “I’ll Believe Corporations Are People When Texas Executes One.” Members of my late father’s union, Local 271 of the Utility Workers of America, gave me that T-shirt.
Holy sweet tea, there’s another thing you’re afraid of: unions. Can’t have workers negotiating for wages and benefits in Texas. They might make a living wage.
And now, it looks like you’re afraid of your own history. As The Washington Post‘s Emma Brown reported, this fall Texas students will have brand-new textbooks that cast slavery as a “side issue” of the Civil War. The books don’t even mention Jim Crow laws or the Ku Klux Klan.
Students will read Jefferson Davis’ inaugural address as president of the Confederate States of America, in which he didn’t mention slavery. But students won’t be required to read that famous speech by Davis’ vice-president, Alexander Stephens, “in which he explained that the South’s desire to preserve slavery was the cornerstone of its new government and ‘the immediate cause of the late rupture and present revolution.’”
You see what Stephens did there? Of course you do, which is why he is now Texas’ least popular politician of the Civil War. Next to Abraham Lincoln, I mean. He made the cut for the new book, right? Please say yes.
In 1949, historian Arthur M. Schlesinger Jr. rebutted claims of an earlier generation of revisionists in an essay titled, “The Causes of the Civil War: A Note on Historical Sentimentalism.” He included the essay in his 1963 book, The Politics of Hope, which I pulled off our bookshelf and discovered to be packed with observations about America that are as relevant today — jarringly so — as they were more than five decades ago.
Schlesinger took on the revisionist argument that slavery had little, if anything, to do with the Civil War. The revisionists’ claim is best summarized as follows: “See now, there you go, misunderstanding what was happening in the South. Why, we were this close to freeing the slaves before Lincoln showed up with his uppity self.”
Schlesinger’s response, in part:
“To reject the moral actuality of the Civil War is to foreclose the possibility of an adequate account of its causes. More than that, it is to misconceive and grotesquely to sentimentalize the nature of history. … Nothing exists in history to assure us that the great moral dilemmas can be resolved without pain; we cannot therefore be relieved from the duty of moral judgment on issues so appalling and inescapable as those involved in human slavery; nor can we be consoled by sentimental theories about the needlessness of the Civil War into regarding our own struggles against evil as equally needless.”
We must live with our mistakes. How else are we going to learn from them?
Texas, you go ahead and try to poison the minds of your children, but this version of history won’t fool the independent thinkers among them. As anyone who has raised or taught teenagers knows, they are a challenging age. Not only do they see through our hypocrisy; they call us out on it, too. So annoying, those wicked-smart youngsters.
You can always lure a few suckers when you pander to those who cherish the myths of history more than the truths of its legacy. But we’re talking five million students, and I know from my many visits to your state that you’re not nearly as monolithic as your right-wingers want us Northerners to believe.
Molly Ivins knew that, too — and long before the Internet made it so easy for kids to be kids, with their questioning ways.
“I believe all Southern liberals come from the same starting point — race,” she wrote. “Once you figure out they are lying to you about race, you start to question everything.”
Rip open the chips and pass the chile con queso. I don’t want to miss a minute of this showdown.
By: Connie Schultz, Pulitzer Prize-Winning Columnist and Essayist for Parade magazine; The National Memo, July 9, 2015
“Hey, Liberals; SCOTUS Ain’t Your Friend”: Conservatives Literally Want To Roll Back The Judicial Clock To 1905
It would be understandable if liberals were feeling kind of relaxed, kind of “Supreme Court, what’s so bad?” over the weekend. John Roberts and Anthony Kennedy delivered for our team on Obamacare, and then Kennedy came through again on same-sex marriage. If this is a conservative court, is getting a liberal one—which will be one of the trump-card arguments for voting for Hillary Clinton next fall—really a matter of such pressing urgency?
Well, yes. As we saw yesterday with the court’s death-penalty and EPA rulings, it’s still a long way from being a liberal court. But there’s more to it than that. People should remember that if a Republican is elected president next year and has the chance to replace Kennedy and/or Ruth Bader Ginsburg with another Samuel Alito, the Obamacare and same-sex marriage standings could easily be reversed. And don’t think there aren’t conservatives out there thinking about it, because there most certainly are, and they literally want to roll back the judicial clock to 1905.
An interesting and important debate opened up over the weekend in conservative legal circles that you should take time to educate yourself about. Many conservatives, of course, are furious with Roberts and Kennedy and are wondering, with conservatives like this, who needs liberals?
The ins and outs of the debate were deftly summarized yesterday by Ian Millhiser of Think Progress. I’m not going to take you as deep into the jurisprudential weeds as Millhiser does, but here’s the basic story. Since the 1980s, “judicial restraint” has been the guiding principle of conservative jurisprudence—the idea that judges shouldn’t make law from the bench but should rule more narrowly and modestly, deferring to the other branches. Roberts was invoking judicial restraint during his confirmation hearings with that famous line about judges just calling “balls and strikes.”
Judicial restraint was appealing to conservatives at the time because to a large extent, majorities of the public shared their views on pressing issues of the day. It was liberals back then who were trying to gain through the courts what they could not accomplish through legislatures and the political process.
But now that reality is to a considerable extent reversed. Public opinion is firmly against conservatives on same-sex marriage, and even on Obamacare, though the law (or the name of the law) remains unpopular, polling before last week’s decision showed that majorities didn’t want the Court to take away people’s health-care subsidies. And besides, Obamacare is after all a law, duly passed by the people’s representatives in Washington.
So now it’s the right trying to achieve through the courts outcomes that it could not through the political process. This is what Roberts in essence said in his majority opinion upholding the health-care law. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
All of this takes us back to Lochner v. New York, a 1905 decision that I’m not going to get into here (Millhiser does) but that in essence used the Fourteenth Amendment to extend rights not to individuals but to employers. The decision led to a series of decisions up through the New Deal that invalidated several key pieces of progressive legislation protecting workers and more. The Lochner majority relied on a view of the Fourteenth Amendment that is now discredited—except on the far right.
Which brings us to this past weekend. Conservative Georgetown law professor Randy Barnett wrote a column lambasting judicial restraint, arguing that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB [the first upholding of Obamacare back in 2012] and King.” He wants judges who embrace Lochner and who understand the “duty of judges to invalidate unconstitutional law without restraint or deference.”
Barnett specifically cited Clarence Thomas as an example of a judge who has this depth of understanding. And conservative law professor Jonathan Adler, one of the two, ah, creative minds who brought us the bogus King v. Burwell lawsuit in the first place, tweeted over the weekend that if a Republican wins the election next year, he ought to put Utah Senator Mike Lee on the court. As Millhiser notes, Lee is huge Lochner-ian, to the point that he thinks that Social Security, Medicare, and child labor laws are all unconstitutional.
Barnett wrote in his column that there would heretofore be a new standard that conservative legal scholars will demand of Republican presidential nominees. Now, dimwit candidates like Jeb Bush and Marco Rubio who yammer on about “judicial restraint” and “deference to the other branches” will be exposed as the traitors in waiting that they are, capable of upholding abominable notions like letting people who love each other get married or giving working-class and poor people a little financial help so they can take their kids to the doctor. Judicial restraint, apparently, breeds certain counter-revolutionary tendencies.
And this, finally, circles us back to the 2016 election and health care and marriage equality. Several legal challenges to Obamacare are still pending. Other inventive approaches no doubt await us. For example, a group of legislators in some red state could sue claiming that as the elected representatives of the people, they were denied by the court their proper deliberative role in the process of deciding how to bring health care to their state. If we get a Republican president and he puts a Barnett/Adler-approved justice on the court, poof, sayonara subsidies.
Same-sex marriage’s majority is even more precarious. For example: A gay plaintiff or plaintiffs could bring some kind of discrimination lawsuit (despite the marriage win, there still are other kinds of discrimination lawsuits on the books). A Lochner-loving majority of five could use that suit as the occasion to say, actually, discrimination here is legal, and while we’re at it, this marriage business…
And mind you, from a legal point of view, this would be legitimate. After all, think of it this way: If Kennedy had retired shortly after Citizens United and Barack Obama had put a liberal on the bench, liberals would have advanced at least one legal vehicle to try to get campaign-spending issues before the Court again hoping for reversal. All’s fair in campaign-finance, health care, love, and bigotry.
Imagine how that would feel—same-sex marriage overturned. Right now it’s hypothetical, but it is a long, long way from impossible. And if the Republican wins in 2016, and if Barnett’s arguments carry the day, we could end up with two or three more Alitos on the bench.
Still feeling relaxed?
By: Michael Tomasky, The Daily Beast, June 30, 2015