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“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?

In controversial cases, is the role of jurist to inflame controversy, or quell it?

In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.

The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.

Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.

Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.

Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.

But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.

But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.

He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”

In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”

Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.

Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”

It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.

The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.

And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”

Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.

Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.

I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.

To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.

Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.

And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.

But it is Justice Alito’s parting jab which resonates the most.  Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”  This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.

“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.”  Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.

These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight.  They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.

Were the targets of such acts only gays and lesbians, it would be bad enough.  But these four dissents have encouraged disrespect of the Supreme Court itself.  Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.

 

By: Jay Michaelson, The Daily Beast, June 27, 2015

June 30, 2015 Posted by | 14th Amendment, Marriage Equality, U. S. Supreme Court | , , , , , , , , | 1 Comment

“The GOP’s Obamacare Alternative; Crickets”: Now Railing Against Obamacare Without Having To Come Up With A Replacement

Now that the Supreme Court has saved the Affordable Care Act for a second time, what do Republicans do? We already know they won’t tone down their rhetoric and will continue to call for repeal because that’s what Republican primary voters want to hear. The candidates will package together vague alternative proposals that they will pledge to pass and enact as the first act of their presidency.

But they don’t have even a remote chance of repealing the ACA, even if a Republican is elected president in 2016.

“The ruling is the last gasp,” says Chris Jennings, a health policy expert who worked in both the Clinton and Carter administrations. While the presidential contenders will keep alive the hope for their base that if elected they can sweep away Obamacare, Jennings says the issue will be dead and gone by fall 2016. The voters will have moved on.

Conservatives feel betrayed yet again by Chief Justice John Roberts joining with the liberals on the Court to uphold the constitutionality of the ACA, but they should thank Roberts. He saved the GOP from having to bail out 6½ million people, the majority of them in red states, who would have lost their health insurance if the Court had ruled the other way.

Now Republicans can continue to rail against Obamacare without the responsibility of actually coming up with a law to replace it. “This decision gives them a vast canvas on which to write,” says Jack Pitney, a government professor at Claremont McKenna College in California. “There’s no need for immediate replacement, so rhetoric will fill the vacuum of legislation.”

There will be proposals, enough to satisfy the GOP faithful that the presidential candidates are doing something to end the abomination of Obamacare. But these will not be serious efforts because it is not possible to write health-care legislation that leaves in all the goodies everybody supports, like no discrimination for preexisting conditions, and leaves out what people oppose, like the mandate.

A reading of the majority opinion written by Roberts reveals that he paid close attention to the argument put forth by the health insurance industry in an amicus brief. Without the subsidies, millions could not afford coverage and only those with significant medical expenses would apply, sending the ACA into a “death spiral.”

The Roberts Court handed another lifeline to President Obama, but the decision is also a huge victory for the health industry. Asked how difficult it is for the GOP to step in with their own plan to counter Obamacare, Ceci Connolly, a Health Research Institute Leader and a former Washington Post reporter covering politics and health care, countered with some hard numbers. “The 2.9 trillion dollar health sector is exceedingly complex and changing; it takes an enormous amount of time and work,” she said. “Not only has the ACA expanded coverage, it has pumped billions of dollars in revenue to the health industry, and going back would upset a very large and important market.”

If the subsidies were removed or denied, it would have cost the health industry $36 billion in premium revenue next year alone, Connolly told The Daily Beast. Hospitals would have seen their revenue fall about $9 billion. While still a fraction in a huge market, “that’s real money to the industry,” she says. “The legislative process is cumbersome to say the least, and it would be a steep climb to replace the ACA.”

If a Republican president is elected, and the GOP retains the Senate along with the House, “that’s a new ballgame,” Connolly said. “But by 2017 the law would have been implemented for seven years. It’s very hard to take away benefits and significantly restructure a market as big as the health care market.”

Connolly noted that the executives her research group talks to around the country anticipated the decision to come down the way it did. “They could not imagine the subsidies being taken away.”

The phrase that political scientists use is “past dependency.” Once a major policy is entrenched, it’s very difficult to change in a major way. We’ve seen that with social security and Medicare, programs that President Obama invoked in his remarks in the Rose Garden about the ACA’s rite of passage into “the fabric of America.”

 

By: Eleanor Clift, The Daily Beast, June 25, 2015

June 29, 2015 Posted by | Affordable Care Act, GOP, SCOTUS | , , , , , , , | 1 Comment

“Be Careful What You Wish For”: Dear Ted Cruz; Electing SCOTUS Judges Might Not Work Out As Well For You As You Hope

Flailing about for some sort of cogent conservative reaction to the Supreme Court decisions this week, National Review apparently allowed Ted Cruz to scribble out some meandering prose on its website. That may have been a mistake.

Ted Cruz’ solution to “judicial tyranny”? Direct election of SCOTUS judges. No, really. But let’s set aside the obvious fever dream futility of attempting to make this alteration to the Constitution to serve social conservative interests and take his suggestion at face value.

Direct election of judges has admittedly been a key page out of the conservative playbook for a long time now. Big money in theory keeps justices aligned to corporate interests, while conservative interest groups can ensure that judges fear to render verdicts against their pet issues from guns to gay marriage. As public policy, of course, this is a terrible idea: the entire point of having unelected judges is that they will feel free to protect the Constitution and the rule of law against the unjust tyranny of the majority. Making judges fearful of the public whim negates much of the entire purpose of having a judicial branch to check the legislative.

But even from a purely conservative utilitarian standpoint, that strategy tends to work best in more conservative states and where judges are elected in non-presidential cycles. Also, much has changed in the last decade in terms of popular opinion.

The underpinning of Cruz’ argument seems to be that the justices of the Court have instituted unpopular judicial tyranny on the public by upholding Obamacare and gay marriage. But it’s not at all clear that if Supreme Court judges were elected by popular vote, the results would favor conservative interests. The same demographic forces that make it increasingly difficult for Republicans to win presidential elections would carry similar headwinds against conservative justices. A nation that elected Barack Obama twice would be far likelier to toss out Scalia than Ginsburg.

Moreover, there’s no evidence that a serious public opinion backlash will arise against the Court over marriage equality and the Affordable Care Act, let alone one strong enough to engender a serious recall election threat under such a system. National public opinion has shifted dramatically in favor of marriage equality, and Americans strongly oppose repealing the Affordable Care Act. If Ted Cruz believes a populist backlash would scare the Supreme Court into submission, he’s obviously looking at the wrong polls.

Indeed, by far the most unpopular of the SCOTUS’ recent decisions was its stand on Citizens United: a full 80% of Americans opposed to the decision, and 65% of Americans strongly opposed. The public backlash over giving plutocrats and corporations unfettered purchasing power over our elections has been far stronger than any old-school conservative revanchist revolt against liberal judges.

All of which is to say, Ted Cruz should probably be careful what he wishes for.

 

By: David Atkins, Political Animal Blog, The Washington Monthly, June 27, 2015

June 29, 2015 Posted by | Judicial Elections, SCOTUS, Ted Cruz | , , , , , , | 2 Comments

“A Cinder In The Public Eye”: Clarence Thomas Says Black NBA Players Give SCOTUS A Reason To Gut Anti-Discrimination Law

On Thursday, the Supreme Court saved a key interpretation of the Fair Housing Act—a historic 1968 law that prevents discrimination in the housing market—by ruling in a 5-4 decision that a complaint does not have to prove a policy was overtly or intentionally discriminatory to be valid. It upheld the “disparate impact” standard, which allows complainants to show a policy led to unequal results, no matter the original intention.

Conservative Justice Clarence Thomas dissented from the decision, penned by Justice Anthony Kennedy. He argued that “disparate-impact doctrine defies not only the statutory text, but reality itself.” To make his case, Thomas pointed out that minorities sometimes do quite well. His examples: The Jews in Poland and, in America, the success of black professional basketball players.

Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.” [Legal citations omitted].

Thomas continues:

And if that “racial balancing” is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.”

Sports was a popular example for the dissenting justices. Justice Sam Alito, who wrote a separate dissent, cited the NFL to make a slightly different point:

 Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities […] Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of ” their race?

This is the same court that crippled civil rights legislation two years ago by striking down a key provision of the Voting Rights Act.

 

By: Rebecca Leber, The New Republic, June 25, 2015

June 29, 2015 Posted by | Clarence Thomas, Discrimination, Fair Housing Act | , , , , , , , , | Leave a comment

“I Believe That We Can Win”: The Christian Right Has Lost Political And Cultural Influence

Investigative journalist Brad Friedman has observed that America is moving in a progressive direction, despite the mainstream media’s “center-right nation” shibboleth. Despite the obstacles that have been placed in the pathway of progressives, Friedman is correct beyond dispute.

Think back to a decade ago. Same-sex marriage was considered an abomination in large parts of the country. Christian fundamentalists were flexing their muscles as never before. Rush Limbaugh and Fox dominated the American media landscape. The Bush administration had launched a war on climate science. Massachusetts Governor Mitt Romney was gay-bashing his way to national prominence.

Today, marriage equality is the law of the land. The Christian Right has lost political and cultural influence. Limbaugh’s career is in freefall, and Fox may soon follow. Pope Francis has called upon the world to fight for climate justice. As for Romney, well…

The signs of progressive power are everywhere: the growing momentum of Bernie Sanders’s campaign for the Democratic presidential nomination, the profound failure of the right-wing effort to “repeal and replace” Obamacare, the increasing acceptance of transgender Americans as full and equal citizens, the smashing success of the fossil-fuel divestment movement.

No, we haven’t reached the promised land yet. There are still so many forces of right-wing depravity in our country–some with positions in Congress, some with platforms on cable, some with pistols in churches. Those forces of depravity will not retreat quietly. However, they can and will be defeated.

We’re moving forward. We’re going to make America into what it should have always been all along: a country were any man or woman can rise to the height of his or her potential regardless of race, gender, religion, sexual orientation, disability or income; a country where our public schools never have to lack for adequate funding; a country where we don’t shuffle off to war unless we absolutely have to; a country where we recognize the separation of billionaire and state; a country where we look out for future generations by dramatically reducing our greenhouse gas emissions; a country where a woman can exercise her right to choose in peace; a country where maniacs don’t have easy access to guns; a country where knowledge is embraced and ignorance is scorned.

We’re getting there. Yes, it’s been a long road. We’ve had to endure the racist savagery unleashed by the Southern Strategy. We’ve had to endure that force demonic known as Reaganomics. We’ve had to endure an impeachment over an erection and two stolen elections. We’ve had to endure a lie-based war for oil which left innocent blood on Iraqi soil. We’ve had to endure six years of deranged drama from the bigoted enemies of Barack Obama. It’s been a long time coming…but we’re getting there.

We will leave our children and grandchildren a proud progressive country.

We will repair the damage the right wing has inflicted upon our fair land.

We will remedy the injustices that hurt so many of our fellow citizens.

We will declare independence from ignorance and fidelity to fact.

We will move this country forward forever.

 

By: David Atkins, Political Animal Blog, The Washington Monthly, June 28, 2015

June 29, 2015 Posted by | Christian Right, Marriage Equality, Progressives | , , , , , , , , | 2 Comments

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