“Happy New Year, Losers”: The “Supreme Court Gap” In Unversal Health-Care Coverage
Chief Justice Roberts wishes a Happy New Year to all those losers who will not get health care insurance, thanks to his clever reading of the Constitution. There are 4.8 million of these losers and 2.6 million of them are people of color, black and Hispanic mainly. Not that the Chief Justice and his right-wing colleagues on the Supreme Court would make racist distinctions. No, no, no. They assure us their decision is solely driven by a matter of high comstittional principle—States Rights.
The problem with these people is that they are low-income adults without dependent children—not quite poor enough to qualify for Medicaid nor old enough to qualify for Medicare. President Obama’s original legislation took care of them by expanding Medicaid coverage and putting up the federal money to pay for it. The Roberts decision insisted that state governmednts have a constitutional right to reject this financial aid from Washington. And twenty-five states took him up on the offer.
This odd failure will probably be blamed on Obama but should rightly be called the “Supreme Court gap” in unversal health-care coverage. Because these folks do not not quite earn enough to qualify for Obamacare’s tax credits to help people purchase health insurance. A report from the Kaiser Family Foundation outlined the consequences. “Most of these individuals have very limited coverage options and are likely to remain uninsured,” the foundation explained.
Of course, they could get a job that pays more. Or maybe get married and have children that would qualify them for Medicaid. State governments set many of the rules for Medicaid coverage and some conservatives think fedeal aid saps individual initiative and rewards indolence. It is not entirely a coincidence that many of these rejectionist states are the same states that defied the Supreme Court half a century ago and resisted racial integration and equal rights for minorities. Some of them are the very states that went to war to defend slavery. Republicans are sometimes called a “neo-confederate party.” After the Supreme Court gutted the voting-rights act, the neo-confederates were free to pass restrictive laws designed to shrink minority voting, and so they did.
The Kaiser Foundation doesn’t get into any of that but simply observed, “These continued coverage gaps will likely lead to widening racial and ethnic as well as geographic disparities in coverage and access.”
Don McCanne of Physicians for A National Health Program circulated the Kaiser report with this comment: “What a terrible way to start the first of the year of what is essentially the full implementation of the Affordable Care Act. It seems pretty obvious what our New Year’s resolution should be. Let’s bring health care to everyone through an improved and expanded Medicare for all.”
Democrats ought to call out Republicans on these questions. And citizens generally ought to call out the Roberts court. The Supremes have done quite a lot in the last fifteen years to mess up our already weakened democratic system. They stole the presidential election in 2000. They cut loose big money to swamp elections by destroying lawful restraints. They are trying step-by-step to restore hoary old legalisms that favor capital over labor, corporations over individuals. Shouldn’t we be talking about how to stop them?
By: Wiliam Greider, The Nation, December 31, 2013
“Sympathy For The Devil Worshipers”: SCOTUS Struggles Not To Become De Facto Prayer Editors
It’s easy enough to be in favor of a “nonsectarian” prayer before a legislative session — some invocation of a higher power that theoretically doesn’t exclude anyone (besides atheists, that is) — but what exactly does such a prayer sound like?
That was Justice Samuel Alito’s question during oral arguments at the Supreme Court Wednesday morning in the case of Town of Greece v. Galloway, and it got to the heart of the court’s basic discomfort with cases asking it to decide whether specific government-sponsored prayers cross the constitutional line and “establish” religion in violation of the First Amendment.
In Greece, a town of just under 100,000 in western New York, town officials invite local clergy to offer a prayer before monthly town board meetings. The prayers may technically be given by anyone, but for nine years they were exclusively Christian, many using language such as “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” Two residents sued the town under the First Amendment.
Standing before the court, the residents’ lawyer, Douglas Laycock, suggested that a nonsectarian prayer would be satisfactory. Justice Alito wasn’t so sure.
“How could you do it?” Justice Alito asked. “Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus … Wiccans, Baha’i.”
“And atheists,” Justice Antonin Scalia added. “Throw in atheists, too.”
Mr. Laycock reminded the justices that atheists were already out of luck based on the court’s prior decisions. Then, riffling through his documents, he suggested, “The prayers to the Almighty, prayers to the Creator.”
“To ‘the Almighty,’” Justice Alito said skeptically. “So if — if a particular religion believes in more than one god, that’s acceptable to them?”
Justice Scalia, often impatient in religion cases, couldn’t resist. “What about devil worshipers?”
Over the laughter of the courtroom, Mr. Laycock said meekly, “Well, if devil worshipers believe the devil is the almighty, they might be okay. But they’re probably out.”
And so it went, the justices trying in vain to determine what sort of prayer, if any, would be sufficiently nonsectarian, and who should be responsible for making that determination. None of them seemed to relish the idea of playing at prayer editor.
As the argument progressed it was increasingly difficult to discern any grounds on which to justify legislative prayer other than the fact that it’s something we’ve always done — which was the basis for the court’s ruling upholding such a prayer in the Nebraska legislature in 1983, when it last considered the question.
Lawyers for the town leaned heavily on that ruling, but several of the justices seemed uneasy with its rationale. “The history doesn’t make it clear that a particular practice is okay going on in the future,” Chief Justice John Roberts said. “We’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800. But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it?”
The question answered itself, and was a reminder of how much the country’s religious makeup has changed over the past two centuries. Justice Alito emphasized the point in returning to his earlier concern about workability. While the U.S. may once have been “98-percent-plus Protestant,” he said, today “there are all sorts of other adherents to all sorts of other religions. And they all should be treated equally, and — but I don’t — I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups.”
Mr. Laycock agreed, and reached the inevitable conclusion to that argument. “We cannot treat everybody, literally everybody, equally without eliminating prayer altogether.”
But there is an alternative to “eliminating” prayer — a moment of silence, which is what the town of Greece did for years without complaint. It allows everyone to pray exactly as they wish; it even makes room for the atheists and devil worshipers.
For some — including several members of the current court — a “silence only” policy is surely a step too far. But it would be a reasonable compromise in a pluralistic society, and for justices who don’t want to become de facto prayer editors, it’s a bright line on an otherwise blurry canvas of conflicting tests and standards that have rarely satisfied anyone.
By: Jesse Wegman, Editors Blog, The New York Times, November 6, 2013
“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.
Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”
Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.
By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013
“A Pattern For The Court”: SCOTUS’s Meaningless Death Penalty Rules
Monday evening, the state of Florida executed John Errol Ferguson. This was not an act of injustice because Ferguson was innocent—he brutally killed eight people. It was an act of injustice because Ferguson was mentally ill. The Eighth Amendment forbids his execution.
In 2008, the Supreme Court held that a person cannot be executed if he or she is insane at the time of his or her execution. To the extent that the term has meaning, it’s hard to imagine that it doesn’t apply to Ferguson, who experts have testified has a “genuine belief” that he is the “prince of God” and has the power to control the sun. Stephanie Mencimer of Mother Jones details Ferguson’s history of mental illness:
Ferguson’s story, and long-documented record of mental illness, starts back in 1965, when records show Ferguson was suffering from hallucinations. In 1971, he was committed to a state mental hospital after being diagnosed as a paranoid schizophrenic. For the next several years, court-appointed doctors repeatedly reported that Ferguson was psychotic and in need of long-term hospitalization.
In 1975, a court-appointed psychiatrist reported that Ferguson was “suffering from a major mental disorder and is extremely dangerous to himself and others. He is dangerous to the point where he is considered homicidal … He should be in a maximum security ward … He should not be released under any circumstances.”
As Mencimer goes on to explain, Ferguson was nonetheless released from custody, a decision and failure of judgment that cost eight people their lives. Yet Florida continues to deny the obvious about Ferguson’s paranoid schizophrenia. Despite its earlier command, the Supreme Court allowed him to be executed without comment.
This kind of outcome is becoming a pattern for the Court, as we saw earlier this year with respect to its formal holding that executing someone with a severe mental handicap violates the Eighth Amendment. The Supreme Court’s prohibition on executing the mentally handicapped or severely ill have become more of a Potemkin village façade of fairness than the real thing because of its refusal to define or enforce any kind of substantive standard to determine whom the rule applies to. The Court’s deference to state determinations—no matter how implausible they are—means that the only states that won’t execute those with severe mental incapacities are those already committed not to doing so. Any state that lacks that commitment can proceed as before.
This is illustrative of the larger problem with the death penalty: The American criminal-justice system does not appear capable of rationally designating only those most clearly culpable of heinous crimes for execution. It remains true, in the memorable phrase of Justice Potter Stewart, that capital punishment as applied by the states is “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Some people are executed while others found guilty of more horrible crimes in the same state are not, and some people who are executed are probably not guilty of anything. The Supreme Court’s occasional gestures towards making the death penalty less arbitrary have done almost nothing to alter this fact.
And yet, as Sarah Muller of MSNBC points out, not only is Florida refraining from tightening its procedures, it’s actively seeking to speed up executions with its “Timely Justice Act.” It’s become increasingly hard to imagine that the Supreme Court will stand in the state’s way, which will have the effect of making an already unjust and error-prone process for killing people even more so.
By: Scott Lemieux, The American Prospect, August 7, 2013
“Antonin Scalia Is Angry, Again”: The Only Principle That Guides Him Is What He Can Get Away With
Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas, Justice Antonin Scalia wrote a blistering dissent. “What a massive disruption of the current social order,” he practically wailed from the page. He said that the Court had “largely signed on to the so-called homosexual agenda,” and contrasted the Court with the good people of America, who “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” And perhaps most notably, Scalia lamented that under the rationale the Court’s majority was using, the government wouldn’t be able to prohibit gay people from getting married. To each other!
He was right about that, anyway. But his dissent in today’s case invalidating the Defense of Marriage Act is a somewhat different beast. Scalia spends the first 18 pages of his 26-page dissent far from the moral questions that had so animated him before; instead, he confines himself to arguing that the Court shouldn’t have decided the case at all. Scalia is apparently deeply concerned that the Court is butting its nose in where the legislature should have the final say (more on that in a moment).
But when he finally gets to discussing the merits of the case, Scalia does not disappoint. While the rousing moral condemnations of homosexuality may be absent, Scalia deploys the cries of victimhood now so popular on the right with gusto. By forbidding us from discriminating against gays, you’re discriminating against us. By calling our prejudice against gays what it is, you’re injuring us.
Scalia is outraged at the majority’s contention that the core purpose of DOMA was to discriminate against gay people, and this, he asserts, means that they’re calling everyone who supports it a monster. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution,” he writes.
And more: “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.” Woah, there, buddy! Did anyone actually call you an enemy of the human race? Touchy, touchy.
But then Scalia updates his prediction from ten years ago, and he probably has a point: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
On this point, Scalia probably knows what he’s talking about. After all, this is a guy who, in a decision delivered just yesterday, helped gut the Voting Rights Act, one of the most important pieces of legislation ever passed by Congress and one that was reauthorized in 2006 by votes of 390-33 in the House and 98-0 in the Senate, yet spends two-thirds of this very dissent arguing that the Supreme Court is a bunch of black-robed tyrants when they invalidate a law passed by Congress. In other words, despite his carefully cultivated reputation as a principled “originalist,” the only principle that guides Antonin Scalia is “what he can get away with.” For him, it’s the outcome that matters. The justification comes after. Is that true of the Court’s liberals as well? Maybe. But it’s a little rich to make that charge when your own hypocrisy is on such obvious display.
By: Paul Waldman, Contributing Editor, The American Prospect, June 26, 2013
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