“The Republican Party Is Becoming Goofy”: Judge Richard Posner Bashes Supreme Court’s Citizens United Ruling
The American political system is marked by legal corruption in which “wealthy people essential bribe legislators” with campaign contributions, according to one of the nation’s most influential federal judges.
Speaking to foreign educators, Judge Richard Posner told the assembled that the wealthy give lots of money to legislators and that an individual legislator “knows that if he doesn’t promote the interests of the donor,” he won’t get any more money.
Posner is a renowned member of the Chicago-based Seventh Circuit Court of Appeals. He is not only the nation’s most prolific jurist-academic, he is seen by some as the most influential judge outside of the nine members of the U.S. Supreme Court.
Posner is intellectually fearless and, increasingly, far from the reflexively conservative thinker that he’s been long seen to be. In a recent National Public Radio interview, he spoke of the “real deterioration in conservative thinking” in recent years. “I’ve become less conservative since the Republican Party started becoming goofy.”
Posner has taken a poke at the high court’s controversial ruling before. But he’s taking his disdain for the decision to a broader audience. His latest comments came at a post-luncheon appearance Thursday before visiting Asian legal academics at the University of Chicago Law School, where he remains a faculty member.
Posner left no doubt about his criticism of the Supreme Court’s Citizens United campaign-finance decision. He said, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”
He also didn’t mind naming some names, in particular that of Justice Antonin Scalia, a onetime member of the law school faculty who lectured and taught at the school in February. Posner brought up the Supreme Court’s 2008 decision in District of Columbia v. Heller, affirming the right of individuals to have handguns at home for self-defense.
Posner doesn’t think the Second Amendment has anything to do with an individual’s right to bear arms, a basis of the decision for which Scalia wrote the majority opinion.
“That didn’t slow down Scalia,” Posner told his Asian listeners. “He loves guns. He’s a hunter.”
By: James Warren, The Daily Beast, July 14, 2012
“Supreme Conflict”: Was Justice Clarence Thomas Behind The Obamacare Leaks?
The biggest revelation in CBS News reporter Jan Crawford’s piece on the Supreme Court’s health care deliberations isn’t that Chief Justice John Roberts originally voted to strike down the Affordable Care Act and then changed his mind — Crawford merely confirmed what many people already expected based on evidence in the opinions themselves. Rather, the biggest revelation is that fact that, in order for her piece to exist at all, someone inside the Court must have leaked confidential informationto her.
Yesterday, the New York Times‘ Adam Liptak strongly implied that the leak could be Justice Clarence Thomas:
[T]he possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. The CBS News report, attributed to two sources with “specific knowledge of the deliberations,” appeared to give voice to the frustrations of people associated with the court’s conservative wing. It was written by Jan Crawford, whose 2007 book, “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,” was warmly received by conservatives.
In a 2009 interview on C-Span, Justice Thomas singled her out as a favorite reporter. “There are wonderful people out here who do a good job — do a fantastic job — like Jan Greenburg,” Justice Thomas said, referring to Ms. Crawford by her married name at the time.
Thomas’ affection for Crawford is mutual, and Crawford has spent years defending Thomas against his critics. At times, these defenses have been thoughtful and compelling, such as when she shot down the ridiculous idea that Thomas is merely a lapdog for his less conservative colleague Justice Antonin Scalia, or when she defended Thomas’ wife’s Ginni’s right to have her own career regardless of what her husband does for a living. At other times, they have been much less thoughtful, such as when Crawford accused Senate Majority Leader Harry Reid (D-NV) of racism for criticizing Thomas. Crawford has also conducted high-profile interviews of Thomas in the past.
None of this, of course, proves conclusively that Thomas is one of Crawford’s two sources. But it does demonstrate that the two of them have a strong working relationship based on mutual admiration for each other. If Thomas were looking to leak confidential information to a member of the Supreme Court press, it is likely that he would choose the one reporter he has publicly revealed to be his favorite. The fact that that reporter is a well-regarded conservative journalist who also works for a high profile outlet is gravy.
If Thomas is the leak, that would be a shocking escalation from the justices normal tactics — and one which could have lasting consequences for the future. Appellate courts function because of the assumption that their members can openly discuss their thoughts and misgivings about individual cases without fear that those discussions will later be used to embarrass them. If that assumption no longer prevails in Supreme Court conferences, the Court will morph into a far less deliberative, more factional institution.
Yet Thomas has shown no indication in the past that he cares about the sanctity of institutions or the consequences of his actions. Thomas continually finds himself embroiled in ethics scandals, including a high-profile gifting scandal similar to the one that forced Justice Abe Fortas to resign from the bench in 1969. Thomas’ jurisprudence is equally reckless, as he would declare everything from national child labor laws to the federal ban on whites-only lunch counters unconstitutional.
If Thomas did leak the Court’s deliberations, that still leaves open who the second leaker is (Noam Scheiber makes a strong case that the second leak could be Justice Kennedy). At the moment, however, we know that Thomas is the justice who is most likely to cast long-established practices aside due to a personal crusade. And we know that he already has a good relationship with the reporter who received the Supreme leak.
BY: Ian Millhiser, Think Progress, July 3, 2012
“Tying Themselves Into Knots”: Romney Adviser Contradicts A GOP Talking Point
Some Republicans knew that nominating a governor who had signed a healthcare reform law with an individual insurance mandate would be a problem. It would muddy their anti-Obamacare message, they warned, even if Mitt Romney could claim that he supports mandates only at the state level. Well, their fears were well-founded.
Consider the gaffe made by Eric Fehrnstrom, a top Romney campaign adviser, on MSNBC Monday morning. As I reported on Sunday night, Republicans and conservatives have tried to make the best of the Supreme Court’s decision to uphold the Affordable Care Act by saying that if it is justified under Congress’s taxing power, then it must be a tax increase, and a massive one at that.
But Romney, who signed a law that, just like the ACA, imposes a penalty on individuals who don’t buy insurance, does not like to admit that he raised taxes. (That’s why, as governor of Massachusetts, he mostly sought to increase revenue through new and higher user fees, including preposterously cruel ones, such as imposing a $10 fee for a certificate of blindness.)
These conflicting lines got crossed when Ferhnstrom said, “The governor disagreed with the ruling of the Court, he agreed with the dissent that was written by Justice Scalia, that very clearly said that the mandate was not a tax. The governor believes what we put in place in Massachusetts was a penalty and he disagrees with the Court’s ruling that the mandate was a tax.” This flies in the face of claims by Congressional Republicans and conservative talking heads such as Rush Limbaugh, who say that the ACA is a tax. Fehrnstrom is also contradicting his own candidate who admitted back in 2008 that the penalty for not buying insurance in Massachusetts is a kind of tax.
But Congressional Republican aides tell the Washington Post’s Greg Sargent that they can continue to make this argument even as the Romney campaign says the opposite. He writes:
You’d think the fact that the GOP presidential nominee’s campaign has now confirmed that Obamacare’s mandate is not a tax would undercut the use of this talking point by GOP Congressional officials, right?
You’d be wrong. One senior Congressional aide tells me that Republicans will continue to describe it in those terms. And a second senior GOP Congressional aide emails that there is no contradiction here.…
The Romney campaign and Republican Congressional officials alike both agree with Scalia’s argument that the mandate is not a tax in the sense that claiming it is a tax makes it Constitutional, even as Republican officials continue to argue that the mandate is a tax in the sense that SCOTUS said it was in the course of upholding the law.
It’s a clever argument, and a sort of technically consistent. But, as Sargent’s Post colleague Rachel Weiner points out, “That line of attack is more easily maintained by Republicans who never imposed any such mandate.” It’s irritating to see the GOP paying so little political penalty for their complete flip-flop on the individual mandate, but it’s satisfying to see that by nominating Romney they will at least tie themselves into knots over it.
By: Ben Adler, The Nation, July 2, 2012
“A Blatant Political Actor”: Justice Scalia Must Resign
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if . . . my ‘impartiality might reasonably be questioned,’ ” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees.
“I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 27, 2012
“Reeking Of Politics”: Class War At The Supreme Court
On the eve of the Supreme Court’s much anticipated ruling on Obamacare, here is a simple test for detecting the politics behind a decision: When reading the rulings, look for the double standards and answers to questions not posed by the cases themselves. By those measures, the Supreme Court’s record in the past week fairly reeks of the justices’ politics.
Exhibit A is Justice Samuel Alito’s majority opinion in Knox v. Service Employees International Union, Local 1000, in which nonunion California state employees whose wages and benefits were nonetheless set through the collective bargaining process of SEIU — the state’s largest union — sued the local to get back a special dues assessment it levied in 2005 to fight two ballot measures. The union’s normal practice was to allow nonmembers to opt out of paying the roughly 44 percent of dues that went to matters not directly related to collective bargaining, such as election campaigns. In this instance, however, no such opt-out was allowed.
The issue before the court was whether mandating the collection of the special assessment from nonmembers violated their constitutional rights to free speech. Alito and the four other conservative justices ruled that it did, and liberal Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed in a concurring opinion. But Alito’s opinion didn’t stop there. It also changed the long-standing practice of allowing nonmembers to opt out of paying dues toward union functions outside collective bargaining, mandating instead that the unions “may not exact any funds from nonmembers without their affirmative consent.” In other words, unions would have to ask for nonmembers’ permission to collect political assessments and, possibly, any dues at all. “Individuals should not be compelled to subsidize private groups or private speech,” Alito wrote.
Alito’s ruling struck at the heart of American unionism. By laying the groundwork for creating a right for nonmembers to avoid dues payments, he came close to nationalizing the right-to-work laws that 23 states have adopted (though 27 have not). As Sotomayor noted in a somewhat astonished dissent (Ginsburg and Justices Stephen Breyer and Elena Kagan dissented on this point as well), this wasn’t the question before the court. Neither side had argued that issue in their briefs or oral presentations. “The majority announces its novel rule,” Sotomayor wrote, “without any analysis of potential countervailing arguments.” And it did so in defiance of the court’s own Rule 14, which states that “only the questions set out in the petition or fairly included therein will be considered by the Court.”
Taken in context with the conservative majority’s other recent rulings, Alito’s opinion also revealed the most class-based double standard the court has exhibited since before the New Deal. In the 2010 case Citizens United v. Federal Election Commission — rendered by the same five justices who signed onto Alito’s ruling in Knox — the court ruled that corporations could directly spend their resources on political campaigns. These two decisions mean that a person who goes to work for the unionized Acme Widget Company can refuse to pay for the union’s intervention in political campaigns but has no recourse to reclaim the value of his labor that Acme reaps and opts to spend on political campaigns. Citizens United created a legal parity between companies and unions — both are free to dip into their treasuries for political activities — but Knox creates a legal disparity between them: a worker’s free-speech right entitles him to withhold funds from union campaign and lobbying activities, but not the value of his work from the company’s similar endeavors.
If you seek a precedent for this anomaly, might I suggest the following sentiment on unions written (not in a court ruling, mind you) by former president William Howard Taft in 1922, when he was chief justice: “That faction we have to hit every little while.” That’s the “legal” tradition to which Alito adhered: fear and loathing of workers’ organizations.
The club champion for double standards, however, is not Alito but Antonin Scalia. Dissenting from this week’s decision striking down major provisions in Arizona’s anti-immigrant law, he argued that Arizona has the sovereign rights of a nation in protecting its borders — a right he gleans through such a bizarre reading of the Constitution that not one of his fellow conservatives signed on to his dissent. Yet the same day, Scalia signed on to a Gang of Five decision declining to hear Montana’s case that its century-old law banning corporate contributions to political campaigns should take precedence over Citizens United. In the world according to Nino, Arizona has the rights of a nation-state, but Montana must submit to the Gang of Five. You’re sovereign when Scalia agrees with you; you’re nothing when he doesn’t.
Politics? Heaven forfend!
By: Harold Meyerson, Opinion Writer, The Washington Post, June 26, 2012
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