“The Arrogance Of The Third Political Branch”: The Supreme Court Uses Judicial Activism For Conservative Ends
We prefer to think of the Supreme Court as an institution apart from politics and above its struggles. In the wake of this week’s decision gutting the heart of the 1965 Voting Rights Act, its actions must now be viewed through the prism of the conservative movement’s five-decade-long quest for power.
Liberals will still win occasional and sometimes partial victories, as they did Wednesday on same-sex marriage. But on issues directly related to political and economic influence, the court’s conservative majority is operating as a political faction, determined to shape a future in which progressives will find themselves at a disadvantage.
It’s true that the rulings voiding the Defense of Marriage Act and California’s Proposition 8 show how the liberalizing trend on some social issues is hard for even a conservative court to resist.
The Defense of Marriage Act was invalidated because one of the conservatives, Justice Anthony Kennedy, has joined much of the American public in an admirable move toward greater sympathy for gay and lesbian rights.
And the decision on California’s anti-gay marriage law was reached by an ideologically eclectic majority on procedural grounds. Five justices held that the case had been improperly presented because the state of California declined to appeal a lower court’s ruling voiding the law.
This led to a middle-of-the-road outcome. The court declined to declare a national, Constitutional right to same-sex marriage, but did give gay-rights advocates a victory in California. By leaving the issue in the electoral sphere in most states, the court opened the way for further advances toward marriage equality, since public opinion is shifting steadily in its favor, fueled by strong support among younger Americans.
The marriage rulings, however, should not distract from the arrogance of power displayed in the voting rights decision written by Chief Justice John Roberts. His opinion involved little Constitutional analysis. He simply substituted the court’s judgment for Congress’ in deciding which states should be covered under the Section 4 of the Voting Rights Act, which required voting rules in states with a history of discrimination to be pre-cleared by the Justice Department.
The court instructed Congress to rewrite the law, even though these sophisticated conservatives certainly know how difficult this will be in the current political climate.
Whenever conservatives on the court have had the opportunity to tilt the playing field toward their own side, they have done so. And in other recent cases, the court has weakened the capacity of Americans to take on corporate power. The conservative majority seems determined to bring us back to the Gilded Age of the 1890s.
The voting rights decision should be seen as following a pattern set by the rulings in Bush v. Gore in 2000 and Citizens United in 2010.
Bush v. Gore had the effect of installing the conservatives’ choice in the White House and allowed him to influence the court’s subsequent direction with his appointments of Roberts and Justice Samuel Alito.
Citizens United swept aside a tradition going back to the Progressive Era — and to the Founders’ deep concern over political corruption — by vastly increasing the power of corporate and monied interests in the electoral sphere.
Tuesday’s Shelby County v. Holder ruling will make it far more difficult for African-Americans to challenge unfair electoral and districting practices. For many states, it will be a Magna Carta to make voting more difficult if they wish to.
The Constitution, through the 14th and 15th Amendments, gives Congress a strong mandate to offer federal redress against discriminatory and regressive actions by state and local governments. As Justice Ruth Bader Ginsburg noted in her scalding but very precise dissent, “a governing political coalition has an incentive to prevent changes in the existing balance of voting power.”
In less diplomatic language, existing majorities may try to fix election laws to make it far more difficult for their opponents to toss them from power in later elections. Republican legislatures around the country passed a spate of voter suppression laws disguised as efforts to guarantee electoral “integrity” for just this purpose.
Recall that when conservatives did not have a clear court majority, they railed against “judicial activism.” Now that they have the capacity to impose their will, many of the same conservatives defend extreme acts of judicial activism by claiming they involve legitimate interpretations of the true meaning of the Constitution.
It is an inconsistency that tells us all we need to know. This is not an argument about what the Constitution says. It is a battle for power. And, despite scattered liberal triumphs, it is a battle that conservatives are winning.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 27, 2013
“The Initiative Process Just Got A Whole Lot Weaker”: How The Supreme Court Crippled Direct Democracy
Gay marriage advocates won a big dual victory in two cases decided by the Supreme Court on Wednesday. But one of the two decisions, the ruling that effectively struck down California’s Proposition 8, may have a very significant impact on governing that’s separate from the gay-marriage issue.
The Prop 8 ruling may have dealt a body blow to the ideal of direct democracy.
California voters approved Prop 8 in 2008. A district court decision later overturned the Prop. 8 law, and California’s elected officials refused to appeal. So the supporters of Proposition 8 sued instead. They won their case over whether they had the right to sue in the California Supreme Court. The U.S. Supreme Court saw things much differently. The Supreme Court, in a 5-4 decision, held that the plaintiffs lacked standing. The court ignored the underlying issue of gay marriage, and instead held that the anti-gay-marriage advocates couldn’t show they were harmed by the state government’s decision to ignore the initiative. The decision quotes an older Supreme Court ruling noting that the doctrine of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” But usurping the power of the political branches is exactly what the initiative is specifically designed to do.
The entire reason for initiatives is to bypass the office-holders in government. Former California Gov. Hiram Johnson, who was responsible for the state’s passage of the direct democracy provisions, said that the initiative would “give to the electorate the power of action when desired.” Frequently, the laws passed by initiative are unpopular or politically unpalatable with elected officials. Consider, for instance, California’s popularly approved initiative that stripped the power of redistricting from the state legislature.
The Supreme Court’s decision may mean that initiatives are now at the mercy of elected officials. Imagine a popularly approved referendum that is challenged and struck down in court. The government can just elect not to appeal — and thanks to the Supreme Court, no private citizens can step in to fill this void.
The track record of elected officials acting against their perceived self-interest is not good. You don’t just have to look at the sorry state of campaign finance laws, which frequently assist the incumbent, or in the use of redistricting to gerrymander impregnable districts. There’s also the initiative’s direct democracy cousin, the recall. In the past two years, we have seen numerous instances of elected officials across the country in local jurisdictions working to subvert the use of the recall against themselves or their colleagues. The officials may refuse to schedule a vote. In other cases, they sue under very questionable legal arguments to stop the recall from taking place. In one instance, a city council tried to kill the adoption of a recall law, only to be overturned by a charter commission and the voters.
Elected officials already have a great weapon. Supporters of recalls or initiatives have to pay legal fees out of their own pocket to force the elected officials to act. Elected officials usually have the luxury of defending the sometimes questionable decisions using government funds. But even that advantage pales in comparison to strength they’ve just been given by the Supreme Court.
Initiatives are frequently divisive and controversial, as Prop 8 shows. But the voters and officials of the 27 states with the initiative or popular referendum process in place are the ones who decided to grant people this power. They adopted these laws specifically to provide a way to bypass the governor and legislature and enact politically unpalatable laws. The Supreme Court may have just effectively shut that route down.
By: Joshua Spivak, The Week, June 28, 2013
“Really, Really Free Enterprise”: California To Wal-Mart, No More Taxpayer Subsidized Profits For You
For years, Wal-Mart—and other large retail operators—have been piling up huge profits by controlling their labor costs through paying employees sub-poverty level wages. As a result, it has long been left to the taxpayer to provide healthcare and other subsidized benefits to the many Wal-Mart employees who are dependent on Medicaid, food stamp programs and subsidized housing in order to keep their families from going under.
With Medicaid eligibility about to be expanded in some 30 states, as a result of the Affordable Care Act, Wal-Mart has responded by cutting employee hours—and thereby wages—even further in order to push more of their workers into state Medicaid programs and increase Wal-Mart profits. Good news for Wal-Mart shareholders and senior management earning the big bucks—not so good for the taxpayers who will now be expected to contribute even larger amounts of money to subsidize Wal-Mart’s burgeoning profits.
But, at long last and in a move gaining popularity around the nation, the State of California is attempting to say ‘enough’ to Wal-Mart and the other large retailers who are looking to the taxpayers to take on the responsibility for the company’s employees—a responsibility Wal-Mart has long refused to accept.
It’s about time.
Legislation is now making its way through the California legislature—with the support of consumer groups, unions and, interestingly, physicians—that would levy a fine of up to $6,000 on employers like Wal-Mart for every full-time employee that ends up on the state’s Medi-Cal program—the California incarnation of Medicaid.
The amount of the fine is no coincidence.
A report released last week by the Democratic staff of the U.S. House Committee on Education and the Workforce, estimates that the cost of Wal-Mart’s failure to adequately pay its employees could total about $5,815 per employee each and every year of employment.
“Accurate and timely data on Wal-Mart’s wage and employment practices is not always readily available. However, occasional releases of demographic data from public assistance programs can provide useful windows into the scope of taxpayer subsidization of Wal-Mart. After analyzing data released by Wisconsin’s Medicaid program, the Democratic staff of the U.S. House Committee on Education and the Workforce estimates that a single 300- person Wal-Mart Supercenter store in Wisconsin likely costs taxpayers at least $904,542 per year and could cost taxpayers up to $1,744,590 per year – about $5,815 per employee.”
Says Sonya Schwartz, program director at the National Academy for State Academy for State Health Policy, “There are concerns that employers will be gaming this new system and taking less and less responsibility for their workers. This may make employers think twice.”
Of course, the California Retailers Association, where Wal-Mart Stores, Inc. is listed as a board member company, is not quite so pleased with the legislation. According to Bill Dombrowski, chief executive of the Association, ”It’s one of the worst job-killer bills I’ve seen in my 20 years in Sacramento, and that says a lot. The unions are fixated on Wal-Mart, but that’s not the issue here. It’s a monster project to implement the Affordable Care Act, and having this thrown on top is not helpful.”
One wonders if we will ever see the day when Americans will stop falling for the hostage-taking narrative consistently put forward by those whose job it is to defend the indefensible. At the first suggestion of finally putting a chink in Wal-Mart’s policy of profiting at the taxpayers’ expense—a practice that should have every American thinking about what passes for free-enterprise in the United States today—the response is to always threaten to take away jobs if we dare to challenge their business practices, even if those practices cost us billions.
While the unions may, indeed, be “fixated” on Wal-Mart, it is hard to miss the fact that Mr. Dombrowski did not even attempt to explain why it is acceptable policy for taxpayers to continue subsidizing Wal-Mart’s ever expanding profits. Nor does Dombrowski attempt to deal with the fact that, according to a Los Angeles Times report, an additional 130,000 people working for large and profitable firms will go onto California’s Medi-Cal rolls over the next few years, bringing the total number of Medicaid recipients in the Golden State who are employed by large companies to just under 400,000 people.
Note that these are not people who rely on ‘government handouts’ because they do not wish to work. Rather, these are people who show up to do their jobs for as many hours a week as their employer will permit them to work.
Interestingly, the federal law imposes a penalty on companies with more than 50 employees who do not provide health insurance to an employee working over 30 hours per week. The feds also penalize a company when its workers buy their own healthcare coverage on an exchange and receives a government subsidy to do so.
However, there is no penalty imposed by the federal government on a company when a company’s workers become eligible for Medicaid.
Think that this ‘oversight’ had anything to do with Wal-Mart’s early support of the Affordable Care Act?
The result is that companies like Wal-Mart are actually encouraged by the federal policy to pay their workers even smaller sums without providing healthcare benefits so that even more of their workers will qualify for Medicaid.
What I always find fascinating is that the very people who are so critical of the subsidies provided by Obamacare to lower-earning Americans (how many times have these people reminded us that “someone is paying for these subsidies”) never seem to have much of a problem with the subsidies we pay to support Wal-Mart’s massive profits by picking up the healthcare tab for so many of the company’s employees. But then, those who support taxpayers doing the job that Wal-Mart should be doing tend to be the same folks who are quick to suggest that nobody is forcing workers to take a job at Wal-Mart. Apparently, these people are operating under the opinion that a Wal-Mart worker earning below the federal poverty level wouldn’t readily move to a better paying job if such a job were available to that worker.
The good news is that the proposed California legislation has a very good chance of becoming law. While the proposed legislation will require a 2/3 vote in both the Senate and Assembly, Democrats currently have supermajorities in both legislative bodies in the state.
Let’s hope that California gets this done and other states are quick to follow California’s lead. This is legislative action whose time is long overdue.
By: Rick Ungar, Op-Ed Contributor, Forbes, June 3, 2013
“A Bygone Era That’s Not So Bygone”: California’s Mental Health System Targeted Latinas For Sterilization For Decades
Latina women in California’s mental health system were disproportionately targeted for forced sterilization for seventy years, according to new research by the University of Michigan.
Between 1909 and 1979, Latina women made up between 20 and 30 percent of the total sterilizations for mental health patients in California. It was during those years that California had in place a law that allowed the state to forcibly sterilize “feeble-minded” women, among others, based on the assumption that their offspring would suffer from the same “problems” that they did:
Various rationales were employed to justify a forced sterilization, including sexual deviance, being labeled as “feeble-minded,” suffering from epilepsy, being an out-of-wedlock adolescent without a support system, or having an I.Q. of 70 or lower. Many of the women sterilized in California were of Mexican origin, came from families disrupted by trans-border migratory patterns and had limited access to education.
The law that permitted forced sterilizations in California was one of a few state eugenics laws, legislative efforts to promote, essentially, selective breeding, weeding out people who society considered genetically imperfect. Often, eugenics laws are racially motivated by the belief that one race or ethnic group is genetically inferior to another.
Last year, a similar study by the University of Vermont found that African American women at some points in the 1960s accounted for as much as 60 percent of forced sterilizations in the state. Legislators tried to pass a compensatory bill for the victims, but the effort never made it into law, and thousands of black women in the state still live with the trauma of forced sterilization.
While it may seem like something out of a bygone era, quasi-eugenic views actually still do have some support. A recent immigration policy report by the conservative think tank The Heritage Foundation was co-authored by a man who thought that Latino immigrants would give birth to children with lower IQs.
By: Anne-Rose Strasser, Think Progress, June 3, 2013
“Affordable And Accessable”: The Shocking Truth About Obamacare’s Rate Shock
Imagine you went to Best Buy and found a great deal on a plasma television set. I want to be clear here: You didn’t find a great television set. This television set is actually a bit crummy. The picture is fuzzy. Consumer Reports says it breaks down a lot and it’s expensive to fix. But it’s really cheap. The price tag reads $109.
When you take it to the counter, the saleswoman tells you that the set will actually cost you $199. And count yourself lucky, she confides in a conspiratorial whisper. There are customers whom Best Buy won’t sell it to at any price. You ask her which customers those are. The ones who need the TV most, she replies.
So here’s the question: Does that television really cost $109?
Best Buy, of course, would never do this to you. If they say you can buy a television set for $109, you can buy it for $109. Plus, they’re handsome, and their customer service is great, and I hope they advertise in The Washington Post forevermore, amen.
But this is actually how the individual health-insurance market works. And understanding why is crucial to understanding a lot of what you’re going to read about health reform in the next year.
Last week, California released early information on the rates insurers intend to charge on the new insurance marketplaces — known as “exchanges” — that the state is setting up under Obamacare. They were far lower than anyone expected. Where analysts had anticipated average premiums of $400 to $500, insurers were actually charging $200 to $300. “This is a home run for consumers in every region of California,” crowed Peter Lee, director of the state’s exchanges.
The Affordable Care Act’s critics saw it differently. Avik Roy, a conservative health writer at Forbes, said Lee was being “misleading” and that “Obamacare, in fact, will increase individual-market premiums in California by as much as 146 percent.” Obamacare, he said, would trigger “rate shock,” the jolt people feel when they see higher rates. That doesn’t sound like a home run at all.
Who’s right? In typical columnist fashion, I’m not going to tell you just yet. But stick with me, and you’ll be able to parse the next year of confused and confusing Obamacare arguments with ease.
Here’s the first thing to know: We’re talking about a small fraction of the American health-care system. This isn’t about people on Medicare or Medicaid or employer-based insurance. It’s about people joining Obamacare’s insurance exchanges. That’s people who buy insurance on their own now, as well as some of the uninsured. In 2014, 7 million people, or 2.5 percent of the population, is expected to buy insurance through the exchanges. By 2023, that will rise to 24 million people, or 8 percent.
So we’re talking about a small portion of the market. Worse, we’re talking about that small portion of the market all wrong.
Roy got his 146 percent by heading to eHealthInsurance.com, running a search for insurance plans in California and comparing the cost of the cheapest plans to the cost of the plans being offered in the exchanges. That’s not just comparing apples to oranges. It’s comparing apples to oranges that the fruit guy may not even let you buy.
I ran the same search Roy did. I looked for insurance in Irvine, Calif. — my home town. The average monthly premiums of the five cheapest plans is $114. So I took the middle plan, HealthNet’s IFP PPO Value 4500. It’s got a $4,500 deductible, a $2,500 deductible for brand-name medications, huge co-pays and a little “bestseller” icon next to it. And it’s only $109 a month — if they’ll sell it to you for that price.
That’s the catch, and it’s a big one. Click to buy the plan and eventually you’ll have to answer pages and pages of questions about your health history. Ever had cancer? How about an ulcer? How about a headache? Do you feel sad when it rains? When it doesn’t rain? Is there a history of cardiovascular disease in your family? Have you ever known anyone who had the flu? The actual cost of the plan will depend on how you answer those questions.
According to HealthCare.gov, 14 percent of people who try to buy that plan are turned away outright. Another 12 percent are told they’ll have to pay more than $109. So a quarter of the people who try to buy this insurance product for $109 a month are told they can’t. Those are the people who need insurance most — they are sick, or were sick, or are likely to get sick. So, again, is $109 really the price of this plan?
Comparing the pre-underwriting price of this plan to those in Obamacare’s exchanges is ridiculous. The plans in Obamacare’s exchanges have to include those people. They can’t turn anyone away or jack up rates because of a history of arthritis or heart disease.
They also have to offer insurance that meets a certain minimum standard. Under Obamacare, for instance, the out-of-pocket limit for someone making 100 to 200 percent of the poverty line is $1,983. Under the Value 4500, you could spend up to $9,500 before the out-of-pocket limit kicked in. Obamacare also has subsidies for people making up to four times the poverty line. The poor pay next to nothing. The rich pay full freight.
“We as a society have never really said here’s what reasonable insurance is,” says Larry Levitt of the Kaiser Family Foundation. “It’s just been anything goes. For the first time they’re setting a minimum about what reasonable insurance should be.” They’re also setting a minimum about who should be able to get it, and at what cost. Now it really will work like Best Buy, where the price on the tag is the price everyone actually pays.
Some people will find the new rules make insurance more expensive. That’s in part because their health insurance was made cheap by turning away sick people. The new rules also won’t allow for as much discrimination based on age or gender. The flip side of that, of course, is that many will suddenly find their health insurance is much cheaper, or they will find that, for the first time, they’re not turned away when they try to buy health insurance.
That’s why the law is expected to insure almost 25 million people in the first decade: It makes health insurance affordable and accessible to millions who couldn’t get it before. To judge it from a baseline that leaves them out — a baseline that asks only what the wealthy and healthy will pay and ignores the benefits to the poor, the sick, the old, and women — well, that is a bit shocking.
By: Ezra Klein, Wonkblog, The Washington Post, June 1, 2013
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