“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
“Just Something To Think About”: 15 Major Decisions This Year From A Partisan Supreme Court
Since Monday’s dramatic Supreme Court decisions, I’ve seen a few people recall that back in 2000, a lot of liberals justified voting for Ralph Nader (or not voting at all) on the basis that there wasn’t a dime’s worth of difference between George W. Bush and Al Gore. Bush appointed John Roberts and Samuel Alito to the high court, and it’s safe to say that Gore’s nominees would have been somewhat different, so it’s unlikely we’ll be hearing that argument again. Wherever you place your priorities in terms of the actions of the executive branch, at this point in history, the nominating of Supreme Court justices has become extremely partisan, in a way that isn’t necessarily bad.
What I mean is that whatever the preferences of a particular president, his or her nominee will have to fit within a predictable mold set by the president’s party. For Republicans, that probably means someone who served in a previous Republican president’s Justice Department (as both Roberts and Alito did in Reagan’s), is a member of the Federalist Society, may have done some corporate work on the side, and spent a few years issuing safely conservative rulings on an appellate court. For Democrats, it probably means someone who is an academic (like Elena Kagan), or if not, someone whose record on the bench gives a clear indication of their leanings (like Sonia Sotomayor)—and is more likely to be a woman or a member of a racial or ethnic minority.
As George W. Bush found out when he tried to nominate his good buddy Harriet Miers, the president’s party won’t tolerate someone without a clear record—they want to be sure that they’ll get exactly what they expect from a justice. That means that there will be no surprises for anybody (not that people can’t be fooled a little bit; with a friendly smile, a soothing voice, and some patently disingenuous baseball metaphors, John Roberts convinced a lot of Democrats he might be something other than the intensely ideological justice he has been).
As I said, this isn’t necessarily bad; a justice like David Souter who surprises everyone is only pleasing if the surprise works to your side’s benefit. But now that the Supreme Court’s term has ended in dramatic fashion, it’s worth taking a moment to look back on what they did over the past year, in case anyone is harboring any lingering doubts about the importance of the Court. Here are some of the major decisions, and a quick glance at them shows just how much impact the Supreme Court has on all of our lives:
- McCutcheon v. FEC: The law limiting the total amount a donor can give to multiple political candidates was struck down.
- Schuette v. Coalition to Defend Affirmative Action: Michigan’s law banning affirmative action at state universities is constitutional.
- EPA v. EME Homer City Generation: The EPA’s rules curtailing air pollution that travels from one state to another are constitutional.
- Greece, NY v. Galloway: Local officials can open public meetings with sectarian prayers.
- Hall v. Florida: Florida’s rule that anyone with an IQ over 70 can be executed is unconstitutional.
- Wood v. Moss: The Secret Service was justified in moving protesters opposed to the president farther from where he was having lunch than protesters supporting the president.
- Abramski v. U.S.: “Straw purchases” of guns are illegal.
- Lane v. Franks: A whistleblower can’t be fired for testifying in court.
- Utility Air Regulatory Group v. EPA: The Environmental Protection Agency’s ability to regulate greenhouse gas emissions is upheld.
- Riley v. California: Police need a warrant to search your cell phone.
- ABC v. Aereo: Aereo’s model of streaming over-the-air broadcasts to subscribers was declared illegal.
- McCullen v. Coakley: A 35-foot buffer zone to prevent harassment outside abortion clinics was struck down.
- NLRB v. Canning: The president can’t make recess appointments during pro forma Senate sessions.
- Harris v. Quinn: Home health care workers paid by the state don’t have to contribute to unions that negotiate on their behalf.
- Burwell v. Hobby Lobby: “Closely held” companies can deny their employees health coverage for contraception.
These are just some of the 74 opinions the Court delivered during this term. They range over a broad swath of commercial, political, and personal activity. And while there were a few cases where the Court was unanimous, as a general rule the more important a case is, the more likely there is to be a partisan division whose outcome is determined by who appointed the current nine justices.
Three of the current justices (Scalia, Kennedy, and Breyer) are in their 70s, and one (Ginsberg) is in her 80s. The next president, particularly if he or she serves two terms, is probably going to have the opportunity to reshape the Court for decades to come. Just something to think about.
By: Paul Waldman, Contributing Editor, The American Prospect, July 1, 2014
“The Big Green Test”: Conservatives And Climate Change
On Sunday Henry Paulson, the former Treasury secretary and a lifelong Republican, had an Op-Ed article about climate policy in The New York Times. In the article, he declared that man-made climate change is “the challenge of our time,” and called for a national tax on carbon emissions to encourage conservation and the adoption of green technologies. Considering the prevalence of climate denial within today’s G.O.P., and the absolute opposition to any kind of tax increase, this was a brave stand to take.
But not nearly brave enough. Emissions taxes are the Economics 101 solution to pollution problems; every economist I know would start cheering wildly if Congress voted in a clean, across-the-board carbon tax. But that isn’t going to happen in the foreseeable future. A carbon tax may be the best thing we could do, but we won’t actually do it.
Yet there are a number of second-best things (in the technical sense, as I’ll explain shortly) that we’re either doing already or might do soon. And the question for Mr. Paulson and other conservatives who consider themselves environmentalists is whether they’re willing to accept second-best answers, and in particular whether they’re willing to accept second-best answers implemented by the other party. If they aren’t, their supposed environmentalism is an empty gesture.
Let me give some examples of what I’m talking about.
First, consider rules like fuel efficiency standards, or “net metering” mandates requiring that utilities buy back the electricity generated by homeowners’ solar panels. Any economics student can tell you that such rules are inefficient compared with the clean incentives provided by an emissions tax. But we don’t have an emissions tax, and fuel efficiency rules and net metering reduce greenhouse gas emissions. So a question for conservative environmentalists: Do you support the continuation of such mandates, or are you with the business groups (spearheaded by the Koch brothers) campaigning to eliminate them and impose fees on home solar installations?
Second, consider government support for clean energy via subsidies and loan guarantees. Again, if we had an appropriately high emissions tax such support might not be necessary (there would be a case for investment promotion even then, but never mind). But we don’t have such a tax. So the question is, Are you O.K. with things like loan guarantees for solar plants, even though we know that some loans will go bad, Solyndra-style?
Finally, what about the Environmental Protection Agency’s proposal that it use its regulatory authority to impose large reductions in emissions from power plants? The agency is eager to pursue market-friendly solutions to the extent it can — basically by imposing emissions limits on states, while encouraging states or groups of states to create cap-and-trade systems that effectively put a price on carbon. But this will nonetheless be a partial approach that addresses only one source of greenhouse gas emissions. Are you willing to support this partial approach?
By the way: Readers well versed in economics will recognize that I’m talking about what is technically known as the “theory of the second best.” According to this theory, distortions in one market — in this case, the fact that there are large social costs to carbon emissions, but individuals and firms don’t pay a price for emitting carbon — can justify government intervention in other, related markets. Second-best arguments have a dubious reputation in economics, because the right policy is always to eliminate the primary distortion, if you can. But sometimes you can’t, and this is one of those times.
Which brings me back to Mr. Paulson. In his Op-Ed he likens the climate crisis to the financial crisis he helped confront in 2008. Unfortunately, it’s not a very good analogy: In the financial crisis he could credibly argue that disaster was only days away, while the climate catastrophe will unfold over many decades.
So let me suggest a different analogy, one that he probably won’t like. In policy terms, climate action — if it happens at all — will probably look like health reform. That is, it will be an awkward compromise dictated in part by the need to appease special interests, not the clean, simple solution you would have implemented if you could have started from scratch. It will be the subject of intense partisanship, relying overwhelmingly on support from just one party, and will be the subject of constant, hysterical attacks. And it will, if we’re lucky, nonetheless do the job.
Did I mention that health reform is clearly working, despite its flaws?
The question for Mr. Paulson and those of similar views is whether they’re willing to go along with that kind of imperfection. If they are, welcome aboard.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 22, 2014
“Who Says Obama Can’t Lead?”: While Obama Is Exhibiting Leadership With Finesse, Republicans Have Run Into A Wall
Last week, an NBC/Wall Street Journal poll found President Obama tying his record low approval rating of 41 percent. NBC’s Chuck Todd, referring to another poll result showing that 54 percent of Americans “no longer feel that he is able to lead the country and get the job done,” told the hosts of MSNBC’s “Morning Joe,” “Essentially the public is saying, ‘Your presidency is over.’”
Similarly, political analyst Charlie Cook, citing Gallup survey data, wrote in National Journal, “There was a point when voters hit the mute button and stopped listening to George H.W. Bush and then to his son George W. Bush. We now seem to have reached that point with Obama.”
But one morsel from the NBC/WSJ poll didn’t fit that narrative: 67 percent of respondents are in favor of the president’s newly announced regulations “to set strict carbon dioxide emission limits on existing coal-fired power plants.” And when the pollsters re-asked the question, after presenting supporting and opposing arguments, including charges of “fewer jobs” and “higher prices,” approval held with a healthy 53 percent to 39 percent margin.
That’s a hell of a lot of support for a major presidential initiative from an electorate supposedly no longer listening to the president.
What did Obama do right?
Adhering to a favorite maxim of U.S. presidents of both parties that it’s remarkable how much you can accomplish if you don’t care who gets the credit, Obama tapped EPA Administrator Gina McCarthy to announce the plan and stump for it in media interviews. By keeping a relatively low-profile, Obama tempered the media’s tendency to polarize everything while dampening conservative backlash, a strategy that previously helped shepherd the Dodd-Frank financial regulation law and the repeal of the military’s Don’t Ask, Don’t Tell policy on gays and lesbians.
Additionally, the Obama administration avoided a united corporate front against the plan by reaching out to industries about to be regulated. While the U.S Chamber of Commerce chose to oppose the plan before it was released, the power plant industry’s main lobby refused to reinforce the attack. Instead, it released a positive statement expressing appreciation for the “range of compliance options” offered by the EPA.
The statement was short of an outright endorsement, leaving room for further negotiation. Days later, McCarthy began that negotiation, meeting with and winning praise from utility executives for “listening to the concerns that we had” and being “willing to have that dialogue.” With the utility industry signaling détente, Republicans couldn’t validate conservatives’ sky-is-falling claims with the voices of those most directly impacted by the proposed regulations.
While Obama was exhibiting leadership with finesse, Republicans decided to run into a wall. Instead of training their fire on the climate proposal in the days following the June 2 release, they obsessed over freed prisoner of war Bowe Bergdahl. Whatever one’s opinion of the terms of the prisoner swap with the Taliban, it’s a done deal—and the climate rule is not. Republicans had a moment to redirect the climate debate for the duration of Obama’s presidency away from the losing effort of denying the science and toward the more fertile ground of jobs and prices. Myopically, they used that moment to chase the shiny object of the 24-hour news cycle.
Obama may not have been leading on climate in the conventional sense: preaching from the bully pulpit and rallying the public to pressure Washington to act. But prominent political scientists will tell you that’s not how presidential leadership usually works. As George Washington University professor John Sides explained to Slate, “The idea that presidents accomplish more if they give the right speech is magical thinking.”
Yet, the president has bucked the trend of history and successfully used the bully pulpit to advance another major goal: raising the minimum wage. Anticipating obstinacy from House Republicans, he told the states during his January 2014 State of the Union address, “You don’t have to wait for Congress to act.” He followed up that call with several outside-the-Beltway stump speeches urging states to raise their minimum wage above the federal standard.
The stumping is working. So far this year, eight states have raised their minimums and later this week Massachusetts will make it nine. Others may follow suit as more than 30 state legislatures have been compelled to consider minimum wage measures, and activists in eight states are pursuing November referendums. As with climate, this is not the kind of impact a president makes if the public has “stopped listening.”
But since bully pulpit tactics are not the norm of presidential leadership, it’s not all that important if the public doesn’t “tune in” to hear the president anymore. The test of a president’s leadership is whether he is in-tune enough with the public, and deft enough with the levers of power, to accomplish what is feasible.
If I were a Republican, I would not be savoring Obama’s 41 percent approval rating and presuming his presidency was done. I would be worried about my party’s 29 percent approval rating, its 15 percent level of support among Latinos and Obama’s plans to take executive action on immigration reform if House Republicans don’t act by July 31. If you think Obama isn’t able to lead on immigration, after what he has done on climate and minimum wage, you haven’t been paying attention.
By: Bill Scher, Contributor, Real Clear Politics, June 23, 2014
“Joni Ernst Fights For Dirty Water In Iowa”: Shows How Far Republican Candidates Have Drifted From The Party’s Old Moorings
Joni Ernst, the winner of the Iowa Senate Republican primary on Tuesday, has a briefcase full of the usual shopworn, hard-right policies: no same-sex marriage, no reform of immigration, no federal minimum wage, no Education Department, no progressive tax code. She still clings to the idea of private accounts for Social Security.
But one of her positions, expressed at a recent debate, demonstrates a particularly pernicious and little-known crusade of the modern Republican Party: she opposes the Clean Water Act. She called it one of the most damaging laws for business.
That a Senate nominee could take this position, even more than the others, shows how far Republican candidates have drifted from the party’s old moorings. In 1972, the Clean Water Act passed with full bipartisan support, and is widely regarded as one of the most successful environmental acts ever passed. It doubled the number of rivers, streams and lakes suitable for fishing and swimming. It drastically reduced the amount of chemicals in drinking water, and substantially increased the size of protected wetlands. Rivers no longer catch fire.
The law’s value is so obvious that it shouldn’t even be necessary to defend it. But in Iowa, it remains a divisive issue, and Ms. Ernst’s offhand remark was a clear signal to the state’s big agricultural interests of which side she is on.
Iowa’s waterways are notoriously dirty, the result of runoffs from vast livestock operations and crop fertilizer. The problem has become worse in recent years with a sharp increase in the global demand for pork, leading to enormous hog farms that pack tens of thousands of pigs into small spaces. Last year, the Des Moines water utility had to turn on, for the first time, the world’s largest nitrate-removal plant to get the chemical — the result of manure and fertilizer pollution — out of people’s taps. (Excessive nitrates can cause cancer and miscarriages, and are linked to “blue baby syndrome,” in which infants suffocate.)
“The issue is the quality of the water in the Raccoon and the Des Moines” rivers, Bill Stowe, the waterworks manager, told the Des Moines Register last year. “This trend is absolutely off the scale. It’s like having serial tornadoes. You can deal with one, you can deal with two, but you can’t deal with them every day.”
For years, the state’s Department of Natural Resources, which is in the pocket of big agriculture, didn’t deal with the runoff problems. And two years ago, the Environmental Protection Agency told the state that it was violating the Clean Water Act and must immediately do a better job. State farm operations and politicians have bridled at the moderate increase in regulation that resulted, and last year House Republicans passed a bill that would undermine enforcement of the Clean Water Act, giving the states much more power to set their own rules. (Fortunately the bill was never taken up in the Senate.)
Ms. Ernst wants to take the seat of Senator Tom Harkin, who is retiring after compiling a strong liberal and pro-environmental record. For Iowans who worry about what’s coming out of their faucets, she has a great deal of explaining to do.
By: David Firestone, Editors Blog, The New York Times, June 4, 2014
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