“SCOTUS Hypocrisy”: To Conservative Justices, Congress’ Wishes Only Matter When They Line Up With The Conservative Worldview
The last two days have been clarifying when it comes to the Supreme Court. In ruling successfully against the Voting Rights Act yesterday and voting unsuccessfully to uphold the Defense of Marriage Act today, the court’s conservative wing has shown that it has little interest in following Chief Justice John Roberts’ famous directive to “call balls and strikes,” but instead is fully behind judicial activism in support of the conservative cause.
Today, the court’s liberal wing, joined by Justice Anthony Kennedy, struck down the Defense of Marriage Act – which denied federal benefits to married same-sex couples – as unconstitutional on equal protection grounds in a 5-4 decision. Kennedy wrote that DOMA “is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Basically, according to the court, DOMA discriminated against those with legitimate marriages for no real reason and is thus history. U.S. News’ Robert Schlesinger put it correctly, writing, DOMA “was a vicious and discriminatory piece of waste and our union is a little more perfect without it.”
In their dissents, the court’s conservatives – Roberts, along with Justices Antonin Scalia, Clarence Thomas and Samuel Alito – wrote that the majority should not have overruled Congress, which approved DOMA in 1996. Scalia even wrote that the majority’s opinion “is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”
But yesterday, in ruling that Section 4 of the 1965 Voting Rights Act is unconstitutional, the court’s conservatives – joined by Kennedy this time – had no such qualms about explicitly overruling Congress, which had renewed the law in 2006 by overwhelming margins: the then-Republican-controlled house voted 390-33 in favor, while the count in the Republican-controlled Senate was 98-0.
But no matter. In their opinion, written by Roberts, the conservative justices said, “Congress could have updated the [Section 4] coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional.” As Scott Lemieux writes at Lawyers, Guns and Money, Roberts’ opinion includes only “astoundingly weak justifications for striking down a major act of Congress,” with nothing more than “some handwaving to obviously irrelevant provisions of the Constitution.”
So yesterday, according to the court’s conservatives, Congress had no business approving a law meant to keep states and localities from disenfranchising voters. Today, though, all due deference should be given to Congress’ awful attempt to render gay marriages nonexistent under federal law. Evidently, to those four justices, Congress’ wishes only matter when they line up with Congress’ wishes only matter when they line up with the conservative worldview. Otherwise, Congress is merely a speed bump. And that’s no way to run the highest court in the land.
By: Pat Garofalo, U. S. News and World Report, June 26, 2013
“Succumbing To A Right Wing Project”: Will We Love The Health-Care Law If It Dies?
Any day now, the U.S. Supreme Court may make possible something that has yet to happen: an honest and complete discussion of the Patient Protection and Affordable Care Act (ACA).
And if it throws out all or part of the law now popularly known as “Obamacare,” we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.
I still harbor the perhaps naïve hope that some conservative justices — Anthony Kennedy? John Roberts? — will pull back from judicial activism and allow the voters to decide the fate of the health-care law in this fall’s elections. And here is where the court’s reintroduction of the health-care issue into the political debate could be turned into a blessing by allies of reform, provided they take advantage of the opportunity to do what they have never done adequately up to now. They need, finally, to describe and defend the law and what it does.
The ACA is the victim of a vicious cycle: Obamacare polls badly. Therefore, Democrats avoid Obamacare, preferring to talk about almost anything else, while Republicans and conservatives attack it regularly. This makes Obamacare’s poll ratings even worse, which only reinforces the avoidance on the liberal side.
The media have abetted the problem, but this is partly a response to the impact of the vicious cycle on how the issue has been framed. As a study by the Project for Excellence in Journalism has shown, terms used by opponents of the law, such as “government-run,” were much more common in the coverage than terms such as “pre-existing conditions.”
Maybe now, supporters of the ACA will find their voices and point to the 30 million people the law would help to buy health insurance, how much assistance it gives businesses, how it creates a more rational health insurance market, how it helps those 26 and under stay on their parents’ health plans, how it protects those with pre-existing conditions. “Obamacare” isn’t about President Obama. It’s about beginning to bring an end to the scandal of a very rich nation leaving so many of its citizens without basic health coverage. However the court rules, we need to remember why this whole fight started in the first place.
If the court does strike down the law, those concerned that criticisms of its ruling might undermine the “legitimacy” of the judiciary should put their worries aside. Conservative justices long ago shattered the court’s standing as a nonpartisan, non-ideological actor in our governing system. That’s why recent surveys have found its approval rating on the decline.
As retired Supreme Court Justice John Paul Stevens noted 12 years ago in a powerful dissent, the court’s Bush v. Gore decision threatened “the nation’s confidence in the judge as an impartial guardian of the rule of law.” It’s gotten worse since. The 2010 Citizens United decision stands as another ruling that plainly strengthens conservative monied interests in the electoral arena. Please don’t tell me that these justices are entirely without a political agenda.
But friends of the health-care law need to acknowledge upfront that no matter how effectively they criticize the court, a ruling against it would be a real defeat — for the president, for the cause of expanding insurance coverage, and for progressives generally. Neither Obama nor his congressional allies would have wasted the time and political capital entailed in passing health-care reform if they had known that their efforts would be struck down by the judiciary even before the law came fully into force.
Enacting any sort of health-care reform is, as we have seen repeatedly since Harry Truman called for universal coverage, a gargantuan task. Balancing the many interests involved (and, ironically, the individual health-insurance mandate was a concession to conservative interest groups) is exceedingly difficult. For unelected judges to give the back of their hands to legislators whose job is to solve problems while accounting for competing priorities would be the height of arrogance and a flight from democracy. But all the liberal anger in the world will not make up for the size of the setback.
Were the health-care law to be eviscerated, those who battled so hard on its behalf might draw at least bittersweet comfort from what could be called the Joni Mitchell Rule, named after the folk singer who instructed us that “you don’t know what you’ve got till it’s gone.”
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 24, 2012
“The Many Faces Of Evil”: In The GOP, Personality Is Not Policy
As we know, Mitt Romney is not all that likeable. Now Mike Huckabee, there’s a likeable guy. He used to say (and maybe still does) that he’s a conservative, but he’s not angry about it. It was a clever line, positing himself as the happy warrior and other Republicans as needlessly unpleasant. Huckabee has an easy smile and a friendly laugh. He plays bass. He invites liberals on his television and radio shows to have respectful discussions about issues. So how do we interpret it when Huckabee allows fundraising letters to be sent out under his name that say things like this:
“Listen, you’re a person of faith and so am I. In his administration and now on his re-election campaign, President Obama has surrounded himself with morally repugnant political whores with misshapen values and gutter-level ethics.”
Yeesh. Should this lead us to change our opinion of Huckabee? Or can you be a likeable guy and a vicious partisan at the same time? Now maybe Huckabee never saw the letter, but I doubt it. It’s not like he’s running a corporation with 50,000 employees that puts out hundreds of documents every day. And honestly, I always found Huckabee to be a contradiction, someone with a pleasant persona and some decidedly unpleasant views. But this is a good reminder that we shouldn’t substitute our impressions of someone’s manner for a judgment about how they’ll perform in their public duties.
This works in the opposite direction, too. Let’s take Rick Santorum. His views on just about everything are pretty much what Mike Huckabee’s are. He got a lot of attention for his harshly judgmental opinions about gay people, but I can’t remember Huckabee ever saying anything substantively different. The reason Santorum stands out is that he is a deeply unpleasant person. He always looks like he just stepped in dog poop, the dog poop being the moral sewer that is American culture. You can see him tense up when he’s confronted by people who disagrees with him, while Huckabee smiles and laughs, disarming people with his affability. But they both believe the same things. I doubt a Huckabee presidency would have been much different from a Santorum presidency.
It’s easy to get this kind of misleading impression about someone, particularly because figuring out the substance of what someone believes can be a lengthy and tedious process, but we’re all very good at making quick judgments about whether or not we like a person. And the consequences can be serious. You might remember that when John Roberts got nominated to the Supreme Court, he was roundly praised for being so personable and reasonable. He smiled and spoke slowly and carefully. He talked in baseball metaphors. Everything about his manner made him seem moderate and thoughtful. And in the end, he turned out to be the very definition of a radical conservative judicial activist.
BY: Paul Waldman, The American Prospect, May 16, 2012
“Mirror, Mirror On The Wall”: Grassley Backs Off Claim That Obama Is ‘Stupid’
Late last week, Sen. Chuck Grassley (R-IA), the ranking minority member of the Senate Judiciary Committee, suggested in a tweet that President Obama is “stupid” because Grassley objected to the president’s recent comments on judicial activism. President Obama’s comments warned that conservatives have historically rejected the idea that an “unelected group of people would somehow overturn a duly constituted and passed law” — a position that Grassley himself held as recently as 2011.
At an event in Dubuque, Iowa yesterday, Grassley backed off his claim that the first black president of the Harvard Law Review lacks intelligence:
“I had a comment; I should have been a little more diplomatic,” Grassley said, referring to his controversial tweet and drawing laughter from the gathering of about 50 people, “because the president is an intelligent man.”
Grassley added later, “He said something stupid. I say something stupid. We all say something stupid from time to time.” . . .
“What bothers me is the fact that (Obama) knows all about Marbury v. Madison (a historic case that established judicial review) and the Constitution allowing the courts to be independent and in the process of independence to declare acts of Congress unconstitutional,” Grassley said. “He shouldn’t have done it, and he knows that. And I think that he ought to apologize to the American people for not respecting the independence of the judiciary.”
Grassley is right that all people, including elected officials, sometimes misspeak and say something that does not accurately convey their meaning. In Obama’s case, he said something which could plausibly be interpreted as claiming that judges can never strike down a federal law, and then elaborated on that comment shortly thereafter to clarify that he did not intend something that is obviously false. President Obama’s full statement, that there are no modern precedents for judges second guessing Congress’ economic policy judgment such as the Affordable Care Act, cannot reasonably be disputed.
Nevertheless, Grassley seems determined not to take his own advice, even as he backs off his most insulting claim that Obama is “stupid.” Grassley’s claim that Obama needs to apologize is ridiculous, especially because it is hard to distinguish Obama’s remarks from years of anti-judicial rhetoric from George W. Bush.
By: Ian Millhiser, Think Progress, April 11, 2012
“Refusing To Comply With Laws”: The Strange New Meaning Of “Religious Freedom”
Whatever ultimately happens in various ongoing collisions between conservative clergy and laws to which they object, it is clear the former have already won a significant victory in convincing millions of Americans that “religious freedom” means the right to have one’s particular religious views explicitly reflected in public policy. That is definitely the position of the nation’s Catholic bishops, who contend they should be able to operate a wide range of quasi-public services and also enjoy the use of public subsidies, while refusing to comply with laws and regulations that contradict their religious or moral teachings.
I’ve argued in the past that what the bishops are actually seeking is not “freedom” but a sort of unwritten concordat—a broad zone of immunity from laws they choose to regard as offensive. Now there is nothing terribly unusual or inherently outrageous about this desire; Vatican diplomacy for centuries has focused on the establishment of such arrangements—though typically written rather than plenary—with a wide array of governments. It’s the idea that this sort of arrangement involves “freedom” rather than frankly acknowledged special privileges that’s novel. And it leads to some rather strange conclusions, viz. this conservative post celebrating an anti-Obama protest in San Francisco and identifying special concessions to religious groups as an example of “American exceptionalism:”
Friday, one thousand Bay Area Catholics gathered outside the Federal Building in San Francisco to celebrate America’s exceptional guarantee of freedom of religion, and defend against an unprecedented assault by the Obama Administration.
The rally was among the largest of over 100 protests by Catholics around the nation on the second (ahem) birthday of Obamacare.
From the podium, Northern California Catholic religious and secular leaders openly urged citizens to register to vote and cast ballots against President Obama in the general election, in what they called an end to “quiet conformity” by religious Americans….
The City Square, a Bay Area blog, described this religious backlash as nothing less than the opening of a second front in the “war for freedom”, alongside the Tea Party movement’s economic freedom agenda.
That is indeed an apt comparison, since the Tea Party, too, has a very special definition of “freedom.”
Still, it’s odd to hear people describe the kind of concessions to broad rights of religious self-regulation that are exceedingly common in countries without a constitutional history of church-state separation as peculiarly American.
And it’s not a view that’s been smiled upon very often by the official arbitors of the Constitution, the federal courts, as Sarah Posner recently explained at Religion Dispatches:
Conservative claims of infringement of religious freedom…are on shaky constitutional footing. Although Catholic Charities lost challenges to similar policies in state courts in California and New York, several Catholic and evangelical universities have sued HHS in federal courts around the country, charging that the contraception coverage requirement violates their religious freedom. While a federal court has yet to rule on the mandate, a ruling issued late Friday night demonstrates how the claim of infringement of religious freedom undermines the First Amendment’s prohibition on government establishment of religion.
In that case, the American Civil Liberties Union had challenged an HHS policy allowing the USCCB, which received funding under the Trafficking Victims Protection Act, to refuse to refer victims of rape and sexual assault for contraceptive and abortion services. Although the Bishops and their Republican allies argue that requiring them to refer women and girls for reproductive health services amounted to a government interference with their religious freedom, Judge Richard Stearns held that allowing them to refuse to make these referrals amounted to an impermissible government endorsement of religion.
While that case would not require courts outside of Massachusetts to reach the same conclusion, or to reach the same conclusion in the lawsuits against the insurance coverage requirement, it does provide a roadmap for how a court would weigh a Free Exercise claim against an Establishment Clause claim.
Now some conservative Catholics, and many of their conservative evangelical allies (who have fully internalized David Barton’s revisionist “Christian Nation” theory that the Founders had no intention of fostering church-state separation) would view Judge Stearns’ decision as an exercise in “judicial activism” on the behalf of an aggressively “secularist” agenda. But like the Right’s redefinition of religious freedom itself, this point of view is decidedly recent in origin, and better described as “radical” than as “conservative” in spirit.
But that’s true as well of much of the American Right’s current ideological tendencies. Somehow or other, public programs as well as constitutional doctrines that the country has lived with peacefully since at least the New Deal are being denounced as involving aggressive, sinister, and even Satanic attacks on traditional liberties. That’s the connection between the protesters in San Francisco bearing “Obama the Judas of America” signs and their comrades carrying images of Andrew Breitbart outside the Supreme Court.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 27, 2012
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