“An Alternative Legislature”: Judicial Activists In The Supreme Court
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.
Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.
The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.
One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”
Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?
The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.
“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”
Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?
Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”
This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 28, 2012
“Number One Geopolitical Foe”: Romney’s Comments On Russia ‘Are A Bit Puzzling’
GOP presidential frontrunner Mitt Romney thought his mediocre campaign stumbled upon a game changer this week when President Obama was caught on an open mic telling Russian President Dimitry Medvedev that he’d be more “flexible” on issues like missile defense after the election. Romney called Obama’s comment “frightening” because Russia “is without question our number one geopolitical foe.” As evidence, Romney said “it is always Russia” that opposes the United States at the United Nations.
The Washington Post’s Glenn Kessler looked into this claim and concluded that “Romney’s comments are a bit puzzling“:
But on the broader question of Iran and North Korea, Romney’s comments are a bit puzzling. Russia has repeatedly supported resolutions that have sought to limit Tehran’s and Pyongyang’s nuclear ambitions, such as the 2010 Security Council resolution that paved the way for increasingly tough sanctions on Iran.
As we wrote in our book on former Secretary of State Condoleezza Rice, some of the negotiations leading up to those resolutions were difficult and contentious, but it would be wrong to say Russia was “standing up” for those “bad actors.” Russia has cast no vetoes on resolutions concerning Iran and North Korea.
Indeed, Romney has been misrepresenting Obama’s record on Russia and Iran throughout the presidential campaign. “Had he gotten Russia to agree to impose tough, crippling sanctions on Iran, we could have put a lot more pressure on Iran,” Romney said back in September.
But as this blog noted at the time, the Obama administration spearheaded an effort to apply tougher sanctions on Iran in 2010. In June, Russia voted for U.N. Security Council Resolution 1929, which imposed a fourth round of tough sanctions on Iran because of it’s failure to comply with earlier resolutions demanding an end to nuclear enrichment. Last Spring, a U.N. experts panel on the sanctions concluded that the new measures “are constraining Iran’s procurement of items related to prohibited nuclear and ballistic missile activity and thus slowing development of these programs.”
Romney said this week that he does not think Obama “can recover” from the fallout of his comments to Medvedev. But it might turn out that it’s the former Massachusetts governor who will have some more explaining to do. Apart from being wrong on the substance of his attack on Obama, House Speaker John Boehner (R-OH) basically told Romney to stop criticizing the president and even some of Romney’s supporters have said publicly that he’s wrong to say that Russia is America’s “number one geopolitical foe.”
By: Ben Armbruster, Think Progress, March 28, 2012
“At The Heart Of An Ideology”: Republicans Are Causing A Moral Crisis In America
There is moral crisis afoot! So say the Republican candidates for president, their pals in Congress and in state houses. Abortion, gay marriage, contraception— contraception, for Pete’s sake — things that so shock the conscience that it’s a wonder The Washington Post can even print the words!
Here’s something I bet you wouldn’t think I’d say: They’re right. There is a moral crisis in the United States. The only thing is — they’re wrong about what it is and who is causing it.
The real crisis of public morality in the United States doesn’t lie in the private decisions Americans make in their lives or their bedrooms; it lies at the heart of an ideology — and a set of policies — that the right-wing has used to batter and browbeat their fellow Americans.
They dress these policies up sometimes, give them catchy titles like Rep. Paul Ryan’s “Path to Prosperity.” But they never cease to imbue them with the kind of moral decisions that ought to make anyone furious. Ryan’s latest budget really is case in point. It’s a plan that says that increases in defense spending are so essential, that massive tax cuts for the wealthy are so necessary, that we must pay for them by ripping a hole in the social safety net. The poor need Medicaid to pay for medicine and treatment for their families? We care, we really do, but the wealthy need tax cuts more. Food stamps the only thing standing between your children and starvation? Listen, we feel your pain. We get it. But we’ve got more important things to spend money on. Like a new yacht for that guy who only has one yacht.
It’s hard to point to a single priority of the Republican Party these days that isn’t steeped in moral failing while being dressed up in moral righteousness. This week, for example, they are hoping the Supreme Court will be persuaded by radical (and ridiculous) constitutional arguments to throw out some or all of the Affordable Care Act. Sure, you could argue that it’s really nice to make sure 31 million people who didn’t have health care can get it. Sure you could make the case that lifetime limits are a bad thing, that women shouldn’t have to pay more for health insurance just because they’re women, that the United States shouldn’t be a country where you die because you lost your coverage when you lost your job. But then again, liberty. Let’s not forget liberty. Also, freedom.
It is a very strange thing that the people who lecture most fervently about morality are those who are most willing to fight for policies that are so immoral. They watch Wall Street turn itself into the Las Vegas strip, take the economy down and destroy people’s lives and livelihoods. To that they say, “By God we need less regulation. Get me the hose, I have things to water down!” They see a CEO of a bank or a corporation, someone who passed off all of the risk and took on all of the reward, and they say, “Get that man a bigger bonus! In fact, get him two!”
They see corporate interests flood the political system with unfathomably large sums of money, they see lobbyists defining the terms of debate, and they say, “Now this . . . this is what democracy should look like.”
They see an environmental crisis spinning out of control, the effects of climate change being felt already, the possibility of the biggest natural disaster in modern human history. To which they ask, “Anyone know if we can drill this hole any deeper?”
So yes, Rick Santorum. Yes, Mitt Romney. Yes, Paul Ryan and Republican politicians all over this nation. You are right, as right as you’ve ever been. There is a moral crisis in this country. A horrifyingly, back-breaking, bankrupt-the-core-of-this-nation style crisis. But it isn’t women or the poor or the middle class or the gay community or health-care advocates or environmentalists that are causing it.
It’s you.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, March 27, 2012
“Blood Stained Hands”: America Safe For The Dick Cheneys But Not The Trayvon Martins
The heart just given to Dick Cheney…was Trayvon Martin’s. One is 71, the other 17.
What if that were literally true?
Let’s just say the metaphor tells a bitter truth: We are a nation safe for mean old white men in frail health. However, healthy black youths (most of all in the South) may be in peril with every breath and step they take out on the streets alone and unarmed. Just for living in black skin.
Apparently, wearing a hoodie further ratchets up the risk of being a black youth. The 17-year-old black slaying victim, Trayvon, was wearing one as he fell to the ground. “Hoodie protests” in New York, Philadelphia, Washington, and other cities in his memory have pointed to the loaded pack of prejudices associated with a simple sartorial style.
Oh, did I mention his fatal encounter was in a “gated community” (an oxymoron)? While they tend to be suspicious of dark teenage strangers, the message they send to all comers is “keep out,” not “come in.”
In the saddest story of 2012, a neighborhood watch “volunteer,” George Zimmerman, apparently concluded young Trayvon had no right nor reason to be walking the streets of Sanford, Fla., by himself with just a can of iced tea and some Skittles candy.
Zimmerman, an armed civilian, took the law into his own hands, reportedly starting a confrontation with Trayvon, even as he was told by a dispatcher to stop following the youth tagged as trouble. But it was Zimmerman who spelled trouble, in my reading of the facts. (No charges have been pressed against Zimmerman as of now.) Federal authorities are going to step in and investigate, thank goodness—a little late better than never.
In other words, if Zimmerman wasn’t looking for a fight, spoiling for one with his gun, this tragedy would not have come to pass. As it was, Trayvon knew he was facing serious danger and begged for his life—his very short life, I might add. All that he never got to see: “Gleams that untravelled world,” as the poet Lord Alfred Tennyson put it. It all ended with a bullet wound to the chest in February in Florida.
Florida bears blame for the outrage by having a vigilante justice system under a sitting Republican governor. The law they call “stand your ground” sanctions weapons of law enforcement to trigger-happy civilians like Zimmerman who have none of the training, scrutiny, code of conduct, or judgment of sworn police officers. Very nice, Florida, you’ve done it again. The year 2000 seems like yesterday.
I’ve seen law experts compare this case to the brutal murder of a 14-year-old Emmett Till in 1955, down South in the Mississippi Delta. Emmett, a black youth from Chicago, was a city boy visiting relatives that summer in a small town named Money. He didn’t know what he was up against in the strict code of conduct between whites and Negroes. Seen by some as a boy who stepped out of his place, he paid the ultimate price for it.
No question Till’s murder was a race-related hate crime in 1955, the year after Jim Crow laws were struck down by the Supreme Court. Yes, he was out of place, far from home when he lost his life for nothing.
But here’s the rub in 2012: Tall Trayvon was just a soon-to-be dead boy walking, on the way to becoming a young man. He got caught in racial crossfire on his own southern state’s home ground, not while visiting a strange land of hateful segregation. And yet he still got gunned down, in the eyes of multitudes, and for the color of his skin.
Meanwhile Cheney, doctors say, is doing “exceedingly well” in his white skin after a heart transplant. In his time, he’s been known to get aggressive in starting some scrapes, but they never left a mark on him. They are known as wars of choice in far-off lands. You can’t see the blood, but it’s on his hands.
By: Jamie Stiehm, U. S. News and World Report, March 27, 2012
“Hello Public Option”: The Public’s Inch-Deep Hate Affair With The Individual Mandate
Maybe the individual mandate is doomed, as an agitated-slash-celebratory Twitterverse seemed convinced after conservative Supreme Court justices posed challenging questions about it (shocking!) on the second day of arguments on the Affordable Care Act. If the justices vote later this year to kill it, with the possibility that the whole law will collapse as a result, Republicans would be vindicated in their fight against “big government.” But in practical terms, would the country really know what it has lost?
From a political standpoint, the mandate invented by the GOP of yore (“yore” being a dozen years ago) has been manna for today’s GOP. Polling shows the requirement to buy insurance or pay a fine — meant to discourage freeloaders — has become highly unpopular. Strangely, the dreaded mandate is not particularly unpopular in Massachusetts, the only state that charges penalties for not buying coverage.
Disapproval of the individual mandate nationally, meanwhile, seems to be a mile wide but not all that deep. There’s evidence that many people don’t understand what it is, why it is, and how it would affect them, and that their answers change depending on word choice and word sequence.
They like it better – about even with disapprovers in a Pew poll — if the last thing they hear is about subsidies to help lower-income people buy insurance. They like it somewhat when it’s explained that without it, people would just buy insurance when they got sick (driving up costs for everyone) or alternatively, insurance companies could not be required to cover people with existing medical problems (because without a mandate, there wouldn’t be enough healthy people in the pool). They like it best – 61 percent approval in a Kaiser Family Foundation poll — when they’re told it won’t apply to most people because they have insurance through work.
That spike to 61 percent, nearly twice as high as the 33 percent who support the mandate when asked a simple up-or-down question, is telling. It suggests many Americans aren’t comrades-in-arms with conservatives waging an ideological battle – they’re just people nervous about change and relieved to hear it won’t affect them.
Attitudes toward the overall health law are just as complicated as those toward the mandate. A new CNN/ORC International poll, like most polls, finds that the law is unpopular – favored by 43 percent, opposed by 50 percent. Breaking down the numbers further, CNN found 43 percent favor it, 37 percent oppose the law because it’s too liberal, and 10 percent oppose it because it’s not liberal enough. Hello public option!
You have to wonder if that 10 percent – which has gone as high as 14 percent in earlier CNN polls – keeps doggedly voicing opposition to the law in hopes the Supreme Court will strike it down and force Congress to regroup. At some point, as 50 million uninsured rises to 60 million and 70 million and higher, as more states approach the astonishing Texas rate of 26 percent uninsured, Congress may decide it has to do something. And, barred from effectively regulating the private market, there will be no options except the public option – Medicare for all.
That should be a safe course. After all, the policy already exists. But in the current climate it’s not hard to envision a conservative challenge to Medicare, and who knows what the Supreme Court might do?
By: Jill Lawrence, The National Journal, March 27, 2012
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