“Who Are The Judicial Activists Now?”: People Like Ted Cruz Will Never Stop Screaming Judicial Activism
As is regularly the case in American politics, you have to hand it to Ted Cruz: His reaction to the Supreme Court’s order on same-sex marriage was the best one I came across Monday for sheer outrage-iness. “Judicial activism at its worst!” he thundered (okay, the exclamation point is mine). This, remember, in response to an inaction. The Court did exactly nothing. And now that’s judicial activism.
In fact, the Court took a pass, one presumes, because there weren’t two circuit-court decisions before it that presented conflicting legal interpretations of statute. In the absence of such a conflict, the Court did exactly what most experts I’ve read and spoken to over the last few months predicted it would do. But to Cruz, it’s “astonishing.” Ditto that the Court acted (or in-acted) “without providing any explanation whatsoever.” Which it never does in such instances, but never mind.
People like Cruz will never stop screaming judicial activism. No, wait: They will stop screaming judicial activism, at least on the question of same-sex marriage; and they will stop doing so sooner rater than later. This will constitute a major victory for the forces of light, one very much worth marking and thinking back over.
Ever since, well, Brown v. Board of Education, and probably before, conservatives have complained about judges making law against the will of the majority of voters. The critique extends into nearly every little crevice and lacuna of our civic life. Roe v. Wade was legislating from the bench; affirmative action; of course taking God out of the classroom; but basically anything any court did that conservatives didn’t approve of.
And let’s admit it—on at least the abstract level, the complaint has often had merit. I mean, there can be little doubt that public opinion in Dixie in 1954 opposed the integration of the schools. So the Court of 1954 was indeed making law from the bench. And thank God for it, since the problem is that public opinion was wrong. Not just wrong like “I think I’m not putting enough salt in my grits” wrong, but immorally wrong. What’s a court to do in such a case? Many forests have been sacrificed so that various scholars could take up this question, but the answer is really quite short and simple: The right thing.
And so liberalism has lived now with decades of such criticisms from conservatives, with the understanding that it’s far better to have won the right in question from a court than not to have won it at all—and the understanding that out there in America, yes, the backlash against these judges and the policies that grew from their decisions was probably brewing.
But same-sex marriage is different for two reasons. First, the amazing and oft-commented upon speed at which public opinion has flipped. And second, the fact that if the legal consensus can be said to be coming down on one side or the other, it’s clearly coming down on the side of same-sexers having the same constitutional matrimonial rights that the rest of us have. When federal judges in Oklahoma and Utah say it, it ain’t judicial activism, folks. It’s, you know, the more-or-less-impossible-to-deny law.
So the process by which same-sex marriage has advanced in this country hasn’t been overwhelmingly judicial at all. Until the Court’s announcement Monday, in fact, the tally was that gay marriage became legal by court decision in 13 states, and by the will of the people in 11 (legislative action in eight, popular referendum in three). And in most of the states where the change happened through the courts, the issue is decreasing in controversy, and public opinion is coming along.
You may remember that Iowa was the first unexpected heartland state where the state Supreme Court made gay marriage legal, back in 2009. It’s true that three judges who so ruled were removed from the bench in judicial retention elections in 2010. But by 2012, when the “values” crowd went after a fourth, they walked away scalpless: Judge David Wiggins retained his seat by a landslide 10-point margin. The temperature had cooled. Today, polling shows that public opinion in the state is still divided on same-sex marriage but is firmly against any kind of state constitutional amendment that would ban the practice.
So now, after what the Court did Monday, same-sex marriage is going to extend into 11 new states. It seems fair to say that majorities are against gay marriage in most of these states (the aforementioned Utah and Oklahoma, plus Kansas, Indiana, West Virginia, and the Carolinas). We’re going to see the usual skirmishes and hear the predictable sound bites. In political terms, if you’re a liberal who wants to read the tea leaves, keep an eye trained on the North Carolina Senate race.
Incumbent Democrat Kay Hagan is steadily but narrowly leading GOP challenger Thom Tillis. Hagan backs same-sex marriage. But the state voted overwhelmingly against it two years ago in a referendum. And now, as a part of the Fourth Judicial Circuit, North Carolina is about to have the sinful practice foisted on it. Public opinion in the state still runs strongly against same-sex marriage. I think we can reasonably expect Tillis to double down on the issue, and it would be horrible to see Hagan lose because of it.
It’ll take time in these states, but the same thing will happen in them as is happening in Iowa. People will adjust. Gay couples will marry. Straight couples will see that their own marriages were somehow not sullied after all.
This is the core dilemma for conservatives on same-sex marriage: The more widespread its practice, the more accepted it becomes. This is the exact opposite of abortion and affirmative action, two red-hot issues on which the right has used the “judicial activism” charge to great effect in recent history. If you think abortion is murder, then the more widespread its practice, the more aghast you are. If you oppose racial preferences, then ditto. But that isn’t how same-sex marriage works. It takes nothing away from heterosexual couples, or for that matter anyone.
Eventually, the Supreme Court will rule 5-4 (with Kennedy) or maybe even 6-3 (with Roberts—not completely impossible) in favor of gay marriage, because the law is clear, and because the Court isn’t going to tell many thousands of married couples in 30 states that they’re suddenly not married. Judicial activism? No. Just the right thing. The judicial activists will be those, led by their godhead Scalia, who will try to invent new ways to march backwards while pretending that they themselves aren’t trying to dictate morality from the bench. And the charge of judicial activism, which hurt liberalism because it resonated with a resentment that millions of average Americans felt, will lose its sting soon enough.
By: Michael Tomasky, The Daily Beast, October 7, 2014
“The New Campaign Theme: Fear”: Republican Candidates Are Rediscovering How To Use Fear In Campaigning
There’s a new narrative emerging about the midterm elections. After months in which political reporters essentially wrote the same stories over and over with only small variations — it’ll be a good year for Republicans; the Affordable Care Act is a disaster for Democrats; oh, wait, maybe not — we now have a brand-spanking new storyline to play with.
Now, the elections are all about security and terrorism and foreign policy.
Fear is back! Which, of course, is great for the GOP.
There is some evidence that the elections may be shifting on to these topics. But like the threat from the Islamic State, it may be being overhyped by a news media eager for excitement.
One of my theories about the ebb and flow of political coverage is that any new development that promises change is unusually attractive to political reporters. Polls that never change are boring. And if America is about to embark on a new military adventure, then change must surely be in the air.
So we’re seeing a whole raft of articles claiming that the election is now all about security, like this one and this one and this one.
Yes, the news has been dominated by the Islamic State question for the past couple of weeks, and people respond to what’s in the news when they’re asked what they care about (this is called agenda-setting). There is some public opinion data showing more people expressing concern about terrorism.
But the question is: Is there any clear evidence that the public is actually gripped by terror, that the elections are going to look any different next month than they did last month?
If the public were actually terrified, that would almost certainly be good for the GOP. Research has shown that if you make people afraid or remind them of their own mortality, a significant number will gravitate toward Republican candidates. A lot of news stories about shadowy foreign terrorist groups could be enough to do the trick.
A complicating factor, however, is that Congress is pretty much abdicating its responsibility for oversight over the escalation. What’s more, Republican candidates don’t have much to say about what’s going on in the Middle East, as GOP strategists admit:
For candidates, there’s a difficult balance to strike between using the issue to beat the drum against Obama and getting too far in the weeds on actual strategy proposals. Most GOP strategists agree that the way to talk about foreign policy this fall is to make it a broad argument about leadership and stay out of such details as whether or not the U.S. should put troops on the ground.
“I don’t think that many Republicans are going to rush out there with detailed foreign policy initiatives in their own campaigns,” said GOP pollster Wes Anderson. “I don’t think there’s any market for it — what voters want to hear is that somebody is going to take initiative and show leadership.”
Having no actual ideas hasn’t historically stopped Republicans from exploiting an issue, of course. And there are some signs that Republican candidates are rediscovering how to use fear in campaigning (see here or here), which is its own story worthy of examination.
But House Republicans are actually showing surprising unity with Obama on how to respond to ISIS. The disagreements among Republicans over how to proceed seem procedural more than anything else, and they are likely to give him what he wants in terms of training the Syrian rebels, which could undercut efforts by GOP candidates to use this against Democrats. On balance, it’s probably too early to say that the election has been transformed.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, September 12, 2014
“The New Politics Of Foreign Policy”: Steadier, More Sober, More Realistic—The Balance We Have Been Seeking
Over the last decade, Americans’ views on foreign policy have swung sharply from support for intervention to a profound mistrust of any military engagement overseas. Over the same period, political debates on foreign affairs have been bitter and polarized, defined by the question of whether the invasion of Iraq was a proper use of the nation’s power or a catastrophic mistake.
This contest for public opinion has taken place in the shadow of the attacks of Sept. 11, 2001. For understandable reasons, the United States was thrown off balance by the horrific events of 13 years ago, and we have never fully recovered.
The emergence of the Islamic State and its barbaric beheadings of James Foley and Steven Sotloff have shaken public opinion again. It is, of course, possible that the public’s guardedly increased hawkishness is another short-term reaction to an enraging news event. But there is a strong case that, after all the gyrations in policy and popular attitudes, we are on the verge of a new politics of foreign policy based on a steadier, more sober and more realistic view of our country’s role in the world and of what it takes to keep the nation safe.
And it fell to President Obama on Wednesday night to take the first steps toward building a durable consensus that can outlast his presidency. The paradox is that, while polls show Americans more critical than ever of the president’s handling of foreign affairs, the strategy he outlined toward the Islamic State has the potential of forging a unity of purpose across a wide swath of American opinion. In many ways, it is an approach that goes back to the pre-9/11 presidencies of George H.W. Bush and Bill Clinton.
Two things are clear about where the public stands now: It is more ready to use U.S. power than it was even a few months ago. But it remains deeply wary of again committing U.S. combat troops to the Middle East. Thus the wide popularity of using air attacks to push back the Islamic State.
Obama’s strategy seeks to thread this needle. As the president explained Wednesday night, the bombing campaign the United States has undertaken is aimed at supporting those — including the Iraqi army, the Kurdish pesh merga and, perhaps eventually, Syrian opposition forces — who are bearing the burden of the fighting. Although the circumstances are quite different, Obama’s reliance on air power is reminiscent of Clinton’s actions in Bosnia and Kosovo. Obama said he was sending an additional 475 U.S. troops to Iraq “to support Iraqi and Kurdish forces with training, intelligence and equipment.” But he was again at pains to insist that they would “not get dragged into another ground war in Iraq.”
More generally, Obama is pushing a tough-minded multilateralism. His stress on building “a broad coalition of partners” and the administration’s aggressive courting of allies in both the Middle East and Europe recalls the intense rounds of diplomacy that former secretary of state James A. Baker III led on behalf of the first President Bush before the successful war to drive Saddam Hussein’s army from Kuwait in 1991.
Obama’s diplomatic exertions have extended to pressuring Shiite politicians in Iraq to create what he called “an inclusive government” that Sunni Muslims could regard as their own. It was the creation of such a government, he said Wednesday, that now made the rest of his strategy possible. Above all, Obama went out of his way to describe his new effort as a “counterterrorism strategy,” tying it back to the cause that large majorities of Americans embraced after the 9/11 attacks and have never stopped supporting. His new effort, he insisted, “will be different from the wars in Iraq and Afghanistan.”
Some who championed the Iraq war will, no doubt, object to this implicit criticism of a venture they still defend. Others will point to the risks of relying on Iraqis and others to take the lead on the battlefield. In the meantime, anti-interventionists — who still loom large in the president’s party and in Republican libertarian quarters — will continue to be wary of any re-escalation of U.S. military engagement. And a bitter election season is hardly an ideal moment for building bipartisanship.
Nonetheless, circumstances have presented Obama with both an opportunity and an obligation to steer U.S. policy toward a middle course that acknowledges a need for American leadership and the careful use of American power while avoiding commitments that are beyond the country’s capacity to sustain. It is the balance we have been seeking since an awful day in September shook us to our core.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, September 10, 2014
“Why So Many Are Clueless”: Shameful Coverage Of Obamacare’s Real Impacts
If you read my column last week about a Senate hearing that showed how Obamacare has affected Americans, you might have wondered if I was in the same room with reporters who presumably covered the event.
The disparity goes a long way toward explaining why so many of us are clueless about the actual impact the law is having on our lives.
The title of the May 21 Senate Commerce Committee hearing: “Delivering Better Health Care Value to Consumers: The First Three Years of the Medical Loss Ratio.” I was one of four witnesses talking about the part of the law that requires health insurers to issue rebates to policyholders if they spend more than 20 percent of premiums on non-medical expenses, including profits — the so-called Medical Loss Ratio.
Prior to the passage of the law, insurance company executives — who consider what they spend on medical care to be a loss — were in many cases devoting up to half of premiums they collected to pay for advertising and other administrative functions and to reward executives and shareholders.
As I wrote last week, consumers have saved at least $3 billion since the provision of the law that mandates insurers must spend at least 80 percent of our premiums on medical care went into effect in 2011.
The hearing wasn’t just about numbers, however. Katherine Fernandez, a small business owner from Houston, testified about how the MLR provision and other aspects of the law have enabled her family to pay less for far more comprehensive coverage than was possible in the past.
She told the committee that because both her husband and son had pre-existing conditions, the only policies available to them pre-Obamacare would not cover any medical care pertaining to those maladies. And even then the policies had both high premiums and high deductibles. She said that during the 14 years prior to the law’s passage, her family paid more than $100,000 in premiums for what she described as bare-bones coverage. And the premiums went up sharply every year — 165 percent between 2000 and 2003 alone.
She said she was elated when the Affordable Care Act passed. “No more pre-existing condition clauses … and insurance companies had to refund some of what we paid if they didn’t spend enough. What reasonable ideas.”
If you read the accounts of the hearing in The Washington Post, USA Today, Politico or CBS News — the only news outlets I could find that provided any coverage — you would not have read anything about the $3 billion consumers have saved as a result of the MLR provision or how the law has benefited the Fernandez family.
The focus of all those stories was a brief exchange toward the end of the hearing between Committee Chair Jay Rockefeller, a West Virginia Democrat, and GOP Sen. Ron Johnson of Wisconsin about whether the color of President Obama’s skin might explain why some people are opposed to the law.
Rockefeller suggested race might be a factor, which provoked a spirited denial from Johnson. Politico’s only hint about the hearing’s actual subject was this: “His (Rockefeller’s) critiques of the GOP again came in a sparsely attended committee hearing, this time during an analysis of health-care spending.”
The only one of these pieces that even mentioned “medical loss ratio” was the CBS story, and it, too, was primarily about the exchange between Rockefeller and Johnson. In the USA Today article, which apparently was based on a National Journal transcript, the only hint of a hearing was in the very last sentence: “Rockefeller then veered into another topic before adjourning the hearing.”
That other topic, of course, was the medical loss ratio.
The Washington Post likewise found medical loss ratio of no interest. Its story, too, was about the back-and-forth between Rockefeller and Johnson during what the reporter dismissed as “an otherwise sleepy committee hearing.”
Granted, it is challenging to substantively cover the Affordable Care Act. The U.S. health care system is dizzyingly complex, and so is the law. It’s far easier to write about constant political sparring than to take the time to educate readers about what’s actually in the law and how it affects people. It’s not a heavy lift to review a transcript and write the kind of “he said, she said” — in this case the “he said, he said” — coverage that passes for journalism.
There are a lot of reasons why Americans don’t know how the law affects them or why they believe things about Obamcare that aren’t true. The Democrats have done a lousy job of explaining it. And more than $400 million has been spent by opponents attacking it — 15 times as much as has been spent by supporters. But one of the biggest reasons is the failure of many in the media to provide anything other than the most superficial coverage. As a former reporter who used to cover hearings on the Hill, I consider that shameful.
By: Wendell Potter, The Center For Public Integrity, June 2, 2014
“NRA’s Constitutional Fraud”: The Truth Behind The “Right To Bear Arms”
In the wake of the horrific Isla Vista, California, mass killing, Americans have once again engaged the debate over gun proliferation. Victims’ families issue primal cries for regulation of these deadly weapons and gun activists respond by waving the Constitution and declaring their “fundamental right” to bear arms is sacrosanct. Indeed, such right-wing luminaries as Joe the plumber, who not long ago shared the stage with the Republican nominees for president and vice president, said explicitly:
“Your dead kids don’t trump my constitutional rights.”
Iowa Republican Senate candidate Jodi Ernst, known for her violent campaign ads in which she is seen shooting guns and promising to “unload” on Obamacare, had this to say when asked about Isla Vista:
“This unfortunate accident happened after the ad, but it does highlight that I want to get rid of, repeal, and replace [opponent] Bruce Braley’s Obamacare. And it also shows that I am a strong supporter of the Second Amendment. That is a fundamental right.”
This argument is set forth by gun proliferation advocates as if it has been understood this way from the beginning of the republic. Indeed, “fundamental right to bear arms” is often spat at gun regulation advocates as if they have heard it from the mouths of John Adams and Thomas Jefferson themselves. But what none of them seem to acknowledge (or, more likely, know) is that this particular legal interpretation of the Second Amendment was validated by the Supreme Court all the way back in … 2008. That’s right. It was only six years ago that the Supreme Court ruled (in a 5-4 decision with the conservatives in the majority, naturally) that there was a “right to bear arms” as these people insist has been true for over two centuries. And even then it isn’t nearly as expansive as these folks like to pretend.
For instance, that gun-grabbing hippie Justice Antonin Scalia went out of his way in that decision to say that beyond the holding of handguns in the home for self-defense, regulations of firearms remained the purview of the state and so too was conduct. He wrote that regulating the use of concealed weapons or barring the use of weapons in certain places or restricting commercial use are permitted. That’s Antonin Scalia, well known to be at the far-right end of the legal spectrum on this issue. Most judges had always had a much more limited interpretation of the amendment.
Justice John Paul Stephens discussed his long experience with Second Amendment jurisprudence in his book “Six Amendments: How and Why We Should Change the Constitution,” and notes that when he came on the Supreme Court there was literally no debate among the justices, conservative or liberal, over the idea that the Second Amendment constituted a “fundamental right” to bear arms. Precedents going all the way back to the beginning of the republic had held that the state had an interest in regulating weapons and never once in all its years had declared a “fundamental right” in this regard.
So, what happened? Well, the NRA happened. Or more specifically, a change in leadership in the NRA happened. After all, the NRA had long been a benign sportsman’s organization devoted to hunting and gun safety. It wasn’t until 1977, that a group of radicals led by activists from the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms took control and changed the direction of the group to one dedicated to making the Second Amendment into a “fundamental right.”
What had been a fringe ideology was then systematically mainstreamed by the NRA, a program that prompted the retired arch conservative Chief Justice Warren Burger to say that the Second Amendment:
“Has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime”
The results are clear to see. Mass shootings are just the tip of the iceberg. Today we have people brandishing guns in public, daring people to try to stop them in the wake of new laws legalizing open carry law even in churches, bars and schools. People “bearing arms” show up at political events, silently intimidating their opponents, making it a physical risk to express one’s opinion in public. They are shooting people with impunity under loose “stand your ground” and “castle doctrine” legal theories, which essentially allow gun owners to kill people solely on the ground that they “felt threatened.” Gun accidents are epidemic. And this, the gun proliferation activists insist, is “liberty.”
Michael Waldman of the Brennan Center for Justice (at NYU School of Law) has thoroughly documented all this history in his book, “The Second Amendment: A Biography,” a bit of which was excerpted in Politico magazine. He recommends that progressives who care about this issue think long and hard about how the right was able to turn this around, making a specific case for taking constitutional arguments seriously and using their “totemic” stature to advance the cause. He suggests that they adopt a similarly systematic approach, keeping this foremost in mind:
Molding public opinion is the most important factor. Abraham Lincoln, debating slavery, said in 1858, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” The triumph of gun rights reminds us today: If you want to win in the court of law, first win in the court of public opinion.
In his book, Justice John Paul Stevens suggest a modest tweak to the Second Amendment to finally make clear what the founders obviously intended:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
This is important. As Waldman notes, where the NRA Headquarters once featured words about safety on the facade of its building, it is now festooned with the words of the Second amendment. Well, some of them anyway:
Visitors might not notice that the text is incomplete. It reads: “.. the right of the people to keep and bear arms, shall not be infringed.”
The first half—the part about the well regulated militia—has been edited out.
If they truly believed the 2nd Amendment was absolute and totally clear, you’d think they’d show all the language, wouldn’t you? One can only conclude that they are trying to hide something: its real meaning.
By: Heather Digby Parton, Contributing Writer, Salon, June 2, 2014
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