Finally, The Real Scalia

It was proper to pay respects to Antonin Scalia. That’s what civilized people do. What has been improper has been the way his views have been represented, actually misrepresented, in the press and, particularly, on television.

Finally, someone has come along and explained, without the sugar and honey, the real record and, more important, the real intent of the late justice. In a short essay (“Looking Back“) focusing on the historical context of Scalia’s hurtful tenure, Jeffrey Toobin, CNN’s senior legal analyst, began:

Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.

You should read the entire piece, especially noting that Scalia, for all the credit he got for a mammoth intellect, confessed that he “received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio.” Mix that stunning admission in with a reactionary religious upbringing and a silly and self-serving theory of constitutional interpretation, and you have a professional jurist who should always have been fairly viewed as a fairly dangerous man.

But Toobin makes the salient point relevant to this year’s election:

The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives. With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.

Blindsided or not, Democrats, if they can come together this summer, if they can merge the youthful enthusiasm behind Bernie Sanders with the experience and electability of a seasoned Hillary Clinton, can realize Toobin’s two-generation dream of ridding the country of a conservative majority that has done much damage to the country, but damage that can still be undone if our side wins in November.

The Center Of “The Nation’s Life” Holds, At Least Today

Yep, the Supreme Court found that federally discriminating against same-sex couples who are lawfully married is unconstitutional. A great day for equality under the law, even if there is much unfinished business—38 states representing two-thirds of the population of the country still prohibit same-sex matrimony—before genuine law-based equality becomes a reality for all.supreme court white

I do, though, want to remind everyone just how “damaging” was Tuesday’s decision on the Voting Rights Act, which was a victory for reactionary forces still hard at work across the land. And I want to remind everyone that whether it is Tea Party-dominated Texas—which will, despite the heroic efforts of a Democratic state senator, eventually severely limit reproductive rights in that state—or other laboratories of intolerance in other cuckoo-conservative jurisdictions, the right-wingers are unrelenting in their pursuit of a reactionary agenda. They won’t quit trying to apply their Iron Age evangelical theology to contemporary governance.

Finally, I want to remind everyone that even though today’s DOMA decision is a winner, those Four Conservatives of the Judicial Apocalypse—Scalia, Thomas, Alito, and Roberts—still wield considerable power on behalf of the reactionaries among us.

Justice Scalia’s dissent in the DOMA case, in which he unbelievably and hypocritically denounced his colleagues in the majority as embracing “black-robed supremacy”—as if he had not embraced such supremacy in the Voting Rights case the day before (not to mention in Bush v. Gore, which “settled” the 2000 presidential election)—is dripping with disdain for what the majority did to DOMA, that is, strike down the Clinton-era law without what the black-robed Scalia claimed was a legitimate reason to do so. He said the majority had expressed,

a desire to place this Court at the center of the Nation’s life.

For better or worse—and there are examples in history representing each extreme—the Supreme Court is sometimes at the center of the Nation’s life. And that center can be a fresh stream of equality and justice and liberty under the law, as Brown v. Board of Education in 1954 or Roe v. Wade in 1973 or today’s DOMA decision demonstrates.

Or at the center of the Nation’s constitutional life can exist a stagnant pool of narrow-minded conservatism, as Dred Scott  v. Sandford in 1857 or Plessy v. Ferguson in 1896 or the Voting Rights Act demolition yesterday represents.

supreme court blackAnd as long as there are four reliable defenders of retrogressive philosophy, of constitutional stagnation, sitting on the Supreme Court—with a sometimes reliable reactionary like Justice Kennedy making a majority—it will be hazardous to have the Court in a position to make monumental declarations about what the law, including constitutional law, finally means.

For that hazard we can thank the folly of the Founders, or their genius, depending on one’s view.

But ultimately it is the people who vote conservatives into high office, and, more important, the people who sit at home and don’t vote at all, who are responsible for the anti-progress we have seen, will see.

Even if today we can, but only for a moment, celebrate.

Make America Safer: Get Rid Of Bob Costas

Bob Costas, renowned sports broadcaster, is under fire from outraged conservatives for daring to speak out on NBC’s Sunday Night Football, mostly using the words of Kansas City sports writer Jason Whitlock, about the easy availability of guns in our culture, following the murder and suicide involving a Kansas City Chiefs football player.

And, you know, conservatives must be right. Who really cares that another black kid will grow up without parents? Who really cares that an athlete, for whatever reason, chose to solve his problems with NRA-sponsored warfare?

Antonin Scalia has spoken for the Supreme Court; no, he has apparently spoken for America, and told all who will listen that a laissez-faire reading of the Second Amendment trumps common sense, at least 21st-century common sense.

Conservatives must be right because the NFL and the Kansas City Chiefs chose to play a football game the day after an elite athlete killed his girlfriend and himself, the latter act done in full view of his coach and the general manager of the Chiefs, who were about a first down away from the killer.

Yes, Bob Costas was wrong to speak up. He was wrong to make people think that the game, a simple NFL football game, was less important than a family tragedy, and a larger all-American family tragedy.

Just who does he think he is reminding us how primitive we are? Especially before a football game. Doesn’t he know that Americans watch football to escape reality?  And there he was, in front of the camera telling us,

Handguns do not enhance our safety. They exacerbate our flaws, tempt us to escalate arguments, and bait us into embracing confrontation rather than avoiding it.

Yet, we know that handguns do enhance our safety. We know that because conservatives, with the NRA’s moral and financial blessing, tell us that. Republican politicians, married to and constantly getting banged by the gun lobby, won’t dare tell us anything else, lest the NRA turn its guns on them and end their political careers.

Now, there is an effort to boycott NBC until Costas is gone. Good. That will do the trick. Get rid of him. We don’t need anyone reminding us, especially before a head-banging football game, how goddamned much we love violence.

The Light And Dark Of Conservatism

I chose to listen to the immediate reaction to the Supreme Court’s ruling today on Fox “News” Channel. And, of course, I wasn’t disappointed. The spin began immediately, particularly the idea that this is really a win for Romney, who will find his base newly “energized,” just like in the 2010 election.

Well, that may be right, but what struck me about the right’s reaction to the ruling is just how far conservatism, as a philosophy, has strayed from its parenting.

If political conservatism has any legitimacy at all, that legitimacy is found in conservatism’s traditional  respect for, and interest in maintaining, social stability. This implies a resistance to radicalism and opposition to those who would seek to disrupt an otherwise stable social order.

That traditional stance of conservatism is what originally attracted me to it, way back when I called myself one. And it is that centuries-old conservative posture that radicals and extremists like Justice Antonin Scalia and Clarence Thomas and Rush Limbaugh have undermined, if not completely eradicated. In short, what we see from the right these days would shock conservatism’s father, Edmund Burke.

I say all that to say that it turns out that the real conservative, among those on the Supreme Court who generally are called conservative, turns out to be John Roberts.

Justice Roberts joined the four “liberal” justices (more about that another day; judging by this decision, I see only two consistent “liberals” on this court, Ginsburg and Sotomayor) in the decision to uphold the constitutionality of the insurance mandate in the Affordable Care Act.

Granted, Roberts found the constitutionality of the mandate by essentially not interpreting it as a mandate at all, but as a tax levied on those who choose not to buy health insurance. And it is in that interpretation that Roberts actually exercised the restraint that conservatives are famous for advocating, but infamous for failing to honor when it goes against their political preferences.

Roberts wrote of the ACA:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

That, my friends, is the stance of a conservative jurist, one who is willing to honor his principles even if it means offending his own politics, or his own party. Cited in the majority opinion today was Hooper v. California, which included this language:

…every reasonable construction must be resorted to, in order to save a statute from unconstitutionality…

Again, that is how a conservative should look at his job of interpreting a law passed by the people’s representatives, the Congress. That is the opposite of a Scalia, who pretends to adhere to some lofty principle of originalist interpretation, but who really is a radical who refuses to find any construction of a statute that would save it from unconstitutionality—if he doesn’t like the statute in question. And we knew he didn’t like it from the oral arguments, during which he absolutely embarrassed himself as a jurist.

It would have been remarkable, and a small step towards getting extremists like Rush Limbaugh to sober up a little bit, if Scalia—one of Limbaugh’s intellectual heroes—had railed against the law all he wanted, but found, as Roberts did, a legitimate constitutional hook—and the taxing power of the federal government is legitimate and constitutional—to hang the ACA on.

But, no, the heavy lifting was left to John Roberts, who in his conservative reading of the Constitution rejected (wrongly, in my view) the government’s first rationale for the mandate (the Commerce Clause) and its second rationale for the mandate (the Necessary and Proper Clause), but found merit in its third rationale for the mandate, the taxing power of the government.

In other words, Roberts gave deference to the Constitution itself, which prioritizes the will of the people as expressed through the people’s Congress, instead of his own policy inclinations and judgments.

If that kind of conservatism were the kind dominating the Republican Party today, this country would be a much better place to live, and would have a much greater hope of maintaining a stable—and ultimately just—social order.

Alas, as Fox “News” and Mitt Romney and the right-wing punditry make clear, as they drone on about this dark day, conservatism itself is in a very dark place.

The State Of Scalia’s Mind Tells The Score

Even as Arizona Governor Jan Brewer attempted to paint a rosy picture of the Supreme Court’s decision to negate most of SB 1070—she clumsily argued that the Court upheld (possibly only temporarily) the “heart” of the law (the “papers please” provision)—pundits were debating just who came out ahead politically, the President or his adversaries.

Well, there are two good ways, in matters like this, to figure out who won. One way is to listen to the President:

I am pleased that the Supreme Court has struck down key provisions of Arizona’s immigration law.

And the other way is to listen to President Obama’s most prominent adversary on the Supreme Court, Justice Antonin Scalia. The conservative justice does not like judicial activism, except when he uses it himself, and in his dissent today he certainly took note of Mr. Obama’s executive activism via Homeland Security’s recently announced program to exempt some folks from immigration law enforcement:

The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the  Court does, that Arizona contradicts federal law [sic] by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.

Now, whenever Justice Scalia has his mind boggled, that is a win for the good guys, I don’t care what Jan Brewer says.  And when Scalia writes stuff in dissent like the following, the good guys have reason to celebrate:

…the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the  Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test…

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

The reason these words from Scalia are so sweet, and filled with irony, is because of another decision today by the Court, one that hasn’t received that much attention:

WASHINGTON — The Supreme Court on Monday turned away a plea to revisit its 2-year-old campaign finance decision in the Citizens United case and instead struck down a Montana law limiting corporate campaign spending.

In case you don’t remember, this case centered on whether the state of Montana could keep enforcing a 1912 law that placed political campaign spending limits on corporations. One would think that a purist-jurist like Scalia, who fretted so much over “state sovereignty” in the Arizona SB 1070 case, would give the benefit of the doubt to Montana.

Nope. And that is part of the reason why Scalia’s pissed-off prose over Arizona’s plight is so damned telling.

The “Thugfather”

The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans.”

—Charles Fried, President Reagan’s solicitor general commenting on the tone of the Supreme Court’s conservative justices during oral arguments on the constitutionality of the Affordable Care Act

uch ado was made over President Obama’s uncharacteristically maladroit remarkson the possibility that the Supreme Court might overturn his health care reform legislation:

And I just remind conservative commentators that for years what we have heard is that the biggest problem on the bench was judicial activism or a lack of judicial restraint; that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step…

Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

The Wall Street Journal was “astonished” at the remarks and wondered if the former constitutional law teacher ever taught Marbury v. Madison. Conservative Joe Scarborough found the remarks “unbelievable” and “disturbing.” He accused the president of “attacking” the Supreme Court and essentially undermining our judicial system’s independence.

The thundering Voice of the GOP, Rush Limbaugh, called the President a “thug“—yep, he did— saying:

…he says things in these sound bites…and they’re chilling to me. “The court has to understand…” “The court must understand,” is one of his sound bites. No, the court must not — does not have to — listen to you. What is this, “The court must understand”? That is a threat! How many of you think it possible that Obama will make a trip to the Supreme Court before the vote, before the final vote? Can you see it happening? I can.

I can too. I can see Mr. Obama serving up a can of presidential whoopass to Justice Scalia. Yes, anyone can see that.

Here is a classy graphic posted as part of Rush’s transcript from Tuesday:

As I said, I can see that Obama busting the kneecaps of Antonin Scalia. I sure can.

There was also an orgy of Obama hate Tuesday night on Hannity—featuring constitutional scholar Sarah Palin! The learned Alaskan said (it is damned hard to transcribe her eruditeness),

So, how much more evidence does an American voter need to understand that this president is not only, just merely, over, in over his head [sic], as a constitutional scholar—this is the community organizer in him coming out.

How much more evidence do all of us need to understand that we cannot afford this “flexibility” that he is seeking in his next four years that he’s asking for, for his ineptitude the next four years, we cannot afford to go down this road.

Sarah Palin referencing someone’s “ineptitude” represents a special kind of chutzpah, don’t ya think?  Call it arctic audacity, but whatever you call it, she is sitting on a pile of cash that such garish gall has wrought.

For all the outrage on the right about Mr. Obama’s remarks, one would think that there had been no history of right-wing attacks on the Supreme Court. Does Roe v. Wade ring a bell? Anyone remember the “Impeach Earl Warren” movement across the South?

The John Birch Society, now once again on friendly terms with movement conservatism, wrote in 1963:

It is obvious that the Warren-led Court intends, step-by-step, to declare the whole Constitution of the United States unconstitutional.

Is that an attack on the Court?

How about this, from William F. Buckley, the father of modern conservatism:

The Supreme Court of the United States discovers every year or so something in the Constitution not only that hasn’t been discovered before, but something which the formulators of that particular article or amendment to the Constitution specifically rejected. But it becomes law. This is called casuistry, and casuistry is one of the diseases of a decadent order in which people refuse to rely on basic cognitive skills, and have no faith in sequential argument.

Hmm. That was written in 1977. I suppose the Supreme Court has recovered from “one of the diseases of a decadent order,” since conservatives are now so eager to come to its defense.

In any case, the right-wing hysteria over Obama’s remarks is interesting, since a) they don’t worry too much about disrespecting the executive branch these days, and b) I never thought I would live long enough to hear right-wingers so enthusiastically defend the Court’s honor.

The truth is, though, that they don’t have much respect for either the executive branch or the judicial branch (or for that matter, the legislative branch) unless those institutions are peopled by conservatives.

Example: A totally unsubstantiated rumor has been floating from conservative brain to conservative brain: “Does Obama Know How the Supreme Court Voted?” The deal is that some liberal justice leaked the bad news to Big O and he was trying to intimidate the conservative justices into submission, sort of opening up a long-distance can of whoopass.

Hannity brought it up last night and Limbaugh mentioned it earlier in the day (he speculated that it might be Justice Kagan).

I ask: Is suggesting that a sitting justice (they are the only ones allowed in during the vote) of leaking the result of last Friday’s conference tally—purely for political reasons—showing proper respect for the Court?

In the case of conspiracy-minded Rush Limbaugh, any leaking of the outcome—positive or negative—would do:

It’s easier to understand that somebody leaked to him that the preliminary vote went against him and that the mandate fell by whatever the preliminary vote was and that explains his attitude yesterday. But I can see him saying what he said if the vote went in his favor as well, as a means of further intimidation, making sure they don’t change their minds or whatever.

It must be nice to live in a world where all the roads lead to your destination.

But my favorite example of the newly-found (at least since Bush v. Gore in 2000) and quite fraudulent conservative respect for the Supreme Court was from Joe Scarborough. After bashing Obama for not showing proper deference to the Court, he said this:

I think Justice Kennedy is a conservative justice with a small “c.” He’s worried about his legacy more than the law that’s in front of him—just to be really harsh about it. And I think he’s going to be afraid to do the bold thing, even if the bold thing is the right thing.

Now, that, my friends, is real respect for the integrity of the Supreme Court.


*The President better explained himself on Tuesday during the Q & A after his AP luncheon speech:

MR. SINGLETON:  Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.  But that is exactly what the Court has done during its entire existence.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT:  Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.  I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.

Don’t Worry, Be (Somewhat) Happy ACA Fans

With all the defeatist talk out there about how it is over for the individual mandate and likely over for the Affordable Care act, I want to offer a word of comfort: It’s not.

Famously now, Jeffrey Toobin, CNN’s legal analyst, said after oral arguments on Tuesday:

This was a train wreck for the Obama administration. This law looks like it’s going to be struck down.

After hearing that and after hearing similar remarks coming from several talking heads on the TV box, I waited until 1:00pm Central time and listened to the arguments myself. Better yet, I followed the transcript as I listened, stopping when necessary to analyze the arguments being made (much easier than yesterday) and the questions being asked.

What I found was that Solicitor General Donald Verrilli did get off to a horrible start. A really horrible start. He soon got help from Justice Ginsburg and Justice Sotomayor and Justice Kagan and by the end he had pretty much righted himself.

As expected, the conservative justices (except for Clarence Thomas who was likely texting Rush Limbaugh during the proceedings) executed an attack on the law, but nothing we hadn’t heard before and nothing that couldn’t be refuted.

Justice Scalia, who gets a lot of credit for being such an unassailable thinker, was not particularly good in his remarks* and it appears he will find a reason to vote against the law no matter how far he has gone in the past to justify an expansion of the government’s powers (when the government’s position happens to correspond with his own position on, say, the legality of medical marijuana) under the Commerce Clause. It appears to me that Scalia and the conservatives want to find a “limiting principle” on the government’s power under the Commerce Clause only when it is convenient.

Obviously, everyone was listening for clues from Justice Kennedy. Was he hostile to the government’s case? Hardly. He asked some tough questions, expressed some doubts, but in the end he also pressed former Solicitor General Paul Clement, who argued most of the case for the other side. At one point Kennedy said:

The government tells us … the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that … the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

This should be seen as a good sign because those conservative judges who have upheld the mandate have said that the healthcare market is not like buying broccoli or cell phones (to mention a couple of examples used by the conservative justices during oral arguments). Everyone will eventually participate, either accidentally or on purpose, and the cost-shifting involved (because most hospitals are mandated to provide treatment) is unique.

There is not only a good possibility that Justice Kennedy will find a way to uphold the individual mandate, there has been some speculation that Justice Roberts might follow him. I was particularly surprised that Roberts stepped in to restate the government’s argument, when he thought the other side had miscast it, but that is a rather thin string to hang a hope that Roberts might make it 6-3 to uphold the law.

Finally, Paul Clement did do a very good job of presenting his case, but he knows that oral arguments are not necessarily the decisive part of a complicated case like this:

I’m a big believer that oral argument makes a difference, but I’m also a big believer that comparably the briefs make even more of a difference.

We shall see. Prediction: 6-3 to keep the Affordable Care Act whole.


*Here is one silly offering from Scalia:

Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Or how about this one:

Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.

Necessary does not mean essential, just reasonably adapted“? Huh? Necessary means “of an inevitable nature.” And essential means “absolutely necessary.” You see how easy it is to bend words to fit your ends?

And although Scalia worries about violating the “sovereignty of the States” these days, he did not worry much about that in 2005, when he found it necessary to stomp all over California’s right to allow its citizens to grow marijuana for their own medicinal use:

As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” … This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” … As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.”

A Conservative Case For “Obamacare”

UPDATE: From The Washington Post:

The Supreme Court said Monday it will hear a challenge to the health-care overhaul act  passed in 2010, with a decision on President Obama’s most controversial domestic achievement likely to come  in the summer of his reelection campaign.

The court said it will decide whether the Affordable Care Act exceeded Congress’s power by requiring almost all Americans to have health insurance by 2014 or pay a penalty; whether the massive law can survive without the so-called individual mandate; and whether it is premature for the court to pass judgment on the act…

Although the court did not say when it will hold oral arguments in the case, they likely will come in March…The court granted extensive oral argument time–5 1/2 hours –to hear the complicated constitutional questions.



Every Republican worth his or her weight in teabags wants to kill the Affordable Care Act.

The instrument of its destruction, these folks hope, will be when the Supreme Court rules the individual mandate unconstitutional. That mandate, also known as the “minimum essential coverage provision,” requires individuals to purchase an insurance plan beginning in January of 2014. The provision seems to have a lot of folks’ skivvies in a slub, especially conservative folks’ skivvies.

An important decision—affirming the Act and its individual mandate—came down last week from the U.S. Court of Appeals for the D.C. Circuit, and you may have missed its significance, what with all the fuss over vaudevillian and presidential candidate Herman Cain.  

Delivering the opinion for the majority, Judge Laurence Silberman, who even  National Review concedes is a “highly regarded judicial conservative,”  has essentially made the case—and a conservative case at that—for “Obamacare’s” constitutional legitimacy. 

Judge Silberman, after summarizing the appellants’ objections to the individual mandate, wrote: 

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. 

The issue for those opposed to the mandate is that Congress doesn’t have the authority under the Commerce Clause to force anyone to engage in commerce who doesn’t want to. Congress, they argue, only has power to “regulate” actual commerce, as the clause itself seems to say: 

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. 

But what does “regulate” mean? In order to do the necessary work (for a conservative jurist who is also an originalist) of determining what late-18th century words meant in the late 18th century,  Judge Silberman went to an old favorite of mine, Samuel Johnson, to get the contemporary definitions of the relevant words in the Commerce Clause. 

From Johnson’s Dictionary of the English Language (1773 edition) the judge constructed this: 

At the time the Constitution was fashioned, to “regulate” meant, as it does now, “[t]o adjust by rule or method,” as well as “[t]o direct.”  To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.” In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce” limited to only existing commerce. There is therefore no textual support for appellants’ argument. 

Think about that: “To ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.” He later noted that, 

Congress… is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce. […] It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services. 

Did I mention that Judge Silberman is a conservative jurist? 

The Reagan-appointed judge went on to note that Supreme Court decisions over the years have “eroded” the distinction between interstate and local commerce and that “the only recognized limitations” today are: 

(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. 

Like any good conservative who respects the separation of powers, Judge Silberman insisted: 

We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional… Appellants have not made a clear showing to the contrary. 

The coup de grâce, as far as I’m concerned, came when Judge Silberman addressed the issue of the admitted “encroachment on individual liberty,” which included this: 

A single individual need not even be engaged in any economic activity–i.e. not participating in any local or interstate market–so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. Raich, 545 U.S. at 36 (Scalia, J., concurring). 

Notice that citation at the end of the passage? It helps make this section in Judge Silberman’s decision such a powerful blow to conservative hopes of killing the mandate in the Affordable Care Act.

The reference is to a 2005 case, important to those in the legalize marijuana movement, called Gonzales v. Raich, which upheld the federal government’s right to criminalize the production and use of home-grown marijuana for medicinal purposes, even if a particular state (as 16 states and D.C. now do) makes it legal to do so. 

Justice Antonin Scalia, who puts the con in conservative jurisprudence, wrote a concurring opinion in the Raich case, which Judge Silberman cited because parts of it appear to support his finding regarding the individual mandate in the ACA.  In Raich, Scalia cited favorably a case (United States v. Wrightwood Dairy Company) and used some of its language to support his anti-marijuana opinion: 

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 

Again: Congress “possesses every power needed to make that regulation effective.” Every power? Hmm. We shall see next year, when the Supreme Court finally settles the matter, whether Scalia still believes that Congress has such power. Consistency would seem to demand that he find as Judge Silberman did—and for similar reasons.  But we must remember that the conservative bloc on this current Supreme Court has a flair for activism, and I’m fairly certain that Justice Scalia can cleverly bend his own originalism to trump that of Silberman’s, should Scalia’s prejudices demand it.  

Finally, an important passage concluded Judge Silberman’s opinion: 

The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. 

If our health care system is not a national problem demanding a national solution, it is hard to see what would be.  And it is comforting to know that there is at least one conservative out there who understands that.

George Will Proves Himself Wrong About The Constitution

On Sunday’s This Week With Christian Amanpour, the Constitution, naturally on Independence Day weekend, was the topic.  The panelists were Michael Eric Dyson of Georgetown, Jill Lepore of Harvard, and Richard Stengel, editor-in-chief of Time magazine, and, of course, conservative commentator George Will, whose views on the nature of the Constitution I want to discuss.

Will’s position can be fairly summarized in two excerpts from his commentary on the show, beginning with this:

It’s one thing to say it’s open to interpretation, which it obviously is. It’s very open-textured language. On the other hand, I mean, when you say unreasonable searches and seizures, what’s reasonable? We argue about that. But to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.

Here is another selection from later in the program:

The framers were not narrowed and blinkered men. They were men of the enlightenment. They believed in progress, to which end they included in this document an amendment provision. They said there will be changes made.

The difference is, do you amend the Constitution by the casual weak interpretation of it, or do you candidly, when you want to change the structure of the government, change it by the amendment process they provided?

Now, these two sections seem to me to be a fair representation of the general conservative understanding of the nature of our Constitution and of constitutional interpretation.  They certainly represent the view I held as a conservative, and one reads or hears a variation of this idea from the lips of most conservative thinkers today.

The problem is that the conservative view is simply mistaken.  And George Will proved it during the subsequent discussion.

Will ask the following question, in the context of the health insurance mandate, of his fellow panelists, a question he no doubt thought would prove the superiority of his position:

Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce.  Does Congress have the constitutional power to require obese people to sign up for Weight Watchers?  If not, why not?

Two of the panelists eventually answered the question, sort of:

RICHARD STENGEL: If something is unconstitutional, people out there tend to think like some alarm will go off if something is unconstitutional. It’s unconstitutional if the Supreme Court decides it’s unconstitutional. And by the way, this can go to the Supreme Court, and we can see whether that happens.

GEORGE WILL: Well, does Congress have the power to mandate that obese people sign up for — do they have the power to do this?

RICHARD STENGEL: I don’t know the answer to that.

GEORGE WILL: You don’t know.

MICHAEL ERIC DYSON: Well, the beauty of that is, the not knowing…The basic foundation is set.

GEORGE WILL: Is that a yes, Congress does have the power to mandate?

MICHAEL ERIC DYSON: It’s open. If they decide that they will, they will have the power to do so.

The truth is—putting Stengel’s and Dyson’s thoughts together—that Congress does have the power, in Will’s formulation, to “require obese people to sign up for Weight Watchers,” if, and only if, the Supreme Court says it has the power.*

In the case of the health insurance mandate, if the Supreme Court ultimately rules that Congress has the power under the Commerce Clause to tell Americans they have to purchase health insurance, then they have to purchase health insurance or suffer the consequences.  Period.  There is no appeal from such a ruling, except via the formal amendment process. Likewise, if the Court says that Congress doesn’t have that kind of power, the Affordable Care Act’s mandate would be dead.

You see, this is the way it works, under a genuine, small “c” conservative understanding of the Constitution: The Congress acts, the Supreme Court decides if congressional action is constitutional, and we move on.  This dynamic is why liberals rightly call it a living, breathing document.

And despite the fact that conservatives like George Will believe our founding document is designed to “freeze” in time certain principles, the truth is that the Constitution gives—through Chief Justice John Marshall’s bold assertion in 1803 of an otherwise only implicit constitutional power—the Supreme Court the right to judge whether Congress’ actions shall stand or fall.

And, more controversially but unmistakably, it gives the justices—even conservative justices who pretend to believe in something called originalism—the de facto right to interpret the document in novel ways (see, for instance, the 2010 Citizens United decision in which corporations became people with free speech rights).

Finally, George Will really undermined his own claim about a frozen Constitution with this remark:

In the first decade of the 21st century, that 18th century amendment—Second Amendment—pertaining to bearing arms, was settled in this sense — the Supreme Court finally said, based on extraordinary scholarship on both sides, that it does protect an individual right, not the collective right of militias.

Think about that. It took 217 years to “finally” settle the meaning of the Second Amendment? Remember what Will said before:

…to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.

But what about transient majorities on the Supreme Court?  How can anyone argue, “a Constitution is supposed to freeze things,” when it has taken so long for us to understand what the Second Amendment means?  How about the First Amendment, the crucial meaning of which is still debated as it applies to twenty-first century life?

The point is that we know the Constitution is alive because new or nuanced interpretations of it keep breathing into its 18th century lungs the breath of life. And nothing confirms that truth more than the recent decisions by the conservative majority on the Supreme Court, notwithstanding the phony constitutional philosophy championed by those conservative justices and their defenders on television.


* This, of course, overlooks Congress’ power to define and therefore limit the apellate jurisdiction of the Court and preclude constitutional challenges to some of its actions. Article III, Section 2 of the Constitution says in relevant part:

…the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Many conservatives see this provision as a check on “judicial supremacy,” and advocate that Congress pass laws that contain restrictions on judicial review, thus legislating the courts out of the mix.  So much for “separation of powers.”

In fact, none other than Missouri’s Todd Akin, the extremist congressman from the 2nd district who wishes to replace Claire McCaskill as our senator, introduced a famous jurisdiction-restricting bill in 2004 involving protecting the Pledge of Allegiance. The bill, which ultimately didn’t become law, did pass the House.  It had an amazing 226 co-sponsors, as conservatives in both parties couldn’t help but jump on the side of God and the Pledge.

Here is how Akin’s official House site, bragging about House passage of his bill, describes it:

Congressman Todd Akin (R-MO) praised its passage of his bill to protect the words “under God” in the Pledge of Allegiance. “This is an essential step in stopping the overreach of activist judges and will free the vast majority of children and adults who wish to use the words ‘under God’ in the recitation of the Pledge of Allegiance from the threat of censorship,” said Akin…

Exercising Article III of the Constitution, the Act (H.R. 2028) protects the Pledge of Allegiance by removing from the jurisdiction of the federal courts the question of the Pledge’s constitutionality.

Here are some notable Republican co-sponsors of Akin’s bill, who not only put themselves on the side of “under God” in the Pledge, but also believe that Congress should from time to time limit the jurisdiction of the courts:

Roy Blunt, Sam Graves, Tom DeLay, John Boehner, Eric Cantor, Jim DeMint, Jeb Hensarling, Paul Ryan, Darrell Issa, Ron Paul, Tom Tancredo, Pat Toomey, Joe Wilson.

In my experience, it is usually religious conservatives who want to limit the Supreme Court’s jurisdiction on “vital issues” like the “under God” in the Pledge, and also over display of the Ten Commandments and the “defense of marriage.”

Does Antonin Scalia Have Alzheimer’s?

Whatever Glenn Beck has been smoking the past few years, he must have passed the pipe to Antonin Scalia.

Or maybe it’s just an early sign of Alzheimer’s.  In both cases.

Whatever it is, Scalia has managed to make himself look like a Tea Party nut, which really isn’t that hard for a Republican to do these days.

When asked whether “we’ve gone off in error” by applying the equal protection clause of the Fourteenth Amendment to both sex discrimination and sexual orientation, the judicial fundamentalist said:

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that…

I’m not going to bother quoting the rest of his statement, but I will bother to quote the relevant language in the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You may wonder how anyone can misunderstand the words “nor deny any person…the equal protection of the laws.” You may wonder, but not a man who fashions himself an “originalist,” which is just another way of saying he is the Jerry Falwell (Devil rest his soul) of constitutional interpretation.

You see, the Bible says God created the world in six days, science be damned. And the Constitution says women and gays (and by logical extension, Latinos, Jews and female Blacks) don’t have equal protection because those who wrote and ratified the Fourteenth Amendment didn’t particularly have women or gays or Latinos or Jews or female Blacks in mind when they did so.

So, under Scalia’s Falwellian judicial philosophy, if women, and others not originally and explicitly envisioned as deserving equal protection of the law, want that equal protection, they will have to get the legislature to guarantee it. “Persuade your fellow citizens it’s a good idea and pass a law,” Scalia says.

Never mind that conservative Chief Justice Warren Burger—and all of his colleagues—ruled in 1971 that women were protected under the Fourteenth Amendment. And never mind that here in 21st century America it is just plain silly to construe the Constitution in such a way that eliminates equal protection of the law for more than half of the population.

And never mind that Scalia’s originalist interpretation of the Fourteenth Amendment turned to goo when it was politically convenient. As Adam Cohen pointed out:

Justice Scalia doesn’t even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush’s right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

I think this is an appropriate time to remind everyone that Antonin Scalia was nominated to the Supreme Court by Ronald Reagan in 1986.  He was confirmed by the U.S. Senate in a remarkably close vote: 98 to 0.

Can anyone today imagine a judicial nominee who is as far to the left as Scalia is to the right getting a seat on the court with a 98-0 vote?  Heck, such a nominee wouldn’t even get all the Democratic votes.

In any case, Scalia was chosen by Reagan for two reasons: he was very young and he didn’t have too many of those tell-tale opinions floating around that would clue us in to his Falwellian fundamentalism.

It’s sort of like if the Falwellian Jerry Falwell wanted to infiltrate the Unitarian Universalist Church, he would have to do so before they discovered he was a uber-Baptist who believed that Unitarians were headed straight for hell.

But for all his talents (his opinions are fun to read), we can now regard Antonin Scalia as, in the best case but still sadly, Glenn Beck with a law degree.  Is Goldline a sponsor of today’s conservatie Supreme Court?

Or, in the worst case, we are observing the first ravages of dementia, as Alzheimer’s sinks its teeth into the brain of a man whose faulty fealty to literalism seemingly knows no bounds.

I say “seemingly” because maybe we are merely observing the behavior of a man who is nothing but a hack for the Republican Party. Here is Adam Cohen again on the Citizens United decision, in which Scalia and is conservative colleagues anthropomorphized corporations:

It is a strange view of the Constitution to say that when it says every “person” must have “equal protection,” it does not protect women, but that freedom of “speech” — something only humans were capable of in 1787 and today — guarantees corporations the right to spend unlimited amounts of money to influence elections.

A strange view, indeed.  But not if you are a Republican.

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