Senator Franken Demonstrates The Absurdity Of Gorsuch’s Judicial Philosophy And The Dishonesty Needed To Hide It

The Senate Judiciary Committee today voted to move the confirmation of Judge Neil Gorsuch to the full Senate. The New York Times also reported that “Democrats Now Have Votes To Filibuster Gorsuch Nomination.” It will be an interesting week.

When she announced her opposition to the confirmation of Neil Gorsuch, Senator Claire McCaskill wrote:

I cannot support Judge Gorsuch because a study of his opinions reveal a rigid ideology that always puts the little guy under the boot of corporations. He is evasive, but his body of work isn’t. Whether it is a freezing truck driver or an autistic child, he has shown a stunning lack of humanity.

“He has shown a stunning lack of humanity” is, well, a rather stunning statement about anyone nominated to the Supreme Court. But if you look at the two cases she cited, a reasonable person can conclude that humanity comes in a distant second to Gorsuch’s strange judicial philosophy and the record that accompanies it.

I want to focus on the freezing truck driver case, decided just last year in Gorsuch’s 10th U.S. Circuit Court of Appeals in Colorado. The case involved a company called TransAm Trucking and one of its drivers, Alphonse Maddin. The driver eventually won his case, and here’s how the judges who ruled in his favor summarized the bare facts involved:

In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.

Below I have posted Senator Al Franken’s discussion of this case today during the Judiciary Committee hearing, as he gave his reasons for opposing Gorsuch’s confirmation (which echoed McCaskill’s concern about Gorsuch siding with corporate interests over the interests of people). You will not find a more powerful argument against confirming Gorsuch. If you needed no other reason—and there are plenty—to oppose the nomination of an “originalist” or “textualist” Judge Gorsuch, the case of the freezing truck driver would be enough. Before you watch the short clip below, I want to share with you part of Gorsuch’s dissent in the case:

A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Senator Franken discussed that last bit of nonsense from Gorsuch, since, after all, the judges who sided with the truck driver were also applying the law. So something made them apply the law one way and something made him apply it another. What was it? Was it merely a fondness for corporations over people? Or was it a flaw in his judicial philosophy? I want to share with you something Joplin blogger Jim Wheeler wrote the other day, defining Gorsuch-Scalia judicial philosophy magnificently:

Originalism…amounts to attributing to the founders a kind of vision they could not possibly have had and it denies to the law the application of common sense…

As you will see in the video below, Senator Franken’s passionately makes the point that whatever it is that Gorsuch uses to interpret the law and decide cases, common sense has nothing to do with it. And because common sense has nothing to do with it, absurdity—and the need to be dishonest to hide the absurdity—is the result. Watch:

RBG Speaks Truth, Media Goes Nuts

Dammit! RBG has now apologized. She said,

My recent remarks in response to press inquiries were ill-advised and I regret making them.

As far as I’m concerned, she should have hung in there. When you are 83 years old, you are entitled to walk out on the national stage and tell the country the truth.

What exactly was the truth she told? Here’s what Ruth Bader Ginsburg actually said about Trump:

July 7: The AP interviewed her and asked her what would happen if Trump won the election in November:

I don’t want to think about that possibility, but if it should be, then everything is up for grabs.

Truth. Next:

July 8: The New York Times interviewed her. She said,

I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.

Truth. Next:

July 11: CNN interviewed her. She said of Trump,

He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.

Truth. Every single word. All of it. No one actually disputes it. No one is saying that what she said isn’t true. Her critics, though, are saying she should not have said it. Huh? I thought these were, as everyone says, extraordinary times. Well, then, what’s the problem? Why can’t a distinguished jurist tell the country the truth about Trump?

All of a sudden, after years and years of Scalia and Thomas and Alito waging ideological war on the country via their reactionary rulings, Republicans are worried about Supreme Court justices being “objective.” Yes. That’s right. Texas Senator John Cornyn said of Ruth Bader Ginsburg,

I think she should reconsider and change her course of conduct because I think she’s got into an area that is out of her control.. And that I think will reflect poorly not only on her but on the objectivity that we request and demand out of our federal judiciary.

Cue the laughter. What a knee-slapper.

Speaker Paul Ryan is also suddenly worried about objectivity on the Court. “This clearly calls into question her bias,” he told CNN’s Jake Tapper. More laughter. Ryan even brought up Bush v. Gore in the context of bias and objectivity. What a funny guy!

Hear me, my peeps. It’s a fiction that the Supreme Court isn’t a political institution. It most certainly is. Bush v. Gore itself proves it. Beyond that, though, it is a political institution because the presidents who pick its members and the senators who confirm or SPDTC ... because Justice is not blinddeny them are all politicians, politicians with political agendas who want judges to validate those agendas, not strike them down.

Why do you think Republicans are doing what they are doing now to President Obama? They are denying him his constitutional right—duty, really—to appoint another justice to the Court. Remember Judge Merrick Garland? Why isn’t he sitting on the Court right now? Politics. (For the record, Justice Ginsburg told the Times: “There’s nothing in the Constitution that says the president stops being president in his last year.” There might not be anything in the Constitution, but there is something in Mitch McConnell’s political head that says our African-American president has no rights a white man is bound to respect.)

And don’t forget an important fact about today’s Supreme Court. On almost any big issue before the Court, one can, with a high degree of accuracy, predict on what side most of the justices will come down. Especially Clarence Thomas, Samuel Alito, and, before God decided to kill him in his sleep, Antonin Scalia. Again, it is a fantasy that our highest court is somehow immune to bias and politics and ideology. The best we can hope for, and we need to keep hoping for it, is that through the fog of bias and politics and ideology some justice will shine through.

Speaking of Scalia, he was the perfect example of obvious ideological bias on the Court. He (along with Clarence Thomas) spoke at least once at a secret fundraising event sponsored by right-winger Charles Koch. As ThinkProgress also reported,

Scalia also came under ethical fire when he skipped Chief Justice Roberts’ swearing in ceremony to attend a junket to a Ritz-Carlton resort funded by the right-wing Federalist Society.

Objectivity anyone? This is so much fun I’ll go on:

  • In Arizona v. United States—Scalia was on the losing side—the famous conservative justice famously offered negative opinions of President Obama’s immigration policies.
  • In another case, Scalia essentially endorsed ideas that Senator Harry Reid said were “racist in application, if not intent.”
  • Speaking before law students at Georgetown, he criticized the Court’s protection of gay rights by suggesting homosexuals were in the same class as “pederasts” and “child abusers.”
  • Three weeks after the Court agreed to hear a case involving former Vice President Dick Cheney’s desire to keep secret the details of his energy policy strategy sessions, Scalia went duck hunting with Dick. Responding to a question about the propriety of that Dick duck hunt, Scalia said,

It’s acceptable practice to socialize with executive branch officials when there are not personal claims against them. That’s all I’m going to say for now. Quack, quack.

Side-splitting humor.

One more thing about Scalia, may he rest in peace. His bias was actually quantified by political science. A couple of years ago researchers did a study that focused on Supreme Court rulings, going back over 50 years, in cases involving freedom of expression. The study examined whether justices tended to favor free speech in those cases where the speaker’s ideology lined up with their own, either liberal or conservative. Guess what? Here’s how one of the researchers, Lee Epstein of Washington University in St. Louis, put it:

The most pronounced in the data set is Scalia … Just in terms of the pure percentages, if it were a liberal speaker he’d support the free exercise claim in about 21 percent of the cases. But if it were a conservative speaker, [he’d support free exercise claims] in 65 percent of the cases.

Whoops. I don’t remember too many editorials denouncing Scalia’s lopsided preference for conservative speech, do you?

Finally, I want to get to what really bothers me about all this. It is Trump’s reaction and the lack of proper reaction to Trump’s reaction. He first tweeted,

Justice Ginsburg has embarrassed all by making very dumb political statements about me. Her mind is shot-resign!

Wait a minute. Did he really say “her mind is shot”? Donald Trump—Donald Bleeping Trump—is actually sitting in judgment of someone’s mental ability? Yep. He later said, “there’s almost something wrong with her.” Think about that for a second or two. What kind of muddled mind talks that way? In any case, he was asked if he was questioning her mental capacity, to which he said,

Yes, I think I am. I think I am questioning her mental capacity.

Okay. You have a presidential candidate—one who recently launched a racist attack on a federal judge—openly questioning whether a sitting Supreme Court justice is in her right mind. Isn’t that unprecedented? Isn’t that a problem far greater than Ruth Bader Ginsburg telling the truth about Trump? I mean, she didn’t question his mental capacity. She questioned his sincerity and his consistency and his ego and the lack of transparency on his finances. All of those things are legitimate concerns about Trump. Yet, journalists and pundits, even liberal ones, are all torn up about what RBG has done, in terms of how the public might now perceive the impartiality of the Court. The reaction to what Trump said is to ignore it and continue to criticize her. What utter hooey. Doesn’t questioning the sanity of a Supreme Court justice do more to harm the institution than what RBG did?

Let me end this with some wise words from Paul Butler, a law professor and former federal prosecutor, who wrote an op-ed for The New York Times:

When despots have ascended to power in other regimes, one wonders how judges should have responded. Should they have adhered to a code of silence while their country went to hell? Not on the watch of the Notorious R.B.G. She understands that if Trump wins, the rule of law is at risk.

In speaking out, Ginsburg has refused to elevate the appearance of justice over justice itself. The Washington chattering classes may not appreciate the breach of protocol, but history — should the United States remain a democracy – will be a kinder judge.

That, my friends, is absolutely right. Despite her second thoughts now, RBG has done the country a favor by doing what too many journalists, especially those on cable television, refuse to do: she spoke truth to Trump.

______________________

[photo credit: Ginsburg: Allison Shelley/Getty Images; peeping justice: Southern Defender; Scalia: Allen West]

The Supreme Court Shows No Love To Anxious White People

“Equality of representation in the legislature is a first principle of liberty.”John Adams, 1776

a very important decision was handed down this morning by the U.S. Supreme Court. And I bet you didn’t even know it was coming. I know I didn’t and I follow this stuff fairly closely. And what this case, Evenwel v. Abbott, shows is that some white conservative activists in this country are not only suspicious of a democracy filled with brown people, they are openly hostile to it.

Before we get to the motives behind the plaintiffs in the case that was decided today, here is a quick summary from a story on MSNBC.com:

The U.S. Supreme Court unanimously rejected an effort to change political boundaries and reduce the voting strength of the nation’s Latino population on Monday.

Two residents of Texas urged the court to rule that in drawing legislative boundaries to create districts with roughly equal populations, states should count the voting population, not the total population.

Using the total population figures, the challengers said, dilutes the voting power of residents in districts with large numbers of people who are not eligible to vote, violating the one-person, one-vote requirement.

From an article in The Atlantic last year, we find that simply selecting the voting-age population as the criterion for creating voting districts “would produce districts that are older, whiter, richer, and more likely to vote Republican.” Get it? There are just too many pigmented people around who either don’t vote or can’t vote and if they live in a district with white people who do, then they are “diluting” the power of those white voters.

evenwel v abbottA group of white (let’s stop pretending race has nothing to do with this stuff) conservatives calling themselves (falsely) the Project on Fair Representation was behind this lawsuit, ostensibly brought by two Texas conservative voters, Sue Evenwel and Ed Pfenninger, who Raw Story described this way in December of last year:

Evenwel is a Tea Party activist who has thrown her support behind Rep. Michele Bachmann (R-MN), Sarah Palin and Sen. Ted Cruz (R-TX), and she helps promote “birther” conspiracy theories at local political meetings in Titus County.

Pfenninger is a security guard who has posted dozens of YouTube videos explaining his disdain for Jews, the Catholic Church and short-haired women, and he also believes that unicorns are real and the sun revolves around the earth.

Raw Story points out that these two upstanding white citizens were recruited by the Project on Fair Representation, who proudly claims the group was “designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts,” and says its mission “is to facilitate pro bono legal representation to political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity.” Clear enough? This is the same group that has been largely behind legal attacks on the Voting Rights Act and affirmative action.

You can read more details about the theories both in favor of this anti-democratic scheme and against it (even the state of Texas was against it, if you can believe that), but suffice it to say those in favor of this scheme—again, white conservative groups afraid of the browning of America— were sorely disappointed this morning. By a unanimous vote of 8-0, the Court left in place the very democratic idea of “one man, one vote,” which, oddly, only began to be articulated by the Court in the Earl Warren era, starting with the well-known Baker v. Carr in 1962, followed by the colossally huge case in 1964, Reynolds V. Sims, where the phrase—now a part of the lexicon of all those fighting for the right to vote around the world—was used to summarize the idea that state legislative districts should be drawn according to population rather than geographic districts.

Writing for the majority on the Court today, Justice Ruth Bader Ginsburg said something so simple, yet apparently something so controversial among anxious white people who feel their cultural privilege slipping slowly away from them:

As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.

Ya think? Should that even have to be articulated in 21st-century America? Ginsburg also reached back into time and rubbed a little salt into the wounds of conservatives by citing a Founder, Alexander Hamilton:

There can be no truer principle than this – that every individual of the community at large has an equal right to the protection of government.

“No truer principle.” That doesn’t leave much room for white cultural angst, does it?

On a local note, it is interesting that the Cato Institute, a libertarian group-think tank co-founded by Charles Koch, filed a brief urging the Court to take up the case of Evenwel v. Abbott. Sitting prominently on the board of directors of the Cato Institute is Joplin’s own Ethelmae C. Humphreys, part of a family that has showered conservative and libertarian causes with tons and tons of cash. Here’s how the great legal writer for Slate, Dahlia Lithwick, described Cato’s argument:

As a practical matter, if the plaintiffs win this appeal, power will shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones. In their brief asking the court to take the case, the Cato Institute was quite clear: If we apportion seats based on population, “a relatively small constituency of eligible Hispanic voters … have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters” and giving Hispanic voters “disproportionate power.”

Does anyone in their right mind think that Hispanic voters have “disproportionate power”? No. Only people in their white mind. That phrase in Cato’s brief, “diluting the votes of eligible voters,” can fairly be translated, “diluting the vote of eligible white voters.” 

Fortunately, Cato’s argument, and the argument of other brown-fearing white groups and their pawns, failed to convince even the rightiest of the right-wingers on the Supreme Court. And the vital concept of “one-man, one-vote” will live on.

At least for now. Joplin’s Humphreys family and the Koch brothers and those like them have plenty of cash available to keep on challenging what most of us, and all of those sitting on the Supreme Court, still see as fundamental to the success of our democratic experiment. The fight isn’t over I am sure. All of which makes this coming presidential election, with Antonin Scalia now resting in his everlasting home, more important than ever.

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.

“It Is Enough To Make You Swear”

Last night I was researching yet another piece on the disgraceful Republican effort to suppress the vote (I have written about it many times because it profoundly pisses me off, and in the mainstream press Republicans mostly get a pass) and, voilà, on comes Rachel Maddow with a segment on the same thing. Oh, well. I will go on with what I was doing and steal some of St. Rachel’s stuff, including noting the success Republicans have had in reducing voter participation. But first, here are a few headlines and information from the accompanying stories:

Republicans Are Trying to Make Sure Minorities and Young People Don’t Vote This November

In a way, Barack Obama can be blamed for this. In 2008, his historic campaign inspired record turnout, drawing more people to the polls than the country had seen in 40 years. Almost all of the record increase came from black, Hispanic, and young voters, who tended to vote Democratic. Republican governors and GOP-controlled state legislatures, not surprisingly, saw this as a problem. They responded by throwing up a host of new obstacles to voting that disproportionately affect black, Latino, and low-income voters.

Chart of the Day: Kansas Successfully Reduces Voting Rate of Blacks, Young People

Here is a graphic Rachel presented on her show that helps explain the motivation of muck-the-vote right-wingers behind those preceding stories:

2012 exit poll on young voters and blacks

You can see why Republicans went to a lot of trouble to make it harder for young folks and black folks to vote. And we must not forget that Hispanics gave President Obama 71% of their votes in 2012, after he received 67% of their votes in 2008. It was, of course, the 2008 election that first put the fear of Obama’s Allah into Republicans, who saw how powerful those young people, blacks, and Hispanics can be, when it comes to electing Democrats and shutting the door on reactionary politics.

In 2010, capitalizing on a backlash against The Scary Negro in the White’s House, Tea Party-energized Republicans took control of the entire legislature in 25 states, for a gain of 11. The last time they controlled that many statehouses was in 1952. Republicans decided to put to use their new-found state political power by throwing electoral spike strips in front of constituencies who would surely flee from the right-wing governance the GOP was about to unleash. And, as Saint Rachel pointed out, they have been successful. Here is a map she presented:

voting restriction states since 2010

Regarding that depressing reality, Maddow said this:

This is meant to be a Republican-tilted system of voting. If you care about small “d” democracy and the right to vote and everything that went into securing it, it is enough to make you swear.

Yep. I have done a lot of swearing since 2010. I can’t think of anything Republicans have engineered, and they have engineered a lot of bad things—including now politicizing Ebola, for God’s sake—that is worse than their attempts to make it difficult for people to vote. Obviously, they know their message doesn’t have majority appeal. But rather than tailor their message to attract a majority, they would rather retain their parochial vision and use raw and rare political power to discourage their political enemies from exercising what should be, in a still-experimental democracy, their sacred right to vote.

There is some good news in terms of the court battles over these dishonorable and anti-democratic tactics adopted by Republicans. On Thursday night, the U.S. Supreme Court—over the objection of its most committed reactionary members, Scalia, Thomas, and Alito—blocked Wisconsin’s voter ID law from going into effect for the upcoming election. The same night we learned that a federal judge in Texas—an Obama appointee; it matters who gets to appoint judges—struck down that state’s voter ID law, known as SB 14.

Noting that the right to vote “defines our nation as a democracy,” U.S. District Judge Nelva Gonzales Ramos didn’t shy away from describing what Republicans in the Texas legislature were doing when they passed their squash-the-Democratic-vote law:

The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that  SB 14 constitutes an unconstitutional poll tax.

One day, perhaps not too far in the future, we won’t have to battle the kind of reactionary nonsense that Judge Ramos struck down. But for now, the fight must continue because Republicans have no shame. They fear young people, blacks, and Hispanics. They see them as their enemies. And they will, apparently, try anything to keep their enemies from the battlefield.

Reactionary Judicial Activism, Unions, And The Walking Dead

In the recently decided Harris v. Quinn, Justice Alito and the conservative majority continued the Court’s assault (which began two years ago in Knox v. SEIU) on public employee unions, which just happens (!) to coincide with a larger assault on those unions by Republicans controlling state governments.

This is activism pure and simple. And it used to be that, in the judicial realm, conservatives were dead set against it (remember “judicial restraint”?). But that was then and this is the age of reactionary judicial activism, an activism increasingly blessed by conservatives-turned-radicals like George Will, who in January of this year was cheerleading for conservative judges to be “less deferential to legislatures” and who wrote:

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.

In Harris, the conservatives took Will’s advice and took it upon themselves to basically overrule the democratic process—legislators in the state of Illinois in this case—and have given, in the words of Harvard law professor Laurence Tribe“a constitutional underpinning to the anti-union ‘right to work’ stance.” Tribe says,

Harris is the latest chapter in the troubling story of the Roberts court indulging attenuated constitutional arguments against economic regulation.

Tribe concludes his piece on Monday’s anti-union decision this way:

Harris, despite its arguably narrow holding and apparent restraint, is thus part of a dangerous trend of veiling deregulatory economics in constitutional law. The Roberts court seems to be forgetting one of the principal lessons of constitutionalism since the New Deal: Economic policy should be made by legislatures, not courts. Harris is the Roberts court’s most recent retreat from that long-standing and wise consensus. It would do well to retreat no further.

Retreat no further? Come on. This is all about retreating. All the way back to the 19th century.

Back in 1977, the Court, not then openly hostile to the idea of unions, held in Abood v. Detroit Board of Education that private sector employees and public sector employees are essentially the same and that public employees represented by unions, even if they were not members, could be required to pay fees for the collective bargaining services they received, even if they objected to the political activities of the union. The Court essentially stopped in its tracks the idea that there could be freeloading public sector workers—those who took the benefits unions brought them but who didn’t want to pay for those benefits. Without such protection from freeloaders, unions—who are required by law to bargain for both members and non-members—could be in deep, deep trouble, especially if freeloading became the norm.

Monday’s decision in Harris V. Quinn, building on the anti-Abood stance Alito adopted in Knox v. SEIU, has guaranteed that public sector unions have something to worry about—if the composition of the Court is not changed before Alito can come up with enough votes to completely overrule the Abood decision, since right now it appears there is some teensy-weensy respect still left for stare decisis.  (Alito may soon have his chance in a case before the Ninth Circuit right now, Friedrichs v. CTA, in which a group of California teachers are seeking a reversal of Abood.)

Here is the way labor and civil rights attorney Moshe Marvit opened his piece for The New Republic:

The Supreme Court on Monday issued a wide-ranging opinion that will heavily impact the future of labor in America. The majority opinion in Harris v. Quinn held that home healthcare workers in Illinois and every other state that has a similar program are only “partial” or “quasi” public employeesas opposed to “full-fledged public employees” and thus don’t have to pay fees for labor representation. While the majority, led by Justice Samuel Alito, did not go so far as to fully gut the ability of public sector unions to finance their existence, the decision in the case was by no means a moderate one. Harris v. Quinn has set the stage for the eventual overruling of Abood; it has confused and perverted the concept of free-riders; and it has created an impossible standard for unions to meet.

A right-wing law professor sympathetic to the freeloaders, John Eastman, sees it pretty much the same:

While not quite the stake in the heart that would kill public employee unions altogether, today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead.

Yes, and soon the middle class, the beneficiary of private and public sector union activity, will also be part of the walking dead. (Some think the death, if not the walking, has already come.)

After Monday’s terrible Court decisions, HuffPo featured this graphic:

liberals crushed in court

Take a look at those faces. When I saw that graphic the first thing I thought about was Hillary Clinton. She could win two terms as president. She could change that headline, change those faces, at least those who are getting old (Scalia and Kennedy are 78 this year). For all her faults, for all her snuggling up to Wall Street wallets, liberals who don’t much like her would do well to think about the graphic above (and about the fact that Ginsburg is 81 and Breyer is 76). Those five men, if they haven’t already, may end up doing more lasting damage to the country than even George W. Bush’s decision to invade and occupy Iraq.

And if Hillary Clinton can do anything to stop them, I’m with her all the way.

 

Conservative Justices Rewrite The Meaning Of Government-Sanctioned Prayer

First, a little story:

Two neighbors lived peacefully in a small town. One was a committed atheist and the other a committed evangelical Christian.

It happened that the atheist needed an important favor from his Christian neighbor. The atheist asked if he might come over to the Christian’s house and talk to him about it. “Sure,” said the Christian, “be here tomorrow at 10 o’clock. But I want you to know that I will have a preacher here when you come.” The atheist thought about it for a minute. Did he really want to endure the presence of a preacher? Did he really want to subject himself to what he knew was coming? But the favor he needed was so important that he thought it would be worth it. “Okay,” said the atheist, “I’ll be there.”

The atheist arrived at the Christian’s house on time and was welcomed inside. Before the two neighbors talked about the great favor the atheist needed, the Christian asked the preacher to pray. Here’s what the preacher began to pray:

Heavenly Father, please bless these two men and give them wisdom to do the right thing today. We recognize that your son Jesus came to save us from all unrighteousness and we thank you for sending him to die on the cross for us. 

Obviously the atheist was very uncomfortable with the preacher and his prayer. It offended him and made him sort of feel hypocritical and it also served to bully him. But he needed a big favor and he dare not show his discomfort or disapproval for fear that his Christian neighbor would hold it against him and not grant his request. So, being a practical atheist—he rationalized that his neighbor was a true believer and no amount of objections to the preacher or the prayer would change his mind anyway—he kept his head bowed and his eyes closed and, more important for the task at hand, he kept his mouth shut. The preacher finished: “In Jesus’ name we pray, Amen.”

The atheist eventually received the favor he sought.

It so happened that the Christian neighbor was also a member of the local city council. And it so happened that some time later our atheist neighbor was scheduled to appear before the council in order to request final approval of a zoning change for some property he owned. And, of course, it happened that when the atheist showed up for the city council meeting he had to endure yet another Christian preacher who opened the meeting by asking everyone, including the atheist, to stand and pray with him. Here was the prayer:

The beauties of spring are an expressive symbol of the new life of the risen Christ. The Holy Spirit was sent to the apostles at Pentecost so that they would be courageous witnesses of the Good News to different regions of the Mediterranean world and beyond. The Holy Spirit continues to be the inspiration and the source of strength and virtue, which we all need in the world of today. And so I pray this evening for the guidance of the Holy Spirit as the city council meets.

After the prayer, some of the council members, along with some of the gathered citizens, made the sign of the cross, and there was a collective “Amen.”

Now, there are two different endings to this story. You decide which one is more likely in the real world, given the circumstances:

FIRST ENDING

“Dammit!” said the atheist to himself, “It is one thing to tolerate my neighbor’s religiosity in his own house, but it is quite another to tolerate such religiosity in this the people’s house. This is as much my government as it is any Christian’s! And I shouldn’t be subtly coerced into participating in this nonsense.”

Thus, the atheist objected to the prayer before he made his appeal to the city to rezone his property and went home to await the results.

SECOND ENDING

“Dammit!” said the atheist to himself, “It is one thing to tolerate my neighbor’s religiosity in his own house, but it is quite another to tolerate such religiosity in this the people’s house. This is as much my government as it is any Christian’s! And I shouldn’t be subtly coerced into participating in this nonsense.”

But, the atheist thought, “If I object to the prayer I might piss off the council members, all of whom profess some kind of Christianity. And I really need that zoning change.” So, the atheist sat there quietly and reverently and kept his mouth shut about the prayer. He made his zoning appeal and went home.

Question: Should the city council be allowed, under our Constitution, to open its meetings with the kind of prayer quoted above?

Answer: Yes! Or so saith five conservative Catholics on the Supreme Court in Town of Greece v. Galloway

catholics on courtThis week we found out how important it is that Democrats never lose another presidential election and the accompanying privilege of appointing Supreme Court justices. The Court, peopled by five conservative Christians appointed by Republicans, ruled, by a 5-4 margin, that explicitly Christian prayers (the second prayer I used in my hypothetical story is almost identical to one cited in the opinion) are appropriate for opening local town and city council meetings across the country and do not represent “an unconstitutional establishment of religion.” 

In the main majority opinion, one among many opinions in this case, we find that the supposed purpose of the prayers “is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers.” As strange as that notion sounds to people who live in an age in which a lot of our horrible traditions have been eradicated (should we accommodate the need for someone to “connect” with the tradition of slavery or Jim Crow, for instance?), we also find a strange dismissal of the kind of intimidation that our atheist friend felt in my little story above:

The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the five catholicsprayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive… Respondents suggest that constituents might feel pressure to join the prayers to avoid irritating the officials who would be ruling on their petitions, but this argument has no evidentiary support. Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.

You see, if no town council member explicitly said that, say, a rezoning request was rejected because of a failure to participate in a public prayer, then the possibility of such a thing happening is not worthy of consideration. Apparently the majority on the Court assumes that a Constitution-offending city council would vote to turn down a proposal and then attach language to it that said, “We reject it because the applicant is an atheist.” Maybe there are a few public servants dumb enough to do such a thing, but not many.

But more than that, the majority completely dismisses the idea of the subtle form of coercion involved, especially when the Christian prayers are offered again and again as a matter of established practice. Our atheist friend, who thinks the entire enterprise of religious belief is City Council Meeting -Prayer 13-264.jpgnonsensical, nevertheless knows that if he were to object to the pre-meeting prayer, or merely sit quietly while others are standing during the utterance or offering “Amens” at the end, that his request for rezoning might not be seen in a favorable light by the Christian council members. That isn’t an unreasonable assumption. It’s certainly one that can be justified, knowing what we all know about human behavior. But the Court’s conservative Catholic majority said that because town leaders did not openly “signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished,” that there was nothing to worry about.

Worse still, the two extra-extreme extremists on the Court, Clarence Thomas and Antonin Scalia (who can’t even remember the meaning of his own opinions), went further and dismissed the legitimacy of coercion in these circumstances. Thomas wrote:

Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-not the “subtle coercive pressures” allegedly felt by respondents in this case…The majority properly concludes that “[o]ffense . . . does not equate to coercion,” since “[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.” […] I would simply add, in light of the foregoing history of the Establishment Clause, that “[p]eer pressure, unpleasant as it may be, is not coercion” either.

I find that a breathtakingly naive understanding of human nature, or a mind-blowing misrepresentation of how the real world works. Peer pressure by definition is a subtle form of coercion. In fact, here is how Wikipedia describes it:

Peer pressure is influence that a peer group, observers or individual exerts that encourages others to change their attitudesvalues, or behaviors to conform [to] the group norms

Here’s Dictionary.com’s definition:

social pressure by members of one’s peer group to take a certain action, adopt certain values or otherwise conform in order to be accepted.

Yet, we have judges sitting on the highest court in our land who have, or pretend to have, no understanding of what peer pressure means or how powerful a force it can be in certain situations.

Writing for the four dissenters, Obama-appointed Justice Elena Kagan (herself a Catholic) presented her own hypothetical cases involving such peer pressure:

A person goes to court, to the polls, to a naturalization ceremony—and a government official or his hand-picked minister asks her, as the first order of official business, to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels sufficient pressure to go along-to rise, bow her head, and join in whatever others are saying: After all, she wants, very badly, what the judge or poll worker or immigration official has to offer. Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believeindeed, what would, for her, be something like blasphemy. She then must make known her dissent from the common religious view, and place herself apart from other citizens, as well as from the officials responsible for the invocations. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government.

That is not the country we are, because that is not what our Constitution permits. Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture…The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceedingI could go on: to a zoning agency, a parole board hearing, or the DMVgovernment officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americansnone of them different from any other for that civic purpose. Why not, then, at a town meeting?

Why not? Because five conservative Christians on the Court said it is okay for local municipalities to essentially endorse Christianity by repeatedly invoking the name of Jesus at official government meetings. That’s why not.

[Photo credit: Laura Greene/HPE (city council at prayer)]

It’s Cheap To Be Rich

Nate Silver’s new FiveThirtyEight blog posted a piece by Ben Casselman this morning with the title,

Inflation May Hit the Poor Hardest

Yeah, well, Mr. Casselman, everything hits the poor hardest. A bad economy. A good economy. Everything. You know why? Because they’re bleeping poor, that’s why. But to be fair to the author, he was making a point about the fact that not everyone experiences the same rate of inflation. He begins his piece with this:

It’s getting more expensive to be poor.

He says that “families earning less than $20,000,” because they spend a disproportionate amount of their money on things like rent and utilities,

are experiencing a higher rate of inflation than the public at large even as their wages have stagnated…

The poor experience a double whammy: stagnating wages and a higher rate of inflation that eats away a disproportionate share of their purchasing power. And it is even worse than that. Just watch last night’s 60 Minutes segment on the working poor in Virginia’s part of Appalachia. Those folks are not only victims of a faltering local economy, but they are victims of the Republican Party in Virginia, a party that refuses to allow those poor working people to get the health insurance they are entitled to under the Affordable Care Act’s Medicaid expansion provision.

So, you’re damned right it is expensive to be poor in America.

But it is damned cheap to be rich.

Sheldon Adelson, from whom God sometimes has to borrow money till payday, is looking to buy himself a Republican presidential candidate for the 2016 race. Last time he spent almost $100 million in a losing effort. But don’t feel sorry for him. He made almost that much in two special hours last week. In any case, he told Forbes that this time he will “spend whatever it takes” to win. And whatever it takes will still be cheap for him.Republican Billionaire Sheldon Adelson

Unfortunately there are plenty of Republicans who want to be bought by Sheldon Adelson, including presidential hopefuls like Jeb Bush, Scott Walker, John Kasich, and the groveling Chris Christie, who if Adelson buys him will be getting a bargain, somewhere around $250,000 a pound—and that’s if Adelson only gives another paltry $100 million. Very cheap for a commander-in-chief who could blow up your enemies.

The Supreme Court, staffed by five conservative Republicans who believe that rich people should have a megaphone that matches their money, have now made it easier for Adelson and other moneyed folks to buy up what is left of American democracy. And although there ain’t much left to buy, thanks to Citizens United, what is left won’t cost those wealthy folks all that much. Last year Sheldon Adelson made about $22,000 a minute. In eleven short minutes he made enough to buy a pound of Chris Christie or a half-pound of Jeb! No problem! Cheap, cheap, cheap.

In the mean time, it remains very expensive to be poor, especially in western Virginia where, because of Republicans, folks have to rely on the occasional visits of two saintly nurses driving a raggedy 13-year-old Winnebago-turned-“Health Wagon” in order to stay alive.

health wagon2

Do Corporations Speak In Tongues?

“And they were all filled with the Holy Ghost, and began to speak with other tongues, as the Spirit gave them utterance.”

—The Book of Acts, 2:4

“If I speak in the tongues of men or of angels, but do not have love, I am only a resounding gong or a clanging cymbal.”                                                

—Paul the Apostle

I used to attend, quite faithfully, a Pentecostal-Charismatic church in which folks there spoke in tongues. Yes, they did. They stood up, usually during prayer time, and spoke in what sounded like a foreign language, a language many of them considered a heavenly language, such as an angel might speak, if there were angels. Many times after someone would speak to the congregation in tongues, someone else with an “interpretation” of the tongues would share it with the folks, this time in English. It was quite a phenomenon.

Now, I say all that in the context of what two corporations are asking the U.S. Supreme Court to do in terms of an alleged constitutional controversy involving the Affordable Care Act and religious freedom. Here is how the great SCOTUSblog reported it yesterday:

The Court granted review of a government case (Sebelius v. Hobby Lobby Stores) and a private business case (Conestoga Wood Specialties Corp. v. Sebelius).  Taking the Conestoga plea brought before the Court the claim that both religious owners of a business and the business itself have religious freedom rights, based on both the First Amendment and RFRA [Religious Freedom Restoration Act].   The Hobby Lobby case was keyed to rights under RFRA.

Noting that these particular cases don’t involve asking the court to “strike down the requirement that employers provide a full range of pregnancy-related health care under their employees’ health insurance plans,” SCOTUSblog says,

This time, the Court will be focusing only on whether the pregnancy-related care coverage can be enforced against profit-making companies — or their individual owners, when that is a very small group — when the coverage contradicts privately held religious beliefs.

It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate.  But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.

On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners).  The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.

Okay. So, it pretty much boils down to this: Do corporations speak in tongues? Do corporations do the kinds of things that I saw done at my old church? Can corporations stand in the midst of the congregation and speak in the tongues of angels? Or even the tongues of men?

The answer, obviously, is no they can’t. You know why they can’t? Because corporations don’t have real tongues with which they can speak in ethereal tongues. Because corporations, despite what the Supreme Court has previously said, aren’t people. They don’t have tongues to confess or brains to embrace religious beliefs, even if they happen to have human spokesmen who insist the law bend to the corporate owners’ theological dogmatism. And I believe a majority of the Court will see that corporations do not speak in tongues and are not people in that important, if possibly misguided, sense.

But it occurred to me that if the Supreme Court does decide that corporations have religious rights under the Constitution or under the law, then corporations will have truly become full persons entitled to all the benefits people have under our Constitution. Thus, if they are full, constitutionally-protected persons, they cannot therefore be “owned” by any other person, since the Thirteenth Amendment outlaws slavery. Here is what the text of that amendment says:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

So, the owners of Hobby Lobby Stores and of Conestoga Wood Specialties Corporation and all the other owners of corporations suing the government over the Affordable Care Act’s pregnancy-related health care mandates, should, upon winning their religious freedom case, set their corporations free.

Then all the corporations in America can say together in the tongues of men or angels: “Free at last, free at last, thank God almighty we’re free at last!”

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.

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