Month: April 2012

Judicial activism with a twist

by digby

Greg Sargent:

To the fainting couch! Obama attacked the Supreme Court and threatened it with a backlash, should it strike down his tyrannical scheme to impose a government takeover of health care on the nation!

That’s what many conservative writers and even some centrist ones are arguing. They are saying that Obama’s words about the Court yesterday were “unsettling” and a “witch-hunt,” and they’re likening them to F.D.R.’s efforts to pack the Court in retaliation for decisions striking down New Deal initiatives.

Ok, I give up. These people are now openly defending the Court against accusations of judicial activism?

I’m just going to print here the definition of judicial activism at the “Conservapedia”

“Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.

Courts in California — both state and federal ones — frequently engage in judicial activism. One major example of this is the relatively recent California Supreme Court decision In re Marriage Cases, wherein four California Supreme Court justices (who are appointed, not elected) unilaterally overruled the will of the people of the state of California, and legalized gay “marriage.” Proposition 22, which recognized the traditional definition of marriage had previously been put in place by a majority of California voters, but this did not deter the liberal judges of the court from acting. In response, a majority of California voters passed Proposition 8, which amended California’s Constitution to uphold the sanctity of marriage, stemming the tide of the liberal homosexual assault on marriage before it was too late.

Judicial activism should not be confused with the courts’ Constitutionally mandated rule in enforcing limitations on government power and preserving the Constitutional structure of government, as they did in Bush v. Gore, Boy Scouts v. Dale, and D.C. v. Heller.

Examples of judicial activism:

Griswold v. Connecticut – 1965 Supreme Court ruling establishing a constitutional right to posess, distribute and use contraception.

Roe v. Wade – 1973 Supreme Court ruling establishing a constitutional right to abortion.

Lawrence v. Texas – 2003 Supreme Court ruling establishing a constitutional right to sodomy.

They left out the original sin of liberal judicial activism — the one that caused all the hoopla to begin with — Brown vs board of education:

In fact, the Republican presidential candidates don’t seem to have gotten the word — they’re still out there running against the judicial activists in the federal courts.

None of this is to say that liberals are any less inconsistent when they attack the Court for judicial activism. But you can’t really blame them. The Republicans are the ones who turned this meme into a rallying cry a long time ago. They’re just appropriating it. And truthfully, liberals favor federal government so a court that challenges states’ rights and defends civil liberties, as the Warren Court did, isn’t quite as inconsistent as the wingnuts who bellowed for years about liberal activist judges now defending the federal courts. But I admit, it’s close thing.

The truth is that the Court is inherently political and always has been to lesser and greater degrees. But since the left is the faction in America that believes in government activism, progressives should recognize that as long as the conservatives have a 5-4 majority (or worse)the best they can do is hold back the tide through the democratic process and keep them from completely repealing the progress of the 20th century. This court is not going to ever going to be friendly to their agenda.

Unfortunately, the Democratic majority doesn’t seem to be inclined to do that. They want to “do things” not stop things so they are eager to enact “Grand Bargains” and “Big Deals” that basically advance the conservative agenda — which the court will codify.

It’s certainly possible that the Court will uphold Obamacare. It was, after all, a pretty conservative plan. But progressives should probably come to terms with the fact that their desire for progress at the federal level is mostly in a holding pattern until this court changes.(There will always be some room for progress — gay rights, for instance, looks to be one that’s transcending ideology.) And they should gird themselves for the fact that it could get even worse if the president is conservative at the time of a new Court vacancy — or even if the Senate remains in the grip of right wing influence.

Kagan and Sotomayor were both good appointments but they didn’t change the ideological bent of the court. The right is not going to allow a liberal majority on the Court any time soon — and I think they’ve proven that they will prevent it by any means necessary. They know very well the power they hold with a Court majority and they will protect it from “judicial activism” by any means necessary.

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Abstract freedom for the privileged

by digby

Alleged legal expert Ann Althouse offered a puerile libertarian defense of the Kennedy position in oral arguments over Obamacare:

“Liberty” is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn’t mean they’re going to love everything you slap a “liberty” label on!

Indeed. Being able to afford health care is a “high abstraction” to well paid college professors who are in good health and already have it. For the person who is sick or petrified of getting sick, it doesn’t feel quite as abstract.

This gets to the very essence of what drives me nuts about Randians. Their concept of “liberty” is the most cramped, narrow definition one can possibly fit into an plutocratic system.

Scott Lemiuex answers:

Universal health care has freedom-enhancing properties in a lot of ways: it allows you to move, or engage in entrepreneurial activities, without losing the employer-based coverage that is the only practical means of obtaining insurance for those who aren’t poor or extremely wealthy. Mobility, particularly in American constitutionalism, has always been a treasured liberty. Bankruptcy is, to put it mildly, detrimental to liberty in all kinds of ways. Beyond that, whether you want to call the security that comes from health coverage freedom-enhancing is a matter of taste, but this security is certainly more valuable to most people that the “freedom” of knowing that you can be bankrupted by an accident or unforeseen illness.

The even bigger problem here is that the rugged individualists who go without health insurance are not making a “choice” to be free of state constraint and state-provided benefits. They are, in fact, making a choice to stick the taxpayers with the bill if they have a medical emergency. Even a moderately sophisticated libertarian understands that the “freedom” to free ride is no freedom at all.

Perhaps Althouse, like the judicial idol she defended so feebly, would prefer a libertarian dystopia in which people who aren’t lucky enough to have taxpayer-funded health insurance are just left to die from accidents or treatable illnesses. But whatever they would like the policy baseline to be, what matters both for public policy and for the question of whether the mandate is a necessary and proper part of a concededly constitutional regulatory framework is what the policy baseline under federal, state, and common law actually is.

At the moment, that general social framework requires that we don’t allow people to die in the street for lack of health insurance.

But if the Randroids have their way, that will change. They’re just preparing the ground.And the silly Tea Partiers will be happy to help them because they believe they will never be among those who are on the losing side of that game. Maybe they feel “free” in making that choice, but it’s a damned shame their twisted brand of “freedom” results in the suffering of millions of others.

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Only in Arizona

by David Atkins

Viva Jon Stewart:

God forbid anyone call Republicans institutional racists. That would be deeply unserious, horribly divisive and terribly partisan.

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Fundamentalist bedfellows

by digby

This is nice:

That’s the gay pride flag flying over a military installation in Afghanistan.

Tony Perkins of the family research council is very upset:

PERKINS: Where is the concern now for angering Afghan Muslims, who vehemently oppose homosexuality? The issue is as much an issue of military security as it is of religious morality. After February’s accident with the Korans, American lives were lost. What price will we pay because some want to use the military to show their gay pride?

Let’s call him Tony “Neville Chamberlain” Perkins from now on, ok?

I think Tony’s coming perilously close to suggesting that Americans should adopt Sharia Law, don’t you think? But then, there’s nothing new in that. If there’s any group that hates gays as much as the Taliban, it’s Tony Perkins and the Family Research Council. In fact, they share a whole bunch of conservative religious values. It’s a natural that they’d hook up eventually.

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The BS Cult

by digby

Stan Collender makes the important observation that some of the most deluded, fringe characters in politics today are the deficit scolds who have turned Simpson-Bowles into a religion:

B-S and some of their biggest supporters then made a huge mistake when they expressed surprise and extreme disappointment that the Obama administration didn’t make the co-chairs’ recommendation the basis of its fiscal 2012 budget, that is, the first one it submitted after the commission ended.

That demonstrated a level of political tone deafness that seriously hurt the credibility of what had now become a B-S cult. They were seriously suggesting that the Obama White House unilaterally support the tax increases and spending cuts included in the two co-chairs’ plan even though it was virtually guaranteed that the GOP would never agree to do the same and would punish Democrats for doing so.

The B-S cult also showed its political naivete by pushing ahead and suggesting that voter support for deficit reduction was large enough to protect the president and that he would thrive politically if he just supported what the co-chairs’ had recommended. The Bowles-Simpson insistence that there was a large, vocal constituency for substantial spending reductions and tax increases when even the results in their own commission, let alone the results of the past 30 years, proved just the opposite and made it easy for the White House, House, Senate, Democrats, Republicans, liberals, conservatives and just about everyone other than members of the cult to dismiss the B-S cause as nothing more than a political fringe effort.

In other words, the B-S “brand” was irreparably damaged. Instead of being commonly accepted as a sincere effort by well-meaning people to come up with a deficit reduction plan that could be supported by both political parties, had a chance of succeeding and, therefore, was something that many people wanted to be associated with, B-S became synonymous with bad politics and worse political judgment. That made it easy for members of Congress to run away from anything associated with it.

The fact that B-S supporters had become more of a political cult who drink their own Kool-Aid and believe what they’re saying when few others do was put on display for all to see last week when something called Bowles-Simpson was offered as an amendment when the House debated the fiscal 2013 budget resolution.

By the time the B-S amendment was announced, it was already clear that no amendment had any chance of beating the plan put together by Paul Ryan and offering it made no sense because it was guaranteed to fail. Moving ahead was the budget equivalent of a presidential candidate deciding to run in a primary that she or he has absolutely no chance of winning. Not only are the results bad, but it raises serious questions about the quality of the decision making that led to entering the race in the first place.

In other words, B-S supporters again looked and sounded politically tone deaf and not ready for prime time.

Read the whole thing. It’s a refreshing bit of clarity. It’s so nice to see someone point out that the so-called moderates and centrists are deluded and incompetent, along with being wrong on the merits. If only the rest of the political establishment knew this.

Unfortunately, it would appear that we can add Nancy Pelosi to the cult of BS:

House Minority Leader Nancy Pelosi on Thursday threw her support behind the sweeping budget proposal crafted by President Obama’s fiscal commission, a plan she once deemed “simply unacceptable.”

The California Democrat said she only voted against a budget amendment Wednesday that was based on the recommendations of fiscal commission co-chairmen Alan Simpson and Erskine Bowles because the package had been altered.

The budget amendment, sponsored by Reps. Steven LaTourette (R-Ohio) and Jim Cooper (D-Tenn.), was a “caricature” of the Simpson-Bowles plan, Pelosi charged. She said she would have supported the original plan had it been offered up for a vote.

“They advertised it as Simpson-Bowles, but they changed the spending and revenue provisions in it, and so it did not receive support on either side of the aisle because it was not a good idea,” Pelosi said during her weekly press briefing in the Capitol.

“I felt fully ready to vote for that [Simpson-Bowles] myself, thought it was not even a controversial thing. But it is not what that is,” she added. “And swings of tens-of-billions of dollars mean something in terms of the lives of the American people.”

Pressed if she would have supported Simpson-Bowles in its initial iteration, Pelosi said, “Yes, yes.”

I’m told that she wasn’t really referring to Simpson Bowles but rather the general concept of a “Grand Bargain.” That’s not exactly reassuring.

The only good news here is that if Nancy Pelosi says that Simpson-Bowles is a terrific plan, you can bet that the Republicans will double their efforts to oppose it. Hopefully, Pelosi was being more clever than we think.

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Whither moderates?

by David Atkins

E.J. Dionne has a good piece in the Washington Post today, touching on the alarming rightward lurch of the last twenty years. After noting the remarkable conservative shift in conservative budgets and in SCOTUS arguments on the Affordable Care Act, Dionne points out the obvious:

A small hint of how this push to the right moves moderates away from moderation came in an effort last week to use an amendment on the House floor to force a vote on the deficit-reduction proposals offered by the commission headed by former Sen. Alan Simpson and Erskine Bowles, former chief of staff to Bill Clinton.

You learned only in paragraphs buried deep in the news stories that the House was not even asked to consider the actual commission plan. To cobble together bipartisan support, sponsors of the ersatz Simpson-Bowles amendment kept all of the commission’s spending cuts but slashed the amount it prescribed for tax increases in half. See how relentless pressure from the right turns self-styled moderates into conservatives? If there’s a cave-in, it’s always to starboard.

Note how many deficit hawks regularly trash President Obama for not endorsing Simpson-Bowles while they continue to praise Ryan — even though Ryan voted to kill the initiative when he was a member of the commission. Here again is the double standard that benefits conservatives, proving that, contrary to establishment opinion, Obama was absolutely right not to embrace the Simpson-Bowles framework. If he had, a moderately conservative proposal would suddenly have defined the “left wing” of the debate, just because Obama endorsed it.

This is nuts. Yet mainstream journalism and mainstream moderates play right along.

Liberal bloggers have been pointing this out for almost a decade now. Just as with “he said she said” journalism, increasingly those complaints have started to become acknowledged in more “serious” traditional sources.

But what of so-called moderates? At some point even the devotees of the High Broderist church must realize that despite their self-satisfaction at avoiding nasty “partisanship” and “labels,” they’re going to boil in this pot just like the rest of us.

That’s part of why we’re seeing efforts like “No Labels” or candidacies like that of Linda Parks. There are a bunch of closet Eisenhower/Nixon Republicans and Reagan Democrats out there who refuse for variegated reasons to join with the progressive or even the Democratic cause, but know well that the Republicans have gone far off the deep end.

But rather than look introspectively at whether their own viewpoints might need some re-evaluation, their instinct is to put their fingers in their ears and scream “Both sides are so AWFUL! Can’t we stop the partisanship?” It’s the coping mechanism of a five-year-old child with cognitive dissonance.

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Spreading freedom

by digby

So, I guess all Americans should be prepared to be strip searched if they happen to find themselves in custody, no matter what the charge or (lack of) evidence of criminal behavior:

The Supreme Court case arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in two counties, and he was strip-searched twice. There is some dispute about the details but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

The great moderate “swing” Justice,Anthony Kennedy, who apparently believes that everyone who is taken into custody is potentially a serial killer, said;

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs but also public health and information about gang affiliations.

About 13 million people are admitted each year to the nation’s jails, Justice Kennedy wrote.

Under Monday’s ruling, he wrote, “every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.”

Well at least they didn’t make cavity searches mandatory, although I can’t think why they wouldn’t. If it’s important for police to have the ability to make suspects who are arrested on a warrant for an unpaid fine strip and “spread their cheeks”, it’s hard to see what the logic would be in denying them the ability to feel around. After all, he could have had a deadly weapon stashed way up in there.

This is punitive, anyone can see that. They are “breaking down” suspects with humiliation to make them docile and afraid. There is no reason to grant the police blanket permission to do this except for a naive belief that anyone who is arrested must be guilty of something.

This by the way, is a perfect illustration of modern conservatism’s definition of freedom. As per the previous post, they believe it is fundamental to liberty that property and wealth be protected from government coercion. But the police powers of the state easily extend to forcing individuals who are suspected of nothing more than failing to pay a fine to get naked and spread their cheeks for a policeman.

The majority of the court, by the way, also thinks actual evidence of innocence is irrelevant in death penalty cases. They are living in another dimension.

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Beyond profits

by digby

Jeffrey Rosen wrote this in the NY Times Magazine in June of 2008, nearly four years ago:

Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.[…]

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.

dday commented at the time:

And they did reduce that punitive-damage award, as we know. David Souter, one of the court’s “liberals,” wrote the opinion.

The hot-button issues of gun rights and Roe get all the ink, but ex-corporate lawyer John Roberts has really revolutionized the nation’s highest Court, and on issues with business interests at the forefront he have shown himself and his Court extremely willing to ignore precedent and to act in an activist fashion

Luckily the moderates on the court seem to have wised up. The question is, what does the Roberts Court really think is a business interest?

I suspect that many people believed that because Obamacare was so deferential to the insurance industry — essentially forcing 30 million new customers to buy their product, even if it might be for their own good — that the court would naturally uphold the law. After all, it was good for business. But it didn’t seem to go that way.This new article by Jeffrey Toobin about the Obamacare oral arguments shows how weird it really was:

Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”

It would seem that no pro-business Democratic policy is going to be quite good enough to protect the oppressed minority corporations from the predations of average citizens.

There’s been a lot of commentary exposing the conservative members’ hackish rhetoric and ignorant lack of understanding of how the health care market works. But that’s not really the issue for these people. These conservatives’ first principle is that government regulation of industry is an impingement of corporations’ constitutional rights.

They are as activist as it is possible for a court to be, which, let’s be honest here, is not unprecedented. But while the Warren Court took up the cause of individual human rights, the Roberts Court is trying to liberate wealth and property from the shackles of forced social responsibility. It’s all about rights and freedom but it depends on whether you think those concepts rightly belong to individual human beings or whether you think that business and property have a greater claim. I think it’s fairly clear what this court believes.

The one argument I’ve heard that could lead someone to think there is a possibility that this court would temporarily stall its own long term agenda is the idea that striking down this mandate puts a big crimp in the Social Security privatization scheme and the financial industry really wants its hands on all that money. Unfortunately, their confused and misplaced worries about the insurance industry argue for the idea that their “principles”, such as they are, outweigh the profits of the industries they seek to protect if those profits derive in any way from government coercion. I’m not sure even business knows where that might lead, but I’m guessing that at some point there will be some dissonance on the right.

Of course, they are also seeking to remove the government’s ability provide similar services for ordinary Americans so what may seem like a principled stand against crony capitalism is really a radical plan to turn our society into a Hobbesian nightmare. If you have enough money, you have nothing to worry about.

And hey, Galt’s Gulch will be there for those of you talented producers who deserve to live like dignified human beings. I suspect it will be a lot like Las Vegas but without all the icky middle class and poor people.

Update: I have a sneaking suspicion that the president lecturing the Court about legitimacy and judicial activism might not carry a lot of weight with them.

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Quote ‘O the Day

by digby

ABC News

Ann Romney asked about Romney being “too stiff”: “I guess we better unzip him and let the real Mitt Romney out because he is not!”

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When terrorism is no big deal

by digby

And nobody gives a damn …

Police are looking for a suspect after a bomb went off Sunday night outside a Planned Parenthood clinic in Grand Chute, Wisc.

WGBA, the NBC affiliate in Green Bay, reported the explosion did only a small amount of damage to the building. The television station did not report any injuries.

What? No terrorist manhunt? Why not?

Ask yourself how this would be treated if it were an airport? Or a bank?

I realize that Planned Parenthood clinics have been getting bombed for decades and it would seem that most of the country thinks that’s not a problem. Or at least Republican politicians and the religious people of the right don’t since they incite this stuff on a daily basis. But still, you’d think there would be just a little bit more disapprobation. When you have the police agencies at all levels of government sparing no expense or manpower to chase down elusive threats from deadbeat muslim terrorist wannabes (not to mention innocent people)you’d think there would be a little bit more concern about a decades-long terrorist threat against American women exercising their constitutional rights. At least enough of a concern that major candidates for president of the United States wouldn’t feed the flames by pandering to the would-be terrorists.

Update: Let’s just say it also isn’t helpful when major newspapers run articles that are filled with misinformation and lies on the subject.

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