Author Page for Scott Lemieux

Citizens United: Another Trip to the Slaughterhouse

I have some initial thoughts about Jeffrey Toobin’s Citizens United piece. The key takeaway for me is that Roberts’s procedural shenanigans (which don’t terribly offend me in themselves) are consistent with the key substantive problems with the opinion. My somewhat idiosyncratic take on Citizens United is that it’s sort of a Slaughterhouse Cases for the 21st century. As many of you know, in the infamous 1873 case the Supreme Court held that a Louisiana slaughterhouse monopoly didn’t violate anybody’s 14th Amendment rights — a perfectly unexceptionable outcome. The problem is that to reach this outcome Miller’s majority opinion issued radically sweeping holdings about the meaning of the 14th Amendment (“the equal protection clause provides only a narrow set of formal rights to freed slaves! The privileges and immunities was a meaningless redundancy that just protected a few minor rights that were already protected before the Civil War!”) that 1)were utterly unnecessary to decide the case, and 2)transparently wrong. As Field noted in his dissent, if we buy Miller’s reading of the p&i clause, “it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”

And so it is with Citizens United. Whether it had ruled on statutory or constitutional grounds, I think the Court was actually right to hold that the FEC didn’t have the authority to suppress the broadcast of Hillary: the Movie! But in reaching this correct outcome, the Court went far beyond what was necessary to decide the case, which might have been OK except that the Court’s ruling resulted in the preemptive acceptance of vastly less compelling First Amendment claims.

Today in Right-Wing Identity Politics

Ah, Virginia Republicans, the party that decided after George Allen proved his racism beyond all doubt that they’d like him to run again. Now, they refuse to confirm judges based on their sexual orientation:

Shortly after 1 o’clock this morning, the Virginia House of Delegates proved that it can indeed be as mean-spirited and parochial as its detractors at Comedy Central have come to expect. By a slim margin, the House voted to kill the judicial nomination of an openly gay Richmond prosecutor who had bipartisan support going into the vote. A last-minute lobbying effort by the very same social conservatives who pushed unsuccessfully to mandate “medically unnecessary trans-vaginal ultrasounds” this past spring, successfully killed Tracy Thorne-Begland’s bid for a judgeship, based on claims that his 20 years of “activism” on gay rights issues made him unfit to sit on the bench.

Thorne-Begland won only 33 votes of the 51 he needed to win the judgeship. Thirty-one delegates voted against him, and many abstained. He was the only candidate voted down. The only issues on which Thorne-Begland was challenged were his same-sex partner and his gay rights activism. There wasn’t even a claim that he was unfit for any reason other than who he is and what he has fought for.

Next: the legislature will vote to make “Massive Resistance” the state motto.

To Reiterate

I remain baffled by the number of people who are convinced that the superficially moderate Romney who was governor of Massachuetts is the “real” one who’s just pretending to be a wingnut to get the Republican nomination. If you look at the less visible parts of his record in context, I think it’s much more likely that he’s substantially more intrinsically conservative on social issues than any Republican nominee in decades. It doesn’t matter since he’ll govern as a wingnut no matter what he “really” believes, but I suspect he’s more Santorum than Nelson Rockefeller.

Ideas With No Non-Pundit Constituency Fail to Find Supporters

Nobody could have predicted!

And the center not only did not hold, it couldn’t seem to get any attention whatsoever. Americans Elect, a lavishly funded “centrist” group that was supposed to provide an alternative to traditional political parties, has been a ridiculous flop. Basically, about seven people were actually excited about the venture — all of them political pundits. Actual voters couldn’t care less.

[...]

So why Americans Elect? Because there exists in America a small class of professional centrists, whose stock in trade is denouncing the extremists in both parties and calling for a middle ground. And this class cannot, as a professional matter, admit that there already is a centrist party in America, the Democrats — that the extremism they decry is all coming from one side of the political fence. Because if they admitted that, they’d just be moderate Democrats, with no holier-than-thou pedestal to stand on.

Americans Elect was created to appeal to this class of professional centrists — which meant that it was doomed to go nowhere.

But without a third party, who will sit Jim DeMint and Sherrod Brown down and tell them to cut the bullshit?

Kilgore:

Assuming AE is unlikely to just call the whole thing off, I’d suggest they cut to the chase and nominate their most prominent backer, New York Times columnist Thomas Friedman, as the nominee. Under AE’s elaborate rules, he’d presumably have to disclose a party affiliation and then choose a running-mate from a different party. But he could certainly self-identify as a member of the Friedman Party, and then choose a running-mate from the Party of Richard Cohen or the Party of Robert Samuelson or the Party of David Brooks. It would be a Very Serious Ticket.

I dunno, I can’t see a movement taking off without a true electoral powerhouse like Erskine Bowles.

And while you’d like to think that nobody paid to write about politics for a living could possibly have taken thus seriously, you’d be wrong.

Supreme Power And FDR’s Court-Packing

I had a request in comments to discuss how new historical findings have complicated the traditional story about FDR’s Court-packing plan and the “Switch in Time That Saved Nine.” Since this also gives me a chance to do something I’ve been meaning to do for a while — discuss and fulsomely praise Jeff Shesol’s recent book Supreme Power — I thought I’d take the request.

As most of you know, as the culmination of a long, if erratic, series of reactionary opinions by holdovers from the McKinleynomics regime on the Supreme Court, in 1936 the Supreme Court two issued widely and justifiably ridiculed opinions 1)striking down New York’s minimum wage law based on an implied “liberty of contract” that envisioned impoverished workers and their employers as being on equal footing as bargaining partners and 2)holding that a coal mining concern that sent more than 95% of its product out of state was not engaged in interstate commerce and hence its labor relations were beyond the reach of the federal government. In 1937, the Court reversed itself, upholding a state minimum wage law and the National Labor Relations Act in cases that, for all intents and purposes, rested on facts that were materially indistinguishable from the 1936 cases. Since the key intervening event was FDR’s proposal of a Court-packing plan , the classic civics textbook history is that while the plan stalled in the Senate it fundamentally succeeded by causing the Court to back down.

However, historical evidence complicates this claim. We know, thanks to the work of Bruce Ackerman and other historians, that swing vote Owen Roberts had already voted in conference to sustain the Washington minimum wage law three months before the Court packing plan was announced. And he shifted his vote although, as Shesol shows, FDR went out of his way not to make the Court a campaign issue in 1936 although he had been highly critical in the past. (Chief Justice Huges also switched of half-switched his vote in some case, although he was never a decisive vote in these cases and apparently he was being largely strategic when he joined Roberts and the Four Horsemen.) The Court did hear oral arguments in Laughlin Steel right after the announcement of the plan, so it’s possible that the pressure affected Roberts’s vote in that case, although since he had already switched once it’s hard to say.

So if it wasn’t the Court-packing plan, or at least just the Court-packing plan, what was it? Roberts always maintained that he was perfectly consistent, but essentially nobody believes him.  Not only are the votes transparently inconsistent, but as Shesol points out Roberts’s rationale directly contradicts the facts. Roberts says that he voted against the New York minimum wage bill in Tipaldo because New York refused to ask for Adkins to be overruled, but since Washington explicitly asked for the controlling precedent to be reconsidered he switched his vote in Parrish. But, actually, the reverse is true: New York, while arguing that its carefully drafted bill could be distinguished, also asked for Adkins to be overruled while Washington didn’t. So Roberts certainly did change his mind for reasons that had nothing to do with case facts.

If it wasn’t the Court-packing plan directly, I certainly don’t doubt that political pressure of various kinds affected Roberts. Roberts was a Republican corporate lawyer who also liked to think of himself as enlightened and moderate, and he also had presidential aspirations that his 1936 Supreme Court votes permanently ended. He had authored a key opinion undermining the “liberty of contract” doctrine before rejoining the reactionary faction of the Court. So it’s likely that the reaction against the extremist 1936 opinions affected him. As Shesol demonstrates, the reaction to Tipaldo in particular was fierce and bipartisan — “out of the 344 editorials…only 10 supported it.” The vain and insecure Roberts may have also been affected by a Stone dissent in another 1936 case that was unusually cutting for the era and completely shredded Robert’s opinion. (One of the many thing Supreme Power documents well is the extent to which the cavalcade of reactionary nonsense pushed Stone to the end of his rope. After one particularly silly Sutherland opinion gutting the SEC’s investigatory powers, Stone wrote Felix Frankfurter that the opinion “was written for morons…When our Court sets at naught a plain command of Congress, without the invocation of any identifiable prohibition of the Constitution, and supports it only by platitudinous irrelevancies, it is a matter of transcendent importance.”   Alas, the quality of conservative jurisprudence hasn’t necessarily improved much.)

So while the Court-packing plan itself may not have influenced Roberts, political pressure more generally (including FDR’s previous willingness to play constitutional hardball) almost certainly did. And the 1936 opinions were so extreme and untenable — collectively producing a situation in which neither level of government had the ability to pass fundamental regulations, based on strained or entirely judicially invented readings of the Constitution — that it was a matter of time in any case.

NHL Very Quick Picks

Having improved all the way to .500 in the last round,I’ll try to at least match that last time. In the West, it’s the Kings (a pick I tweeted last night so you won’t think I’m cheating!) I continue to think that LA’s performance in the playoffs is more indicative of the talent of their roster than their regular season record, so I think they’ll beat the game but overmatched-in-talent Coyotes in, let’s say, 5. One argument I made in comments last time I’ll reiterate is that while his reputation seems to suffer from the more dubious coaching performances of his brothers, Darryl Sutter is an excellent coach. His first Chicago team improved by 16 points; his San Jose teams defied the Plexiglass Principle 4 years in a row, rare in any pro sport; and he took a Calgary team that was basically 2 elite players (one of whom Sutter acquired for a 2nd round draft pick) fronting a real good AHL team to within a goal of the Stanley Cup, 103 points the next year. Like a lot of defensive hardass types he doesn’t necessarily have a long shelf life but he was a great hire for an underachieving Kings team.

In the East, I’ll stick with the Rangers on the threadbare reasoning that in a series that figures to have a lot of close games I’ll take the team with the superior goaltending, and being in the camp that thinks he was a little overrated at his peak I don’t believe in the 40-year-old Brodeur. Plus, I think Berube will be able to will the spirit of Stephane Matteau in a Game 7. But I was impressed and evidently surprised by how easily Jersey handled the Flyers, so I won’t be surprised if they win.

Reid v. the Filibuster

While it won’t do much in the short term for the war to get rid of the indefensible, Harry Reid saying that it was wrong not to restrict the use of the filibuster is a good sign. My guess is that it will require a Republican majority to do it, but eventually things might get bad enough that more senators will start valuing the ability to get some kind of agenda passed over the preservation of their individual prerogatives.

LBJ and the Bully Pulpit

Ygelsias beat me to it, but as the new Caro indicates one person who didn’t accept the narrative that Lyndon Johnson got an impressive domestic agenda passed by using the BULLY PULPIT do get around Congress was…Lyndon Johnson. And LBJ didn’t believe this not only because he was a powerful congressional leader who was the protege of another powerful congressional leader, but because he also cut his political teeth as an FDR man. And he therefore knew that after the election in which FDR showed the immense power of the BULLY PULPIT by welcoming their hatred first FDR’s Court-packing initiative failed, and then very little legislation of importance passed for the remainder of his tenure, thwarted by the coalition of conservative Democrats and Republicans who consistently stopped major social reform between 1938 and 1964.

LBJ’s skills and priorities mattered, because being an “affiliated” president at the height of the strength of a regime gave the agenda-setting powers of the presidency unusual importance, and since LBJ had extensive experience in Congress he (unlike, say, Clinton on health care) he was well aware that the idea that you could go over the head of Congress and impose your will was nonsense. And it’s not as if there was only one direction LBJ could have gone — an affiliated president can favor all parts of an affiliated coalition equally, and while Polk in a similar position decisively sided with the Slave Power Johnson on domestic policy advanced the agenda of the progressive elements of the Democratic coalition. (And LBJ is also a classic example, of course, of Skowronek’s argument that this is where coalitions collapse — on the one supporting civil rights and antipoverty legislation led to Southern conservatives leaving the Democratic coalition for good, and the need to keep important domestic constituencies on board — especially organized labor — contributed heavily to the Vietnam disaster that undermined the Great Society and also prevented LBJ from running for the nomination in 1968.) But where he was successful, LBJ took advantage of an unusually favorable opportunity; he didn’t succeed because he used the BULLY PULPIT to force crucial members of Congress to do things they didn’t want to do.

For Conservatives, There Will Never be a Right Way to Change the Status Quo

In the unfortunately timed post Erik mentioned last week calling out Obama for being incoherent on same-sex marriage, Ross Douthat made a familiar claim:

The first reason is that while the increase in public support for same-sex marriage over the last two decades has been astonishingly swift, it has not been irreversible. Instead, sudden bursts of legal momentum – mostly driven by judicial rulings, from Massachusetts to Iowa – have often prompted temporary backlashes. In Gallup’s polling, support for same-sex marriage rose from 35 percent to 42 percent between 1999 and 2004, but then dropped back to 37 percent; it rose to 46 percent just before Obama’s 2008 victory, but then dropped back to 40 percent a year later. Today’s 50 percent support likewise represents a slight drop-off from the high of 53 percent in the survey Gallup conducted last year.

This pattern suggests that Americans grow more resistant to same-sex marriage the more they feel that it’s being imposed upon them by an unelected judicial elite, and grow more supportive the more it seems to be gaining ground organically.

First of all, the very modest and temporary “backlash”  to some judicial rulings doesn’t prove what Douthat does, because there’s no meaningful comparison with cases where legislatures have granted marriage equality, a less typical and more recent phenomenon.    The fact that the Maine initiative he later discusses was passed in response to action by elected legislators makes it quite clear that opposition to same-sex marriage is driven by substantive, not procedural, concerns.   Opponents of same-sex marriage have never acquiesced to legislative-driven changes.  

But the even bigger problem is that the big picture of the polls he cites completely repudiates the judicial backlash thesis.   After nearly a decade of largely litigation-driven gains by proponents of same-sex marriage same-sex marriage has become much more popular.   If that’s the bad effects of favorable judicial rulings, I hope we see more of them.    And the fact that president has endorsed marriage equality at the outset of what figures to be a very tough re-election fights just draws a line under that. This concern trolling from the side that knows very well that it’s losing the medium-term war is about as unconvincing as it gets.

But, then, I don’t really need to refute Douthat’s thesis when he’s generous enough to do it for me:

A president is not an unelected judge, but a public flip-flop on the issue by the nation’s chief executive might feel like yet another elite attempt to pre-empt a debate that appears to be moving toward a resolution, but hasn’t quite been settled yet.

So, in other words, when elected officials back same-sex marriage they’re also “elites” trying to force same-sex marriage on an unwilling public (and changing your mind, unlike continuing to favor marriage discrimination, is presumptively illegitimate “flip-flopping” — a neat trick.) For Douthat, like most opponents of same-sex marriage, citing procedural objections is just an opportunistic shell game. No matter how same-sex marriage is liberalized, to opponents it will never be done in the right way. And arguments that opposition to marriage equality is driven by principled hostility to “judicial activism” are increasingly farcical in light of the Republican campaign to strike down the centerpiece domestic initiative of the Obama administration based on weak, ad hoc constitutional arguments almost nobody was advancing in 2008.

Frank Francisco

As likable as he is talented!

Speaking Of People Who Should Never Be Taken Seriously Again

Generally, there’s not much point in trying to tell whether a public figure is actually lying or just bullshitting. But in the case of Powell’s highly consequential, entirely wrong UN speech it’s pretty clear that he was lying.

And speaking of people who keep their sinecures forever despite not knowing anything about anything, let us revisit Mr. Richard Cohen:

The evidence he presented to the United Nations — some of it circumstantial, some of it absolutely bone-chilling in its detail — had to prove to anyone that Iraq not only hasn’t accounted for its weapons of mass destruction but without a doubt still retains them. Only a fool — or possibly a Frenchman — could conclude otherwise.

[First link via]

Aristocracy and the Student Loan Bubble

Maritn and Lehren’s story on the crushing burden of student debt is very much worth reading in its entirety. But one point that shouldn’t be forgotten is that this is in large measure part of Republican initiatives to slash public services and redistribute wealth upwards. On one hand:

Ohio’s flagship university, Ohio State, now receives 7 percent of its budget from the state, down from 15 percent a decade ago and 25 percent in 1990. The price of tuition and fees since 2002 increased about 60 percent in today’s dollars.

The consequence? Three out of five undergraduates at Ohio State take out loans, and the average debt is $24,840.

Well, maybe this is because the Ohio government is focused relentlessly on insuring that programs for the most vulnerable remain funded? Oh, wait, this is a Republican-governed state, so:

There is an ideological and political tug of war as well. State Representative John Patrick Carney, a Democrat, said if legislators were serious about financing higher education they could find a way, like eliminating tax breaks for corporations. He noted that even as funds for higher education were being reduced, Mr. Kasich and the Republican-controlled Legislature eliminated the state’s estate tax, which will cost the state an estimated $72 million a year.

Republican governance in a nutshell — do everything to ensure the perpetuation of an aristocracy from generation to generation, and then do what you can to ensure that children who aren’t part of this aristocracy don’t have a chance.