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[ 67 ] June 30, 2015 |

As Lennie Briscoe would say, nothing good comes from this:

In an expected but potentially devastating blow to public sector unions, the Supreme Court announced on Tuesday that it will hear a case called Friedrichs v. California Teachers Association in its next term. Friedrichs, as Justice Elena Kagan explained in a similar case last year, asks the justices to “impos[e] a right-to-work regime for all government employees” throughout the country, and it does so based on an aggressive reading of the First Amendment that could have absurd consequences for the government’s relationship with its own employees. Should this case prevail, moreover, that decision could be an existential threat to many public sector unions, potentially draining them of the money they need to operate.

Looks like we might be heading for another failure of the Affordable Care Act.

The Left-Right Coalition Against the ACA

[ 218 ] June 30, 2015 |



The [ACA’s] critics have consistently presented a much louder and more certain attack, and its supporters a more cautious and muted defense, and this has remained the case even though, on virtually every point, the critics have been wrong and the supporters right.

And what’s worse is that it’s not just people on the right who continue to repeat erroneous claims about the ACA. I see Trudy Lieberman is doing the rounds shilling for her disgracefully dishonest Harper’s story on the ACA. Now NPR listeners, and not just subscribers, will “learn” a bunch of lies: that the Medicaid expansion hasn’t reached many people because of the structure of the act itself rather than the Supreme Court and then Republican public officials, that the ACA is increasing the cost of health care rather than making it cheaper, that the current number of uninsured is the ceiling rather than the floor, that the statute passed at the behest of insurance companies rather than in spite of their fervent and expensive opposition. Particularly since the destruction of the ACA would lead to the vastly inferior status quo ante or something even worse than that, Lieberman is collaborating with the ACA’s right-wing opponents, wittingly or not.

Lieberman derides Paul Krugman as a “cheerleader” for the ACA (underlining that the point of her article is not to inform readers or to figure out a way to address the many remaining defects of the American health care system as to congratulate herself for her brave ideological purity.) Only when people read Krugman’s shorter summary of the ACA they will learn much more and what they learn will actually be true.

While we’re here, I don’t think that A.W. Gaffney’s recent Jacobin piece was nearly as objectionable as Lieberman’s. It wasn’t largely devoted to right-wing talking points about the ACA. But it’s still based on two telling related mistakes. First of all, it also yadda-yaddas the Medicaid expansion, a particularly serious problem when you’re asserting that the ACA is devoid of egalitarian commitments. The ACA is neither purely “neoliberal” nor purely left-egalitarian; it’s a compromise between these elements. Which isn’t surprising, since the Democratic coalition is, as it’s always been, a coalition of left-liberals with moderates and conservatives, and federal social programs have always reflected these tensions. Gaffney’s 2014 article is based on a similar mistake: there’s been no “turn” away from support for universal health care. In 2010 as in 1948, there were many Democrats who would have supported a more universal model, and there were Democrats who didn’t, and the votes of the latter were essential to anything passing. Had supporters of more universal care insisted on a more universal model, they would have gotten what their predecessors got under Truman and Nixon: nothing. The left wing of the Democratic Party blowing up the ACA because it was too neoliberal would not in fact reflect a greater commitment to egalitarianism (as I’m sure Gaffney would agree.)

Which brings us to this curious passage:

There are many roads to what is called, often problematically, “universal health care.” Some nations — for instance, Canada — have systems of national health insurance in which a governmental “payer” insures everyone (though the provision of care may remain predominantly private). Other nations have “national health services” — e.g., Britain — where the provision of care is a direct public service.

There is a very curious omission here: hybrid European models that 1)achieve egalitarian health care goals at least as well as British nationalization or Canadian single-payer, and 2)are far more viable endpoints for a better American health care system. If you’re trying to figure out a better path in the United States, policies passed by Westminster-style parliamentary systems is the last place you’d look. If you’re serious about better health care, as opposed to just running down the ACA, you can’t ignore institutional constraints.

Tuesday Links

[ 13 ] June 30, 2015 |

Supreme Court Upholds Constitutionality of Torture Killings

[ 114 ] June 29, 2015 |


Reasonable, moderate, thinking person’s conservative Sam Alito has an opinion today upholding Oklahoma’s execution procedures that is outrageously bad:

Even worse is Alito’s conclusion that death by torture does not violate the Eight Amendment unless defendants can identify a safer method, which Sotomayor correctly describes as “indefensible”. Even assuming for the sake of argument that the US constitution permits the death penalty in the abstract, it does not guarantee that states will be able to perform executions in every circumstance. If medical personnel and drug companies – making free choices – decline to participate in the machinery of death, this does not mean that the Eight Amendment ceases to apply. As Sotomayor explained:

“But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means.”

Her argument is unanswerable. Boiling people in oil or killing the on the rack would not suddenly stop being cruel and unusual punishment if they were the only methods available. It is true that the condemned prisoners in the cases considered by the court committed genuinely heinous crimes – one broke an infant’s back with his bare hands; another raped an killed an 11-month-old girl, as Alito was sure to mention in his opinion. Fortunately, even if Oklahoma could not execute these prisoners a remedy exists that is good enough for most American states and every other liberal democracy in the world: imprisonment.

It’s worth comparing the careful, devastating dissents written by Sotomayor and Kagan — both of which rank with Ginsburg’s evisceration of Shelby County — today to Scalia’s witless ranting last week. The fact that Sotomayor was described as unqualified by pundits who take Alito’s (identical to Sotomayor’s) credentials for granted and consider Scalia some kind of supergenius is about as clear as a racist and sexist subtext can get.

It’s not a coincidence that today was the day Ginsburg and Breyer announced their disinclination to continue to tinker with the machinery of death. If this is what the death penalty will be, holding the death penalty per se unconstitutional will become the default liberal position.

Is the Roberts Court Becoming Liberal (SPOILER: No.)

[ 156 ] June 29, 2015 |


Today’s atrocious death penalty and EPA opinions — more on those shortly — should end this meme quickly, but while last week was a good one we really shouldn’t overstate the extent to which last week was a liberal triumph:

On same-sex marriage, then, no qualification is necessary. It’s a flat-out liberal win, comparable to the great landmarks of the Warren Court. With respect to the two other big cases of the week, however, the questions are more complicated.

In King v. Burwell, the Supreme Court turned away the latest ad hoc legal challenge to the Affordable Care Act, with both Chief Justice Roberts and Justice Anthony Kennedy joining the court’s four Democratic nominees to produce a 6-3 majority. The court determined that tax credits would be available on health care exchanges established by the federal government, rejecting the bizarre argument that Congress went to the trouble of setting up a federal backstop that was designed to fail. It’s hard to overstate the importance of this opinion, which will save millions of people from being denied health insurance and thousands of people from unnecessary death.

But, in another sense, this case isn’t really much of a liberal “win.” The case was premised on bad statutory construction that was used to concoct an utterly preposterous theory of what the ACA meant. In a sense, the fact that conservatives got the court to take the case and three justices to buy the argument shows just how conservative the court is. Had liberal activists, say, gotten three votes at the Supreme Court for a theory that the Bush tax cuts violated the Equal Protection Clause, that really wouldn’t be a sign that conservative thought was ascendant at the Supreme Court.

More at the etc. I will add that you probably want to do a blood pressure test before reading Scalia’s EPA opinion if you’ve read the King dissent.

More on the Obergefell Dissents

[ 85 ] June 29, 2015 |


A few commenters suggested that I focused too much on the flaws in Kennedy’s historic opinion for the Court Friday and not enough on the infinitely worse dissents. And…they have a point. Part of this is that I never had any doubt about how the case would come out. I didn’t bother to point out Roberts’s endorsement of stop-hitting-yourself theory because the outcome of the case was much less certain and as long as he arrived at that outcome how he did it was far less important (and, in addition, apart from that lapse the opinion was a home run.) It was easier to quibble with Kennedy because I knew he’d do the right thing in his vote, which isn’t entirely fair. Certainly, some fuzziness and rhetorical overreaching seem relatively trivial when compared with Scalia’s SCORCHING HOT TAKES.

Fortunately, many smart people have produced excellent commentary on the bankrupt dissents. Judge Posner:

Related to the preceding point, the chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.

Justice Samuel Alito’s dissent, to which I turn briefly, ascribes to the states that want to forbid same-sex marriage the desire “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.” That can’t be right. States that forbid same-sex marriage do not do so in an effort to encourage gays and lesbians to marry people of the opposite sex and thereby procreate. The nation is not suffering from a shortage of children. Sterile people are not forbidden to marry, though by definition they do not procreate. There is no greater reason to forbid gay marriage, which is actually good for children by making the children adopted by gay couples (and there are a great many such children), better off emotionally and fiscally.

Alito says that states that want to prohibit same-sex marriage “worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.” This doesn’t make sense. Why would straight people marry less and procreate less just because gay people also marry and raise adopted children, who, but for adoption, would languish in foster homes?

He adds: “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” But why should the people who control a state have the right to deny the right of some of their fellow citizens to marry, without a reason? Alito has no answer.

Michael Dorf:

None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage.

Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marriage cases because those cases did not involve the definition of marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?

Chief Justice John Roberts, in the principal dissent, sets forth the most elaborate argument, but fundamentally he makes three points: (1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. Beyond that, his dissent repeatedly compares the ruling to Lochner v. New York, citing the case a whopping sixteen times.

Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights, indeed, against all judicial decisions that draw inferences from vague language contained in enumerated rights as well. The other dissents do not fare better.


Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.

Forget about the bag. Justice Scalia should not appear in public except in a full burka.

Both are worth reading in their entirety.

Grace, Amazing

[ 253 ] June 28, 2015 |

I’m a tough sell when it comes to both the rhetoric of politicians and religious rhetoric, but Obama’s eulogy on Friday really was quite extraordinary:

Transcript here, although I agree with Fallows that it demands to be seen. Full video can be found here.

Removing the flag from this state’s capitol would not be an act of political correctness; it would not be an insult to the valor of Confederate soldiers. It would simply be an acknowledgment that the cause for which they fought — the cause of slavery — was wrong — (applause) — the imposition of Jim Crow after the Civil War, the resistance to civil rights for all people was wrong. (Applause.) It would be one step in an honest accounting of America’s history; a modest but meaningful balm for so many unhealed wounds. It would be an expression of the amazing changes that have transformed this state and this country for the better, because of the work of so many people of goodwill, people of all races striving to form a more perfect union. By taking down that flag, we express God’s grace. (Applause.)

But I don’t think God wants us to stop there. (Applause.) For too long, we’ve been blind to the way past injustices continue to shape the present. Perhaps we see that now. Perhaps this tragedy causes us to ask some tough questions about how we can permit so many of our children to languish in poverty, or attend dilapidated schools, or grow up without prospects for a job or for a career. (Applause.)


None of us can or should expect a transformation in race relations overnight. Every time something like this happens, somebody says we have to have a conversation about race. We talk a lot about race. There’s no shortcut. And we don’t need more talk. (Applause.) None of us should believe that a handful of gun safety measures will prevent every tragedy. It will not. People of goodwill will continue to debate the merits of various policies, as our democracy requires — this is a big, raucous place, America is. And there are good people on both sides of these debates. Whatever solutions we find will necessarily be incomplete.

But it would be a betrayal of everything Reverend Pinckney stood for, I believe, if we allowed ourselves to slip into a comfortable silence again.

Why Are SSM Rights Doing Better Than Reproductive Rights

[ 223 ] June 28, 2015 |

Chris Neal/KANSAN

I don’t think Erik and I actually disagree, but since I’ve seen a variant of this argument going around I think it’s worth clarifying an important point. As of now, the right to same-sex marriage is secure in all 50 states; reproductive rights are not, and the trend in some states is getting worse. This might, on the surface, seem to be a reflection on the strategies applied by activists.

But it’s really not. Here’s the thing: in the states most aggressively restricting reproductive rights, there was zero chance Republican-controlled statehouses were going to legalize same-sex marriage rights. And despite the gains that LBGT activists have made in changing public opinion, these states aren’t about to provide civil rights protections to gays and lesbians either. Here are the reasons why same-sex marriage is more secure in red states than reproductive rights:

  • Anthony Kennedy is much more sympathetic to gay and lesbian rights than to reproductive rights
  • That’s it.

This doesn’t mean, of course, that supporters for reproductive freedom shouldn’t fight for everything they can. But the brutal truth is that until there’s a median vote of the Supreme Court nominated by a Democratic president things are going to continue to get worse no matter what activists do.

On Scalia’s Showoff Dissents

[ 214 ] June 27, 2015 |


Longtime readers won’t be surprised, but as far as the “blistering dissents” often praised even by liberals I’m pretty much in agreement with this:

This is an odd sense of wit. Scalia is not just wrong. He is wrong in the same way that the thousands of anonymous conservative Twitter accounts with default egg avatars swarming liberal politicians and pundits are. He writes his dissents using the same jokes and the same arguments. If Scalia’s ostensibly witty writing displays a keen legal mind, then we are witnessing the blossoming of a new age of legal scholarship in Hillary Clinton’s at-replies. Because Antonin Scalia is, essentially, a Twitter egg.


In reality, though, there was nothing creative, new, or even sick about Scalia’s burn. The SCOTUScare joke is rather dumb, very obvious, and has been kicking around the right-wing #TCOT Twitter bunker since at least the time of the Supreme Court’s first Affordable Care Act decision in 2012. Here, for instance, is Wall Street Journal Editorial page writer David Feith using the word in a tweet from the day the 2012 case was decided…

…Despite Feith’s conservative bona fides—he’s the son of Iraq War era Under Secretary of Defense and “dumbest fucking guy on the planet” Douglas Feith—the tweet earned no retweets, no favorites, and no replies. And with good reason (sorry Dave!). Scalia’s SCOTUScare crack, like many of his other King one-liners from “jiggery-pokery” to “pure applesauce,” is straight from the dregs of modern American political commentary, not even worthy of the low standards of the National Review. If an angry Twitter egg tweeted “we should start calling it scotuscare u libtard” at a journalist, the best he could hope for would be an ironic retweet. Scalia’s dissent might as well have been a Benghazi acrostic.

For Scalia, replacing rigorous legal analysis with dumb jokes and angry tirades is nothing new. For years, he has been writing dissents that sound like something from the POLITCO comments section, or at best a Glenn Beck book. Take his dissent to the Supreme Court’s 2003 decision in Lawrence v. Texas holding that laws criminalizing same sex intercourse are unconstitutional. Scalia’s response to a detailed majority opinion tracing the history of the rights of gay persons was a screed that read more like your drunk uncle’s Thanksgiving rant than cogent legal analysis. Scalia bemoaned a decision that was “the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He goes on to hit virtually every tired homophobic talking point, from fearmongering over “[gay] teachers in their children’s schools” to “let me be clear that I have nothing against homosexuals.” [This last one is even worse in context — “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”–ed.] This is by-the-numbers conservative punditry that was played out even twelve years ago.

Obergefell is a particularly good place to start, because all of the Court’s most conservative justices filed dissents and Scalia’s was far and away the least substantive. Its 9 pages essentially boil down to one simple argument: it’s wrong for an unrepresentative committee of nine lawyers to make policy choices not clearly compelled by the Constitution. Given the actually existing practice of judicial review in the United States this argument is not merely trite but useless, offered in bad faith, and from someone who joined Shelby County (after embarrassing himself at the oral argument) is intolerable.

Aside from the feeble judicial restraint argument, Scalia devotes space to cruelly mocking Kennedy’s literary style. Now, I agree that Kennedy’s opinion was hardly a model of judicial craft, and I could have done without some of the Hallmark philosophizing of its first pages. Having said that, Scalia responding to these passages with a bad 50s take-my-wife-please comedy routine is self-refuting. The most over-the-top attacks on Kennedy also collapse on themselves:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.

First of all, the quote hardly justifies the vitriol — a little pompous, but I’ve seen worse, and the underlying point is coherent and accurate. But the “hide my head in a bag” punchline can’t help but remind us of another Kennedy-authored opinion Scalia joined and has belligerently defended: a little thing called Bush v. Gore. I think we’ve established beyond doubt that Scalia is incapable of embarrassment. And say this for Kennedy: in his sometimes awkward and pretentious way, he was taking the text and purpose of Section 1 of the Fourteenth Amendment seriously, making the case against invidious discrimination and the arbitrary denail of fundamental rights. Sometimes, as in the concluding paragraph, it even works well enough:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Not exactly how I would have written it, but I’ll take it over “Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?” any day.

And then there’s Scalia’s assertions that “the stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis” and “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” This is a little much from someone who the previous day issued a dissent larded with a bunch of anachronistic euphemisms for bullshit in a desperate attempt to mask the fact that the argument he was making was an incoherent mess with the end of advancing a nakedly partisan campaign to take access to health care away from millions of people. (In a rare-moment of self-awareness, Scalia attempts to pre-empt this obvious response: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression.” How convenient!) Roberts could have devoted multiple paragraphs to Scalia setting aside his own principles of statutory interpretation to produce a nonsensical reading of a law that dovetails with his own policy preferences, but he just let the multiple cites from Scalia opinions speak for themselves. Sometimes, when rhetorically twisting the knife, less is more.

Toobin: “In dissent, Scalia cranked up his increasingly tired act as the Court’s sound-bite generator.” Now that’s good writing.

A Footnote I Can Agree With

[ 85 ] June 26, 2015 |


While most of Thomas’s dissent today is deeply misguided, I do think he makes an excellent point in Footnote 8:

The majority also suggests that marriage confers “nobility” on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

I have found marriage happy and congenial myself. But the idea that my choice somehow makes me better than anyone else is indeed self-aggrandizing nonsense.

…Rebecca Traister has related thoughts.

On Obergefell

[ 91 ] June 26, 2015 |

Anthony Kennedy

Obviously, I’m happy about the judgment. I would forgive Kennedy his bad-undergraduate-essay prose (all-too-representative sample: “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage”) if he would tell us what the law is:

While Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas are wrong about same-sex marriage, they weren’t wrong about Kennedy’s majority opinion, which leaves a lot to be desired. All of Kennedy’s same-sex marriage opinions have all contained passages whose legal reach exceeds their rhetorical grasp, and even people sympathetic to Kennedy’s conclusions will wince in recognition when reading Scalia’s snarky lines about Kennedy’s “straining-to-be-memorable passages” and “inspirational pop-philosophy.”

Much worse that its aesthetic problems, however, is where Kennedy leaves equal protection law as it pertains to LGBT rights more generally. As with Kennedy’s DOMA opinion – about which I wrote that he “flirt[ed] awkwardly with federalism, due process and equal protection rationales without ever quite summoning up the courage to invite one to the prom” – he maddeningly continued in this opinion to vaguely invoke both equal protection and due process theories without clarifying the applicable standard when it comes to LGBT rights more generally. “Each concept – liberty and equal protection – leads to a stronger understanding of the other,” asserted Kennedy.

Nonetheless, he ended up in the right place, and that’s what’s most important. You may be surprised to learn that I find the calls for judicial restraint coming from the persons responsible for Shelby County hard to stomach (and Scalia’s standup routine needs a lot of work.) And finally, let us recall that “Borking” was great and there should be more of it.

“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

[ 425 ] June 26, 2015 |

Hey, when you’re wrong 66% of the time, you’re completely right 33% of the time!

More on the historic decision soon.

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