Clarence Thomas’s Silence — An Interesting Trivia Question, Nothing More
As soon as Jeff Toobin’s argument about Clarence Thomas people on various social media anticipated my response, and I can’t disappoint.
Author Page for Scott Lemieux
Today In Sam Alito v. The Fourth Amendment
Yesterday, the Supreme Court ruled that despite a 2006 holding that one person could not consent to a search while another resident refused consent, the police could conduct a warrantless search with the consent of one resident after another that refused consent had been removed from the property. To justify this result, perennial enemy of Amendments 4-8 of the Bill of Rights Samuel Alito decided to use a favorite technique of his colleague Antonin Scalia, the bad slippery slope argument:
The general rule, he said, is that any occupant’s consent is sufficient. The 2006 decision, he added, was limited to objections from people who were physically present. Expanding that exception after the objecting occupants were gone, even at the hands of the police themselves, he wrote, “would raise a plethora of problems.”
Among them, Justice Alito wrote, was how long the objection had to be respected. “A week?” he asked. “A month? A year? Ten years?”
Yes, this is a serious problem — if one resident refuses a search, then the police are just out of luck permanently. If only the framers of the Fourth Amendment had anticipated this issue and provided the state with some other mechanism that would permit a justified search without the consent of the resident of a dwelling!
In dissent, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan [and not Breyer, natch -- ed.], wrote that “the police could readily have obtained a warrant to search the shared residence.”
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate,” Justice Ginsburg wrote. “Suppressing the warrant requirement, the court shrinks to petite size our holding in Georgia v. Randolph.”
Check. Mate. And it’s worth noting as well Ginsbirg’s point that “[i]f a person’s health and safety are threatened by a domestic abuser, exigent circumstances would justify immediate removal of the abuser from the premises, as happened here.” And once there is no longer an exigent circumstance, if a resident doesn’t consent to a search, then the Fourth Amendment requires the police to obtain a warrant.
Lederman on the Specious “Religious Freedom” Arguments Against the ACA
As with Shelby County, the claim that the insurance requirements in the ACA violate the Religious Freedom Restoration Act and/or the First Amendment contains multitudes of terrible arguments. I’ve focused on a couple — the obvious lack of a “substantial burden” on religious belief and the inapplicability of RFRA to secular corporations. But those are far from the only problems, and Marty Lederman has done some brilliant work enumerating them. In his contribution to the SOTUSBLOG forum, he makes two additional points. First, “[t]he plaintiffs in these cases are seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.” And, second — and I plead guilty to using this erroneous term myself — the “contraception mandate” doesn’t actually exist:
Yes, the law does impose a legal requirement – many of them, in fact – on all health insurance plans. Nevertheless, contrary to common wisdom and popular rhetoric, there is no “employer mandate” to offer employee health plans, no matter how large the employer. Employers, both large and small, may lawfully decline to offer such plans. Indeed, the direct effect of doing so ordinarily would be a cost savings to the employer, which is why many employers will choose this option. And in such a case the employees will hardly be out of luck: They will then be able to purchase affordable health insurance on an exchange – with generous government subsidies, if necessary – and the insurance plans they purchase will meet all the applicable federal standards, including contraception coverage.
To be sure, many other employers will choose to continue offering employee plans, for a complex array of reasons, most of which are not a function of federal law. And I have argued (see my Balkinization Hobby Lobby posts III, III-A, III-B, and IX) that the Hobby Lobby and Conestoga Wood employers, in particular, have failed to plead facts sufficient to demonstrate that federal law imposes substantial pressure on them to decline that option – a pleading inadequacy that may be fatal to their RFRA claims. But whether I am right about that or not, it is still the case that if an employer does not wish to include all the incidents of insurance that federal law requires be included in all plans, its option is not nearly as draconian as having to reduce its workforce to fewer than fifty employees (a response that would not have the desired effect, in any event, because small employer plans must also include contraception coverage) or face bankrupting fines: It has the much less draconian legal option of increasing its employees’ wages in lieu of such insurance coverage . . . in which case the employees will be able to purchase an insurance plan that includes the same federally mandated minimum protections to which everyone else is entitled.
As with so many conservertarian arguments, this is an argument based on “freedom” that would result in a net diminution of freedom. The employers bringing the suits want the tax subsidy to compensate workers in health care rather than wages, but rather than meet the concomitant legal requirements they want to impose their religious beliefs on employees who don’t share them by denying them a benefit to which they’re legally entitled and giving them nothing in return. If they choose to, the can avoid the trivial burden on religious practice by simply compensating employees in wages instead.
When We Were Colorblind
Some images from the Georgia of Clarence Thomas’s youth, where race simply wasn’t a major issue.
As Henry Billings Brown wrote in a classic of conservative jurisprudence, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” As Justice Stevens notes, this version of history remains influential among conservatives today.
The National Review’s Handy Compendium of Terrible Arguments Against Civil Rights Laws
Erik has already gotten in a few whacks at Kevin Williamson’s iteration of the “supporting civil rights is the real intolerance!” argument that has been recycled by umpteen generations of conservative hacks. Still, Williamson puts so many bad arguments against civil rights in one place I thought it was worth addressing some of them individually:
- “It is a mark of the moral illiteracy of our times that it even has to be argued that suffering the indignity of having a baker refuse to service your wedding because he holds ideas about marriage that were shared by…Barack Obama…until the day before yesterday, may be painful, even humiliating, but it is an experience that is not very much like being a member of a captive race that was held in slavery for centuries and then systematically subjugated for another century.” I’ll come back to the feeble Obama gotcha, but I will note that using past horrible discrimination (that conservatives at the National Review contemporaneously defended) as a reason not to do anything about current discrimination is a perennial of reactionary misdirection. (Cf. also “no worker can organize unless they can prove that no other worker somewhere is worse off.”) Let’s concede that gays and lesbians occupy a less oppressed position than African-Americans in 1950s Alabama. The latter isn’t the standard required for discrimination to be worthy of state action, and we need not ignore similarities between cases than are not similar in every respect.
- “having a baker…” Also note the strategic use of hypothetical anecdote — the whether the subject is race or sexual orientation, the entity being theoretically oppressed by civil rights legislation is always a mom-and-pop business (“won’t someone think of poor Pappy!“), although tiny entities where business and personal are fused are exempt from federal civil rights law and virtually always exempt from state civil rights law. (Yes, some local ordinances do apply to all businesses, but of all the busybody regulations passed by local governments these aren’t the ones I’d be most inclined to complain about.) The fact that arguments like Williamson’s never focus on the more typical cases is tells you what you need to know.
- “Imagine you are the gay owner of a restaurant in Chelsea, a member in good standing of the National Gay and Lesbian Chamber of Commerce, rainbow flag flying out front — and the cretins from the Westboro Baptist Church decide that they want to rent your party room for their annual “God Hates Fags” Sunday brunch. Shouldn’t you have the right to refuse? There is in this sad world such a thing as a Ku Klux Klan wedding — should the management of Harlem’s famous Sylvia’s Restaurant be prosecuted under civil-rights law if the establishment should decline to cater such a wedding?” I concede the point — “hateful crackpot” and “white supremacist” shouldn’t be protected categories under civil rights law.
- “Barry Goldwater, who set the great precedent for Arizonans’ shocking liberal sensibilities, had been an instrumental figure in the Phoenix desegregation effort but opposed the Civil Rights Act of 1964…” First of all, you have to love the “shocking liberal sensibilities” bit; it’s like Williamson is trying to cram every winger trope into one short piece. It’s also not surprising that Barry Goldwater makes an appearance, since he’s the one prominent conservative who opposed the CRA 1) without being either a public or private racist and 2) while actually supporting desegregation at the state and local level. People with this combination of preferences were, however, rarer than pieces of the True Cross for good reason: white supremacists understood the effects of federal non-intevention much better than Goldwater did.
- “The concept of “public accommodation” has been so inflated that as a practical matter no private sphere exists outside the home when the question of discrimination arises.” Strange, though, that Williamson can’t come up with even a random anecdote of a private club being forced to comply with federal or state civil rights laws. Maybe he’s too busy looking for a family farm lost because of the estate tax.
- “But religious traditionalists who do not wish to be involved in gay nuptials are not Bull Connor, and nobody said that hewing to a heterosexual model of marriage was the equivalent of Jim Crow when Barack Obama was the one making that case.” Well, first of all, you already used both of these arguments. To address the “Barack Obama nominally opposed same-sex marriage in 2008 nyuk-nyuk” one, aside from the general lameness of the argument it’s wrong even on its own terms. Personal opposition to same-sex marriage is morally wrong but it’s not comparable to Jim Crow. What is comparable to Jim Crow are laws explicitly permitting public accommodations and in some cases state officials to discriminate against same-sex couples. If you had evidence of Barack Obama supporting those kind of laws…well, you still wouldn’t actually have anything, because the correct responses would be “Barack Obama is wrong” and “Barack Obama, in the capacity of a state official or employer or manager of a public accommodation, should not be permitted to discriminate against gays and lesbians.” But it’s instructive that even when he nominally opposed same-sex marriage he didn’t support them. Williamson might like this argument so much he uses it twice, but it’s one of the worst poetic justice as fairness arguments ever.
- “There is, after all, an almost infinite gradation of moral distinction between the views of well-intentioned people who do not wish to cater a gay wedding because of religious considerations and the odious, malicious position of Westboro Baptist et al.” But this parsing of motivations misses the point of what civil rights laws are for and what they do. Again, when running a secular public accommodation or acting as an employer, people cannot discriminate for whatever reason. As private individuals, people are free to have hateful views along any point on the continuum from Fred Phelps to the National Review‘s more genteel version. In both cases, the distinctions Williamson believes the law can’t make aren’t actually relevant.
I give him credit, though — that’s an impressive number of terrible arguments for one column.
The Arkansas Medicaid Outrage
While not the optimal means of Medicaid expansion, the compromise accepted by Arkansas was a major advance for health care access. This means that Republicans in the state are refusing to go ahead with it. Which makes sense, since they’re opposed in principle to providing decent health care to the working poor.
And related to yesterday’s post, once again let’s thank John Roberts for yet another arbitrary, extratextual limitation on federal power. The arguments for the spending power limitations in Sebelius are perhaps not as terrible as Shelby County — what is? — but it’s close. Put it this way — if Congress had created the ACA’s Medicaid program from scratch, it would be plainly constitutional. If it had simply eliminated the old Medicaid entirely, that would be plainly constitutional. So how can making states an all-or-nothing offer including the Medicaid expansion be unconstitutional? It can’t — the argument collapses on itself.
John Roberts, Shelby County, and stare circulus jerkus
I understand that Amel Ahmed is ultimately on the right side of the voting rights issue, but there is no context in which the phrase “John Roberts was right” should appear in a discussion of Shelby County, unless the question is whether his clerks spelled his name right.
To make one additional point about the risible “equal sovereignty of the states” doctrine Roberts resurrected from the antebellum slave power, it’s a classic example of conservative hacks citing their own bare assertions in dicta as if they settled legal disputes. In Shelby County, Roberts gets very pissy about the dissent’s refusal to take his exhumation of an (uncited) Roger Taney with sufficient seriousness: “the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance.” Ah, I get it — there wasn’t really a defense of the “equal sovereignty” doctrine in Shelby County because he already defended in a Northwest Austin dictum. So here’s his defense of the “equal sovereignty of the states” theory from Northwest Austin, in its entirety:
The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.
So let’s see. We have a bare assertion that the doctrine Roberts just made up reflects a “historic tradition.” We have two land rights cases that deal with state boundaries prior to their admission to the union (one from prior to the civil war), and an 1969 case dealing with the legality of secession (Roberts’s “see also” is a nice giveaway that the precedent is wholly irrelevant.) And finally, we have South Carolina v. Katzenbach, which has the advantage of being relevant to this case but the disadvantage of pointing out that the “doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Note what Roberts leaves out of the relevant quote to make it less damning; if nothing else, this opinion demonstrates a consummate mastery of bullshit.) None of the other cited precedents contradicts Katzenbach‘s holding. In other words, Roberts has nothing – no constitutional text, no relevant precedent, no constitutional tradition, not even an actual argument. Shelby County relies on citing this nothing as the controlling precedent. As I quote Richard Posner as saying in the linked piece, the decision “rests on air.”
There’s an additional scam being pulled here. Roberts tries to get some authority for his worthless Northwest Austin arguments by noting that the opinion “joined by two of today’s dissenters,” suggesting that it reflects a consensus about basic principles. But this is the legal equivalent of pretending to believe that the position-taking of public officials must represent nothing but sincere, unfettered policy preferences. (Some liberals have the same problem with Sebelius, believing that Stephen Breyer voting for the most liberal spending power position that could command five votes means that the Supreme Court justice with perhaps the most expansive vision of federal power in history is suddenly going to start voting with reactionaries to randomly rule exercises of the spending power unconstitutional. It’s theoretically possible, just as it’s theoretically possible that Roberts is going to start frequently acting as the swing vote with the four liberal justices, but it’s really not how to bet.) But we all know this is silly. Ginsburg and Breyer joined the Northwest Austin majority because the only alternative that could command a majority was…Shelby County. In retrospect, as RBG acknowledges, this was probably a mistake, but it’s remarkably disingenuous to suggest that every member of the Northwest Austin majority subscribed to every dictum in the opinion. In fairness, though, it’s not as if Roberts had a better to argument to make, and if my opinion had been shredded as mercilessly as Ginburg’s dissent did to Shelby County, I wouldn’t be in a great mood either.
Anti-ACA Random Anecdote FAIL
With legislation as complex and far-reaching as the ACA, it would be difficult for it not to have bad effects for someone, even though it’s a major positive on net. What’s remarkable, as Michael Hiltzik and Kevin Drum have pointed out, is that the anecdotes about alleged horror stories carefully cherrypicked by Republicans have all turned out to be frauds. (Indeed, in several cases they have made Republicans look bad, as they seem to have convinced some of their followers to massively overpay rather than using Barack HUSSEIN Obama’s evil website.) Krugman notes that we’ve been down this road before:
Remember the “death tax”? The estate tax is quite literally a millionaire’s tax — a tax that affects only a tiny minority of the population, and is mostly paid by a handful of very wealthy heirs. Nonetheless, right-wingers have successfully convinced many voters that the tax is a cruel burden on ordinary Americans — that all across the nation small businesses and family farms are being broken up to pay crushing estate tax liabilities.
You might think that such heart-wrenching cases are actually quite rare, but you’d be wrong: they aren’t rare; they’re nonexistent. In particular, nobody has ever come up with a real modern example of a family farm sold to meet estate taxes. The whole “death tax” campaign has rested on eliciting human sympathy for purely imaginary victims.
And now they’re trying a similar campaign against health reform.
“Purely imaginary victims” — not just a great name for a band, a fixture of Republican propaganda.
End the Blue Slip
Pema Levy notes that despite the abolition of the filibuster on most judicial appointments gridlock persists:
This brings us back to Burr and May-Parker. The White House’s efforts to fill the bench are being stymied by the “blue slip” process, a Senate Judiciary Committee tradition that today gives senators considerable power over judicial nominees in their home states. When a nominee is referred to the committee, the two senators from that state are notified on a blue slip of paper. To signify their support for the nominee, they return the slip.
It’s up to the chair of the committee how to deal with a blue slip that is not returned. The current chair, Patrick Leahy of Vermont, has upheld the tradition strictly, allowing Republican senators essentially to veto the president’s picks, as Burr has done by not returning the blue slip. It’s no coincidence that most of the vacancies without nominees are in states with at least one Republican senator.
Leahy, an institutionalist who believes in rights for senators in the minority, has said he sees no reason to change his approach to blue slips unless he believes the tradition is being abused.
It’s worth noting at this point that the blue slip isn’t really a “rule.” Eliminating the filibuster is difficult because it involves obtaining a consensus among senators who benefit individually from the practice. But the blue slip can be gone tomorrow if Leahy just decided to stop enforcing it, and there’s no good reason to keep it at this late date.
Chained CPI and Presidential Position-Taking
Chait on the removal of Social Security cuts from Obama’s budget:
In reality, the fundamentals of the situation have not changed at all. Last year, Obama was willing to adopt C-CPI in return for concessions Republicans would never, ever make. This year, Obama is still willing to adopt C-CPI in return for concessions Republicans would never, ever make. Putting the compromise in his budget was merely Obama’s way of locating the blame for the reality that Republicans in Congress will never, ever, ever strike a fiscal deal with him. The disappointed deficit scolds sitting just to Obama’s right, and the joyous progressives just to his left, are committing the same fallacy. They are mistaking a step premised on an impossibility for a semblance of reality.
This is largely true as far as it goes. There was no chance of a Chained CPI-for-upper-class-tax hikes deal passing last year or this year, and to infer from the offer that Obama was determined as an end in itself to cut Social Security and would find some way to do it was really, really, stupid.* Does this mean that liberals have no reason to be happy that Chained CPI was removed from this year’s budget? I wouldn’t say that. The only useful thing congressional Republicans have to contribute to society is that they make “grand bargains” impossible, so in terms of the policies that will be enacted the precise content of Obama’s proposals isn’t important. But presidential position-taking might have some symbolic effect, and so if nothing is going to pass you might as well not have crappy policy proposals in your budget (even if they can’t be enacted.) To whatever marginal extent the politics matter, better that the Democratic brand be “we will protect Social Security” than “we care about the deficit.”
*You may wonder about how the guy who embarrassingly “bet” that Obama would get his wish of Social Security cuts enacted by early this year would react. With a gracious concession of error! Just kidding. Leaving aside the particularly puerile ad hominems:
.@LemieuxLGM And another thing. It doesn't take much "knowledge" to know Obama supports chained CPI on the "merits", when it's in his budget
— Vincent Vecchione (@curiouscliche) February 22, 2014
Sadly, as anyone who reads liberal blog comments knows, there really are people who believe, or at least pretend to believe, that any position taken by an public official represents a sincere position, and elementary concepts such as “tradeoffs,” “bluffing,” and “strategic misdirection” represent immensely complicated eleventy-billion dimensional chess that cannot possibly reflect reality. Apparently, junior high civics textbooks just aren’t what they used to be. To add to the comedy, in my experience there’s a roughly 100% overlap between people who believe that 1)Obama inherently supports Social Security cuts and/or that Orrin Hatch and Bob Dole sincerely favored John Chaffee’s Potemkin health care proposal and 2)Obama, despite his public position in favor of the public option, secretly prevented staunch liberals like Evan Bayh, Ben Nelson, and Max Baucus from voting for it. The pretense that strategy doesn’t exist in politics would appear to be highly selective.
Better Luck Next (Four) Year(s)!
Rough loss for the U.S., but there’s reason for consolation:
America has almost as many goals against Canada as Latvia and Norway did.
— mc79hockey (@mc79hockey) February 21, 2014
Seriously, even though Canada outplayed the U.S. by a much greater margin than the score suggests, one elimination game doesn’t really prove anything. Commenter rw970 was absolutely right in the first thread, though, that the biggest roster error for the U.S. was excluding Yandle rather than Ryan. The Americans have better goaltending than Canada and their forwards are at least in the same ballpark, but the Canadian edge on the blueline is huge, particularly in terms of mobility. Yandle wouldn’t have equalized this, of course, but the U.S. really could have used him.
Finally, I absolutely owe an apology to Bouwmeester — I was happy to see him play so well. On Kunitz, though, despite the sales job by the color guys I’m remaining stubborn. He didn’t have a great game; Crosby and Bergeron had great games, setting up countless chances he kept squandering. (And not because he was getting robbed by Quick — he somehow managed to parlay umpteen chances into one shot on net.) Yes, he’s a good forechecker and two-way forward — he’s a quality NHL player — but to get first-line minutes on the Olympic team you need better offensive skills than he has. He’s the single biggest reason why Canada hasn’t had the magins on the scoreboard that their possession advantage should be producing, and it could still burn them.
Should be an excellent game — I never thought I’d be happy to get up at 7 AM on a Sunday…
