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ACA-Like Reforms In Massachusetts Saved Thousands of Lives

[ 59 ] May 5, 2014 |

See Adrianna McIntyre and Jon Cohn.

You might think that enacting similar reforms, only with an additional huge expansion of Medicaid, would count as the most important legislative victory for progressives in decades. But remember, when Mitt Romney signed a bill passed by massive supermajorities of Massachusetts Democrats that overrode several of the governor’s vetoes unilaterally enacted it, he infected the whole concept with Republican cooties. Better millions of people die until the Magic Ponies And Ice Cream Castles In The Air Act of Never can be passed than be a sellout, man.

Cecily McMillan

[ 137 ] May 5, 2014 |

What seems like an appalling decision to prosecute has, unfortunately, resulted in a guilty verdict. More here.

On Gary Becker

[ 23 ] May 5, 2014 |

Kathleen Geier has a terrific account of the strengths and weaknesses of the late economist.

Justice Who Joined Shelby County Has No Idea What Shelby County‘s Holding Is

[ 83 ] May 5, 2014 |

In the aftermath of the most disgraceful opinion handed down so far by the Roberts Court, Paul observed that “[t]he majority opinion in Shelby County v. Holder is the worst SCOTUS opinion I’ve ever read, considered simply as an exercise in formal legal argument. And I’ve read Bush v. Gore.”  But if you don’t believe him, believe the same point being inadvertently being made by Antonin Scalia:

That last line came while Scalia was answering written, prescreened anonymous questions. The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning. Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question. I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.

It’s not surprising that Scalia fumbled the question, since Roberts’s majority opinion never gets around to explaining what standard of review the Court was applying, which would be indefensible in any context and is abominable when the Court is gutting the most important civil rights legislation passed by Congress in the 20th century. Nonetheless, Scalia’s answer has to be wrong, simply because the idea that Section 4 of the Voting Rights Act fails rational basis review is absurd. Congress did extensive investigations, and it included a bailout provision permitting states to show that they did not require federal supervision. This more than meets any rational basis standard. The only way to defend the outcome of Shelby County is if the Court is applying some kind of heightened scrutiny. But the Court has no basis for applying heightened scrutiny, because there is no constitutional requirement that Congress treat states equally. Roberts, between two opinions, has his bare assertions but no relevant text or precedent to cite in defense of this doctrine, and the only relevant precedent went uncited for obvious reasons.

The failure of the Roberts Court to even explain what it was doing is terrible in itself, and terrible going forward because the Court provided no meaningful guidance to Congress or lower courts. Scalia’s inability to coherently explain what the Court was doing is comic in a way, but when you consider the implications it’s the farthest thing from funny.

On a related note, why Scalia’s humiliating botch in last week’s EPA decision matters.

Clearly, This Is My Careerism Talking

[ 567 ] May 4, 2014 |

There are two rather obvious flaws Freddie deBoer’s critique of Elias Isquith. Here’s his first argument:

The dominance of personal branding and cultural signalling over political theory means that liberal attitudes change very rapidly and then congeal into a consensus that is supposedly so obviously correct that it does not need defending. In the past year, liberalism as an elite social phenomenon has abandoned first rights of the accused and second the right to free expression. The Jameis Winston and Woody Allen sexual assault cases saw the rise of resistance to any discussion whatsoever of due process and rights of the accused…

Omitted, of course, it a cite of a single liberal asserting that Woody Allen or Jameis Winston should be denied their full due process rights. The reason for this is that, however ambitious they might be, such liberals don’t exist. Liberals certainly have noted that the investigation into the charges against Winston was a disgraceful botch saturated with sexism and star-athlete privilege. But needless to say arguing that credible sexual assault accusations should be taken seriously by the authorities does not reflect “resistance to any discussion whatsoever of due process and rights of the accused.” Similarly, there are certainly liberals who believe that Dylan Farrow is more likely to be telling the truth than not. This position might be right, or it might be wrong. But either way, it doesn’t reflect any hostility to “due process and rights of the accused.” Private individuals making judgments about whether people are factually guilty of particular offenses is neither here nor there in terms of their belief in due process rights. When Matt Taibbi says that Goldman Sachs violated the law, he’s not coming out against due process even if the Department of Justice doesn’t charge them. “O.J. Simpson should be tried again for murder” reflects hostility to due process and the rights of the accused. “O.J. Simpson almost certainly killed Nicole Brown Simpson and Ron Goldman” does not. deBoer’s position to the contrary is so obviously absurd I don’t believe that even he believes it.

The second argument is similarly problematic:

Similarly, the Brandon Eich situation, and now the Donald Sterling fiasco, have prompted this social cohort to change liberalism such that its traditional staunch defense of free speech rights has become instead an assumed disgust with those who talk about free speech rights at all.

Omitted here is the cite to any major liberal political theorist arguing that free speech means that private individuals have the right to retain positions of immense privilege irrespective of what they say. Again, the reason for this omission is that they don’t exist. To reiterate, I agree that properly conceived “free speech” means more than simply protection against government sanction. It is equally obvious the this right cannot be absolute — if I suddenly decided that Sam Alito was actually right about everything, the American Prospect would not

be violating my free speech rights if it told me my freelance services would no longer be required. Applying free speech rights to the workplace requires attention to context, consideration of power relations, and so on. (deBoer, conversely, reflects the kind of arid formalism, innocent of power relations, that liberals are often accused of believing, sometimes accurately, sometimes not.) When an ordinary worker gets fired solely for expressing political views contrary to the views of their boss, this is problematic because in large the consequences of the sanction are so devastating. Trying to evaluate when somebody losing their job over political speech requires an analysis of contextual factors — the power of the person in question, whether they can fairly be said to speak for an organization, whether they have supervisory authority, the effect of losing a given position on one’s practical life choices, etc. Since a bright-line rule that “nobody can ever be fired for expressing political views under any circumstances” is obviously unworkable, it requires judgment.

We’ve been though this, but it strikes me as obvious that Eich and especially Sterling are both entirely easy cases. With Eich, the puzzle has always been who should have done anything differently; there wasn’t even any organized pressure from liberals that wouldn’t have presented any real threat to “free speech” in the first place, and if a board of a non-profit doesn’t want someone who contributed to a disgraceful campaign to strip people of their civil rights and stands by it years later to head the organization, I don’t see what the problem is. With Sterling, applying any reasonable criteria leads immediately to the conclusion that the NBA is well within its rights and not threatening free speech. In particular, let’s consider the issue of sanctions. Leaving aside the fine that to Sterling is the equivalent to about a hundredth of a cent to an ordinary person, what is Sterling’s punishment, exactly? He might be forced…to sell his team. Which will hand him a billion+ dollar profit in spite of his consistent ineptitude because of the lavishly taxpayer-subsidized cartel he bought into. If everyone who got fired for expressing a political view left with a billion-dollar golden parachute, I’d be happy to take a fully libertarian position and allow bosses to do what they wilt. (While I might disagree on the merits, I also don’t think a CEO being forced out for their support for abortion rights is a “free speech” issue, and that goes triple if it ends up in a massive windfall for the deposed CEO.) Anyway, the “free speech” argument against the NBA being able to do anything about having a team built primarily in the labor of African-Americans being owned by a racist slumlord is specious in the extreme.

It’s possible that everyone disagrees with Freddie about this because they’re arguing in bad faith chasing the massive dumptrucks of money driven up to the home of every liberal freelancer. But he may also wish to consider that people may disagree with him because his definitions of liberalism in this case are both unique and transparently untenable.

…if I may be permitted to highlight excellent comments Edroso style again, this from ReflectedSky is very well-put:

This decision was capitalism in action. Very wealthy men wanted to protect their economic interests and corporate brands. They did something they were able to do via the bylaws of the entity that they all, including Sterling, had agreed to when they bought into the league. What this has to do with liberalism is beyond me, unless liberals are expected to demand that highly skilled black men who have been directly insulted and shamed by their employer — who they do not have the freedom to elect to not work for, for the most part, for years to come — are required to swallow their rage and instruct their fans (many of whom are African American or other POC) to give this man who has insulted all of them their money. What would be the freedom argument in favor of that?

That doesn’t even begin address the reality of Sterling as a slum lord, and his other, non-speech related racist behavior.

He had freedom of speech. He exercised it. The players and fans also have freedom of speech. They exercised it. The men who own the teams made a market-based decision allowed by their legal organizing documents, to which Sterling was a voluntary participant. So the point here is?

The Astonishing Return of Jim Brown

[ 110 ] May 3, 2014 |

The greatest running back in NFL history is, some allowance for hyperbole aside, making sense:

The NCAA is probably the most reprehensible organization God ever created,” the Hall of Fame running back said at a roundtable discussion on the NFL with Barry Sanders and Harry Carson on his right and host Larry King on his left. “Total exploitation. The kind of money they make, the kind of life they live, it’s embarrassing.”

The comment came in response to a question from a fan about why a player with a career-ending injury in college could not receive a payment to compensate for lost future income.

Brown said the NCAA is pretentious when it says it is “doing things for the young people.”

“I’m totally for change and total change,” Brown said. “And I think that body needs to be torn apart and put back together with everybody’s best interests in mind.”

That Will Teach You To Send Your Kid To An Uncivilized Country

[ 449 ] May 3, 2014 |

The letter of the law might give someone who should be clearly guilty of first degree murder a plausible defense:

Seventeen-year-old Diren Dede lost his life Sunday, while in Missoula, Montana on a high school exchange program from Germany. He was shot dead at the home of Markus Kaarma, after Kaarma set a trap for intruders by intentionally leaving the garage open and placing a purse in clear view.

After motion sensors detected someone in the garage, Kaarma shot Dede. And while he has since been charged with first degree murder, he is already invoking a Stand Your Ground-like defense.


While Stand Your Ground laws have proliferated since Florida passed its notorious law in 2005, the self-defense law that predated it was known as the Castle Doctrine, and authorized deadly force to protect one’s home. These laws derive from the old English common law concept that individuals have a right to defend their own home. But in many states, the Castle Doctrine has since been expanded both by statute and by court decisions to encompass more behavior, and courts in many states presume that fear was reasonable when if an individual is unlawfully entering one’s home.

Montana is no exception. An NRA-backed law passed in 2009 not only added a Stand Your Ground provision; it also expanded the Castle Doctrine that allows self-defense inside the home. While it once only authorized deadly force against an intruder who was acting in a “violent, riotous, or tumultuous manner,” the new law allows

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deadly force by an individual who “reasonably believes” the force is necessary to prevent assault or a forcible felony. The 2009 law also shifted the burden of proof and presumes that the shooter is innocent, according to Gary Marbut, a Montana gun lobbyist who has written model state laws.

Nobody could have expected that legalized vigilantism would have bad consequences.

Contemporary Democrats Shouldn’t Be Celebrating Old Hickory

[ 133 ] May 2, 2014 |

This won’t come as a surprise to longtime readers of this blog, but I heartily endorse this event or product:

Jacksonian populism cannot be separated from the genocidal policies of Andrew Jackson’s presidency. The Democratic Party has for too long financially profited from this despicable history. It’s time for the party’s leaders to heed their own advice to the NFL and stop profiting from the celebration of Jackson’s legacy.

Yup — it’s really well past time to rename the Jefferson-Jackson dinners.

Ongoing Notes on the Death of Parody

[ 42 ] May 2, 2014 |

Shorter Scott Atlas: “It’s appalling that the Affordable Care Act destroyed the universal, equitable health care system Americans enjoyed in 2009.”

I don’t know how much refutation is necessary for an argument this self-refuting, but Richard Mayhew does the job.

Gaming the System

[ 62 ] May 2, 2014 |

When actually existing Greens in New York didn’t want to follow the lead of their 2000 presidential candidate and act as a cat’s paw of the Republican Party, Republicans tried to do it for them:

What kind of shenanigans are going on now?” That’s what Darin Robbins, a Green Party member in Corning, New York, thought when he learned that a stranger had circulated a petition to place his name on the ballot for a House race.

Robbins had no plans to seek office, so he was shocked a couple of weeks ago when a Green Party secretary called to tell him that a petition had been filed in his name to run against GOP Rep. Tom Reed, the vulnerable first-term Republican who represents the 23rd congressional district in upstate New York.

The story gets stranger. A Republican operative was behind the attempt to put Robbins on the ballot. Aaron Andrew Keister, a notary public who has worked as a video tracker for the National Republican Congressional Committee (NRCC), the political committee dedicated to electing GOPers to the House, filed ballot access petitions—each bearing the signatures of about 75 registered voters—for Robbins and a second Green Party member. If Keister’s plan had succeeded, it could have helped Reed—the Northeast regional chairman of the NRCC—by putting on the ballot a progressive candidate who would likely draw votes away from his expected Democratic opponent, county legislator Martha Robertson. But Keister messed up: Because he filed the Robbins petition late and got the other Green Party member’s address wrong, neither Green will appear on the ballot for the June primary or the November general election, according to New York election officials.

Had Keister been more competent, it would have worked, too.

But They’re Hanging With NERDS!

[ 32 ] May 2, 2014 |

Advanced analytics — they’re what you should use if you’re interested in winning. But if you want to think that Calgary and Toronto represent better strategies for franchise-building than Chicago, go right ahead.

…junker in comments:

My least favorite argument: Commentators who simultaneously argue that stats are stupid and you’re a nerd while also using stats to claim they’re correct, e.g. “I don’t need any statistics to know a good hitter when I see one! He hit 50 home runs!”

Oh, yes. This is a specialty of Murray Chass: “why won’t you geeks get your nose out of your pocket protectors and forget the stats and watch the games and see that Felix Hernandez had fewer wins than some inferior pitchers and therefore shouldn’t win the Cy Young award. P.S. I am not a crackpot.”

RBG Speaks

[ 28 ] May 2, 2014 |

A fascinating interview with Ruth Bader Ginsburg by Jess Bravin (non-paywalled excerpts here.)

First, of particular interest to me, is that she seems to confirm that the Court ducking the issue in the Prop 2 case reflected at least in part the influence of her analysis of abortion rights litigation:

You saw the way the court disposed of the California case. The court generally moves in small steps rather than in one giant step. I think Thurgood Marshall’s litigation is a good example of that. For years he was not arguing that ‘separate but equal’ had to go [but rather attacking segregation incrementally]. Then, then when he had all the building blocks in place, he could bring the Brown litigation.

And, second, I’m glad that #freedahlialithwick has made it all the way to the Supreme Court:

WSJ: Do you read legal blogs?

GINSBURG: I don’t look at them but my son does and my law clerks do. Occasionally I look at because [senior editor] Emily Bazelon is a young woman I care for. There’s another woman at Slate who I think is very good, too. Dahlia Lithwick. She’s kind of–spicy.