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Category: General

Scalia v. Scalia

[ 64 ] March 10, 2015 |

Like many people, I was highly critical of Antonin Scalia’s assertion that Congress would not allow a majority of the country’s health insurance markets to collect, based on its complete alienation from even the most basic facts of American politics as it is actually practiced in 2015.  But don’t take it from me!  A Supreme Court justice implicitly made a similar critique in 2012:

Scalia gesture

Let’s consider how — how your approach, severing as little as possible, thereby increases the deference that we’re showing to Congress. It seems to me it puts Congress in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new Act. You got to get 60 votes to repeal it. So, the rest of the Act is going to be the law.

I presumably don’t need to tell you who asked that question.  The difference is that in 2012 Scalia had to argue that the mandate was so essential to the operation of the ACA that it couldn’t be severed from the rest of the statute, so it was in his ideological interest to tell the truth: namely, that if the mandate was struck down Congress was not going to be able to fix the statute, and without a fix the three-legged stool would collapse.  But now the truth is inconvenient, so Scalia has to “forget” that if the Court wrecks the exchanges Congress isn’t going to do anything about it.

And as you may remember, Scalia’s partisan hackery has another layer to it.  The argument Scalia made in 2012 also required him to effectively repudiate the expansive interpretation of the Necessary and Proper clause he had invoked to justify joining the majority in Raich.   Scalia had to simultaneously argue that the mandate was so essential to the operation of the statute that it couldn’t be severed if it was found unconstitutional, and yet so inessential that it was not authorized under McCulloch.  Scalia’s ad hoc war on the ACA is causing him to ignore principles he had long advocated, and his vote to inevitable vote reverse King v. Burwell will also contradict things he has long argued about statutory construction and interpretive law.

None of this is terribly unusual; I hope we’re all legal realists here.  But it makes Scalia’s relentless promotion of himself as America’s Last Honest Judge particularly intolerable.  In his votes, Alito is an even more consistent Republican party-liner, but at least he’s not nearly as pompous about it.

Oil Train Explosions

[ 14 ] March 10, 2015 |


Too much destruction, not enough regulation. A sign o’the times.

Man Who Will Never Be President Says Dumb Things About Politics

[ 99 ] March 10, 2015 |

Jim Webb, everybody:

President Obama had a tremendous amount of goodwill when he was first elected. I don’t agree with the notion that he got all of this resistance automatically, simply because of external factors. He put health-care reform on the table at a time when we were in a major recession. It had been a big issue in the campaign, so there was a natural momentum to want to haul that through. But there was no bill. When George W. Bush was president, people would ask me about health-care reform, and I would say, having spent four years inside an administration, “If he wants that, he should put together a bill.” Bob Dole famously said, “The president proposes, the Congress disposes.” But there was no bill. The administration was sitting back, encouraging what became five different bills, three in the House and two in the Senate. It was very confusing, and it scared the American people.

I’ve already criticized the Rahm Emmanuel theory of health care reform extensively. In addition, there’s…well, Webb is kind enough to refute his own argument:

It could have been done in a different way. I, quite frankly, would have figured a narrower bill, but an actual bill. There are counterarguments to that, and I know you’re aware of them, where they were saying that the Clinton administration had put together a 1,100-page bill and it got ripped up. But you need a bill.

So, to summarize, Barack Obama succeeded in getting comprehensive health reform passed where Truman, Johnson, and Clinton either failed or didn’t. even. try. by publicly deferring to Congress. Bill Clinton tried to ram a health care reform bill right down Congress’s throat by going public, and is was a disaster on every level. Conclusion: Obama should have followed Clinton’s model. I can’t wait for Webb’s next interview, in which he argues that the Seahawks should have traded for Tim Tebow rather than drafting Russell Wilson.

Respecting Women Means Closing Sweatshops

[ 41 ] March 10, 2015 |


Too much of the talk around women at work these days revolves around wealthy women like Sheryl Sandberg. As Janey Stephenson argues, if we want International Women’s Day to mean something, that requires the closing of sweatshops worldwide. That will only happen if we create legal regimes that force companies to acquiesce to international labor law in their factories and that grants the rights of these usually female workers to sue in corporate nations of origin for real financial damages against their employers or the companies that contract with their employers. Without closing the sweatshops, the international exploitation of women by American corporations will continue and without empowering women and ending the race to the bottom, that international exploitation will never end.

This Day in Labor History: March 10, 1925

[ 31 ] March 10, 2015 |

On March 10, 1925, the New York Times first reported the story of the so-called Radium Girls, as U.S. Radium Company employee Marguerite Carlough had sued her employer for $75,000 for the horrific health problems caused by her work with radium that would soon kill her. The story would garner national headlines and would demonstrate both the awfulness of working conditions in the early 20th century and the failures of the workers’ compensation system to deal with health problems caused by poisonous work.

The 1910s saw the development of two phenomena that would come together in horrible ways for workers. The first was the wristwatch, invented during this decade. The second was the entrance of radium into the marketplace. Because radium glowed in the dark, it became a popular method of painting watch faces, since it made the watches useful at night. For soldiers in World War I, these watches were a godsend and this made them popular nationwide.

The Radium Luminous Materials Corporation (later U.S. Radium Corporation) plant in Orange, New Jersey caused a lot of problems in the neighborhood. Residents complained the company’s emissions turned their drying clothes yellow. For the workers, the radium was as much a delight as it was to the consumers. With little health research into its effects on the workers, the young dialpainters suffered heavy exposure to it. They were taught to hold the paintbrush with their mouths as they worked, wetting it with their tongues and thus ingesting the radium that way. They also played with the radium paint. They’d paint the fingernails with it. One woman had a date with her beau. So she painted radium on her teeth so her smile would glow in the dark when they were alone that night.


Advertisement for radium watch.

As early as 1922, workers began falling sick. The dialpainters were the first industrial victims of radium poisoning. Katherine Schaub and her cousin Irene Rudolph started working in the new dialpainting studio at the Radium Luminous Materials plant in 1917. They were both 15. In 1920, both Schaub and Rudolph quit, finding nonindustrial jobs, although Schaub would briefly return to dialpainting the next year. By 1922, they were both 20 years old. That year, Rudolph had mouth pain. She had a tooth extracted. The socket never healed. Her jaw begin to fester with rotting bones. Other dialpainters began coming down with the same problems. Randolph died in July 1923 after a year and a half of suffering. Schaub started to have health problems in November 1923. By this time, other dialpainters such as Amelia Magggia, Hazel Vincent Kuser, and Marguerite Carlough had died or were dying. Schaub’s continued mouth problems began to be known as “radium jaw.”


Workers at U.S. Radium, 1922 or 1923.

Medical researchers began to pay more attention to these sick women. So did the New Jersey Consumers’ League, the largely women-led industrial reform movement of the Progressive Era. That era had ended, at least in the years as it is classically classified by historians, but the national and state level organization still existed. The sole paid employee of the New Jersey branch was Katherine Wiley, but she was effective. In 1923, she had successfully lobbied for a bill banning night work for women. After hearing the legendary industrial reformer Alice Hamilton talk about workplace health, Wiley began exploring this in her home state. She soon found the dialpainters. In 1924, Wiley went to the commissioner of the New Jersey Department of Labor, Dr. Andrew McBride. He was furious that these meddlesome women were getting involved in these cases and denied that the radium companies had anything to do with the women’s illnesses.

Working with Hamilton, Wiley began trying to access the medical research. At Harvard, researchers working with U.S. Radium had done initial studies on the substance’s health effects. Wiley and Hamilton sought to acquire that data. The main researcher was loyal to the company and refused to release most of the information. But Frederick Hoffman, a researcher for the U.S. Department of Labor, did find at least some connections, although he was pretty sympathetic to the company too. All of this work did lead to the state labor department closing U.S. Radium, although it just moved to New York. Katherine Schaub kept pushing, convincing Hoffman to write to U.S. Radium about her condition. The company had her visit one of their doctors, who promptly told her that none of her illnesses had anything to do with radium.

Based on this research, in 1927, Schaub joined a dialpainters’ lawsuit organized by the New Jersey Consumers’ League in the state Supreme Court. But this was a difficult task. Not only had the statue of limitations passed since all these workers had quit several years earlier, but the dialpainters needed to prove both that U.S. Radium had caused their illnesses and that the company was negligent in their actions. The lawsuits were a struggle because workers’ compensation generally did not cover health related issues. The workers’ compensation came about as a way for corporations to cut their losses and enter a rational system for dealing with workplace health and safety because after 1890, workers were increasingly suing them successfully for compensation, a slow rejection of the doctrine of workplace risk established early in the nation’s industrial period.

Similar cases were happening at the Waterbury Clock Company in Waterbury, Connecticut (I can’t drive past this factory on I-84 without thinking of dead radium workers) and at Radium Dial in Ottawa, Illinois. Workers at all three plants struggled to achieve compensation. But in New Jersey, all the bad publicity convinced the company to settle with most of the workers in 1928, although it also made it very difficult for workers to prove any corporate culpability. In more conservative Connecticut, women played a much smaller role in state politics and despite a longer statue of limitations provision in the workers’ compensation law of 5 years, business controlled the state. Workers here received only relatively small settlements, even if Waterbury Clock admitted it had caused 10 deaths by 1936. In Illinois, the workers compensation system was such a mess that not a single sufferer received a cent until 1938.


Newspaper article publicizing plight of Illinois radium poisoning victims.

In the 1980s, high levels of radon were discovered in homes near the old plant in Orange. The company had long ago been purchased by Safety Light. Homeowners and the current corporate owners of the old plant sued Safety Light. In 1991, the New Jersey Supreme Court found U.S. Radium “forever” liable for the radium near its old factory. Workers laboring with radium however continued having problems, even as safety nominally improved. In the 1970s, radium workers in Ottawa, Illinois were found having radiation levels 1666 times the Nuclear Regulatory Commission-approved levels.

This post is based on Claudia Clark, Radium Girls: Women and Industrial Health Reform, 1910-1935.

This is the 136th post in this series. Previous posts are archived here.

Sam Simon

[ 19 ] March 9, 2015 |

A crucial force behind the greatest television comedy there ever was died at age 59.  R.I.P.

Chubby Amy Schumer

[ 105 ] March 9, 2015 |

Folks, I’m linking to this nonsense not because I think calling Amy Schumer chubby is dangerous and loony, but because a male critic felt it was appropriate to comment on Amy Schumer’s figure at all. 


“In a piece titled Apatow’s Funny-Chubby Community Has New Member, Hollywood Elsewhere writer Jeffrey Wells said: ‘With Trainwreck, director Judd Apatow is once again introducing a chubby, whipsmart, not conventionally attractive, neurotically bothered female comic to a mass audience – first Melissa McCarthy in Bridesmaids, then Lena Dunham in HBO’s Girls and now Amy Schumer.

She’s obviously sharp and clever and funny as far as the woe-is-me, self-deprecating thing goes, but there’s no way she’d be an object of heated romantic interest in the real world.'”

Oh really?

Florida Bans the Term “Climate Change”

[ 29 ] March 9, 2015 |


Florida banning its state employees from using the term “climate change” might be a short term political advantage for conservatives. But burying your head in the sand next to the ocean might not be a very good idea when that climate change you don’t want to admit is happening leads to rising oceans that drown you in your sandhole.

Guess Who?

[ 89 ] March 9, 2015 |

I’ve been putting together a lecture for tomorrow’s U.S. Environmental History class on atomic nature and I came across this ad, which I just could not resist sharing with you.


Good times.

ACA Troofers Uncover Another Conspiracy

[ 18 ] March 9, 2015 |

507871194_640Above: the woman who pulls the strings

The WSJ editorial page has uncovered some VERY DISTURBING FACTS about the legal world:

During a week they hear oral arguments, the Justices typically hold a private conference on Friday morning in which they declare where they are leaning on the cases. Just in time for last week’s Friday conference, liberal scholar Abbe Gluck tried one more state’s rights gambit to pull Justice Kennedy to the side of the four liberals who clearly want to uphold the subsidies delivered through federal exchanges.

Ms. Gluck teaches at Yale, but she clerked for Justice Ruth Bader Ginsburg and knows well Justices Sonia Sotomayor and Elena Kagan . It’s clear from Wednesday’s oral argument that she heavily influenced all three, and it’s possible the Justices or their clerks urged her to give it one more try.

Think of all the terrifying implications:

  • People who are not political conservatives might get nominated to the Supreme Court.
  • Even more disturbing, these days some of these people might be women.
  • These women may conspire to hire so-called “clerks” who might assist in writing and researching opinions be trained to spread liberal propaganda.
  • Yale Law School might hire people who are not political conservatives.
  • Even more disturbing, these days some of these people might be women.
  • Some of these women might have clerked for other women.
  • These Yale scholars might retroactively be able to form a coven with other women on the Supreme Court and teach them dangerous new things.
  • And as a result of all this sorcery, Justices Ginsburg, Sotomayor and Kagan might reach the same conclusions about the merits of King v. Burwell that every single other person who is not a fanatical opponent of the ACA has reached.

Truly disturbing!  Hopefully, we can have some male justices who worked in the Reagan administration to render a more neutral, independent opinion.

And now, the punchline:

Nice try, but this one is too clever by half. The “clear notice” standard is intended to protect states from being unduly pressured by the feds, as they were under ObamaCare’s Medicaid gun-to-the-head. But in the matter of subsidies, there was no lack of notice. The states knew what their options were from the day the law was passed…

HAHAHAHAHAHAHAHA. It sure is remarkable that none of these states were able to discern this “clear notice” until Republicans needed a Hail Mary after their ad hoc constitutional challenge failed, and indeed with one possible exception said precisely the opposite contemporaneously. My guess is that Abbe Gluck was able to retroactively erase a whole bunch of statements from Republican governors from the historical record.

You Are the Sucker, Joe Klein Edition

[ 79 ] March 9, 2015 |

charlie football

Joe Klein is impressed by Jeb Bush!

But Bush offered something far more important than specificity. He offered a sense of his political style and temperament, which in itself presents a grownup and civil alternative to the Giuliani-style pestilence that has plagued the Republic for the past 25 years.

Hmm, if only Joe Klein has been around to cover another reactionary son of George H.W. Bush so we could see how valuable evaluating politicians by their tone is.  Oh wait, he has:

It may have seemed like a stretch to infer some deeper conclusion about the GOP’s ideological direction from the looks of some panelists at a nominating convention. And, if one was to draw such an inference, it’s puzzling to interpret a resemblance to snooty Depression-era bankers (who, after all, had notoriously reactionary political views) as evidence of moderation, rather than the opposite.

Yet nothing could shake Klein from his theory. Not even Bush’s decision to bring on non-compassionate conservative Dick Cheney. “Anybody who tries to take a really strong position on [Cheney] from the left or from the right seems kind of silly,” Klein said of Bush’s vice presidential selection on a “Meet the Press” panel. “We’re all Clintonians now. Everybody is a Third Way Democrat or Republican, you know, and I think that that’s one of the central problems that politicians in both parties face right now, is that there are no huge differences, or at least very few.”

And then, after the election, Klein predicted that the result would be “a quiet, patient, and persistent bipartisanship,” with no big tax cuts or Supreme Court ideologues. Klein suggested helpfully, “Bush could easily retain Lawrence Summers at Treasury and Richard Holbrooke at the United Nations.” And this scenario could have easily come to pass, provided every other Cabinet-eligible American citizen had been wiped out in a nuclear holocaust.

So, let’s see.  Klein’s preferred way of evaluating candidates — assessing the “civility” of their rhetoric as opposed to their policy positions, actual records in office, political coalitions, etc. — makes no sense on its face.  When applied, it led to predictions that George W. Bush would not sign any big tax cut bills or nominate any justices like Sam Alito.  (For that matter, the Alito nominations were another case in which the theater critic pundits absolutely humiliated themselves. “He likes baseball and doesn’t write like Scalia, so how can he be a reactionary?”)  The answer, of course, is to continue to evaluate candidates in the same way, because the latest Bush is bound to settle down and start treating him right.  Hard to argue with that logic!

Latest AV Club column: On Birdman and long takes in contemporary cinema

[ 8 ] March 9, 2015 |


I neglected to post a link to this last week, but I thought some of you might still be interested in an article on the Internet even if it is almost one whole week old. Sample:

This is where the inherent tension in the contemporary long take comes from: The director forgoes conventional editing to telegraph intended meaning, instead employing a technique that urges the audience to consider the subject of the shot to be increasingly meaningful.

The long take also allows directors to use the standard magician’s ruse of having “nothing up his sleeve,” because the absence of cuts appears to indicate that there is neither time nor opportunity to insert special effects in a shot. Obviously this isn’t true — everyone unfortunately remembers Cloverfield — but the suggestion persists that a long take can’t be manipulated because some things can’t be faked in real-time.

Which is why it’s interesting that the opening shot of Birdman — before the ASL has even been established — consists of Riggan (Michael Keaton) performing the oldest trick in the magician’s handbook: levitation.

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