Giving Away the Show
The Supreme Court was right yesterday; campaign expenditures are not the equivalent of other kinds of political speech. Now. if it would only apply this logic to other campaign finance cases…
Tag: "Supreme Court"
Nobody “Chooses” Not to Participate in the Health Care Market
I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:
The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.
Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.
The Roberts Court and Free Speech Cases
The NYT has a nuanced article that discusses a new study released by the Brennan Center for Justice at NYU. Basically, contra conventional wisdom, the Roberts Court finds in favor of free speech at a lower rate than the three previous Courts. The Roberts Court has ruled in favor of speech 34.5%, whereas the rate for the Rehnquist Court was 49%, Burger 46%, and shockingly the Warren Court was 69%. While the NYT had the study reviewed by a couple political scientists who work in the field (Epstein and Segal) who determined that the difference between Roberts and the three previous courts in aggregate was statistically significant, yet the differences between Roberts and the two previous courts is not, I don’t find statistical significance a particularly useful tool considering the data involved.
What’s of greater interest is percentage of “free speech” cases that were actually about campaign finance (which I initially wondered about when reading the article). Here’s the money shot:
A majority of the Roberts court’s pro-free-speech decisions — 6 of 10 — involved campaign finance laws.
“What really animates” the Roberts court, Erwin Chemerinsky wrote recently in The Arizona Law Review, “is a hostility to campaign finance laws much more than a commitment to expanding speech.”
No shit. More Chemerinsky:
The court, he wrote, has a “dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students and its prisoners, and when it is claiming national security justifications.”
For the geeks among us, the article dips its toe into the pool of epistemology:
David L. Hudson Jr., a scholar at the First Amendment Center at Vanderbilt University, said the studies lacked nuance by, for instance, treating every decision as equally important. His criticism illuminated a gap between the two disciplines used to assess the Supreme Court: political science codes and counts, while law weighs and analyzes.
Which reminds me, I’ll have a couple stacks of essays on epistemological issues to grade when I return to England early next week. Splendid.
Gordon Hirabayashi (1918-2012)
Gordon Hirabayashi, a civil rights hero who was arrested while attending my alma mater and ended his career teaching at my native province’s flagship university, passed away at age 93. He was the last survivor of the three courageous people who refused to comply with racist internment orders during World War II, leading to negative-landmark precedents.
Hirabayashi’s case, as many of you know, made it to the Supreme Court. The civics textbook reputation of the Court notwithstanding, its record in terms of protecting unpopular minorities is not very good. So it was predictable that it unanimously upheld Hirabayashi’s conviction for violating the curfew order. “Because racial discriminations are in most circumstances irrelevant and therefore prohibited,” Justice Stone argued, “it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.” When the Supreme Court directly addressed the question of internment in the case of Fred Korematsu with similar conclusions, dissenting Justice Frank Murphy accurately summarized the constitutional error that also should have been recognized in Hirabayashi’s case:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.
And despite what Michelle Malkin and her enablers may try to tell you, the policy that led to Hirabayshi’s arrest was utterly lacking in military justification. The policy was a disgraceful stain on some otherwise admirable public careers: FDR, Earl Warren, Hugo Black, William O. Douglas. The utter indefensiblity of the internment did ultimately lead to some far-too-delayed justice for Gordon Hirabayashi:
Soon after retiring, Hirabayashi received a call that would prove consequential. Peter Irons, a political science professor from the University of California, San Diego, had uncovered documents that clearly showed evidence of government misconduct in 1942—evidence that the government knew there was no military reason for the exclusion order but withheld that information from the Supreme Court. With this new information, Hirabayashi’s case was retried and in 1987 his conviction was overturned.
“It was quite a strong victory—so strong that the other side did not appeal,” says Hirabayashi. “It was a vindication of all the effort people had put in for the rights of citizens during crisis periods.”
R.I.P.
More on Newt and the Courts
Lithwick valiantly tries to explain what Newt was up to. In addition to the fact that he’s envisioning himself as president, I think it’s also a example of how a little history is a dangerous thing. Newt is very vain about his very modest intellectual achievements, and yes indeedy FDR did try to pack the courts and Jefferson did succeed in getting federal circuit courts abolished with Supreme Court approval.* But we may want to go a step further and inquire how these plans worked out, and whether established constitutional norms would still permit them.
In addition, of course, I’m sure Lithwick is right that Newt is trying to specifically pander to Iowa voters. But I think the instincts of his opponents are sounder on this one. Attacking individual “activist” judges is much more effective than attacking the judiciary as a whole. But, then, I think a couple years from now we’ll be looking back at the two or three weeks when Gingrch was actually taken seriously as a potential presidential nominee with puzzlement. (I can’t agree that his collapse is “ahead of schedule.” The only surprising thing is that the bubble ever inflated in the first place.)
*As we know now from private correspondence, the Marshall Court didn’t uphold the legislation abolishing circuit courts because they actually believed this was constitutional, but because it was that or be impeached. A good indication of how Marshall felt is that he recused himself. He didn’t recuse himself in Marbury v. Madison — although his failure to deliver the commission was what triggered the lawsuit. I should also note, in fairness to the Jeffersonians, that these particular circuit courts also involved taking advantage of an obvious defect in Our Perfect Constitution — allowing a lame duck Congress and president to make major institutional changes after losing an election. The remedy was problematic but they had legitimate reason to be angry.
Shorter Newt: Impeach Earl Warren and Bring Back the Trail of Tears
I have a piece up at the Prospect about the attacks on the federal judiciary increasingly made by several Republican candidates, all of whom apparently have yet to be informed about the death of Earl Warren:
This returns us the question of why attacks on the federal courts have been so common in the Republican primary, when in fact the Rehnquist and Roberts Courts have largely been bonanzas for Republican interests. The four judges praised by most of the Republican candidates in the Iowa debate are not remotely deferential to the political branches. If there is any case that represents an “arrogant misreading” of the American public, it is the Citizens United decision. The public mood may have turned against corporate America, but the Roberts Court remains its best friend. And, of course, the same Republican candidates who have spent a great deal of time decrying “judicial activism” are also urging the Supreme Court to strike down the centerpiece legislation of Barack Obama’s first term on the basis of an extremely dubious legal argument….
Not only are many of the Republican attacks on the courts potentially dangerous; they also reflect a bizarre world in which Republican-dominated federal courts are seen as bastions of liberalism. As on so many other issues, wealthy, privileged Republicans have the remarkable ability to be permanently aggrieved no matter how much they’re winning.
The thing is is that, while Gingrich’s arguments are obviously unserious, I am actually not a big fan of judicial supremacy, and don’t think that all of the policy proposals being made by Republicans are unreasonable. I actively support non-renewable fixed terms of Supreme Court justices, and have no objection to a legislative override (although as a look across the northern border would make clear these changes would have much less of an effect on the institution of judicial review than the politicians making the proposals seem to understand.) Granted, I wouldn’t bring up Andrew “John Marshall has made his ruling, now let us proceed with ethnic cleansing” Jackson or Jefferson’s abolition of federal circuit courts as salutary examples, but I certainly don’t think that courts should have any kind of monopoly on constitutional interpretation. But what amazes me is that to listen to the Republican candidates you’d think it was still 1965.
When He’s Right, He’s Right
I have to give Newt this one: Citizens United was indeed an arrogant misreading of the American people.
My takeaway from the debate segment on the courts is that every Republican candidate except Paul was cryogenically frozen in 1968, recently woke up, and have never been informed about the death of Earl Warren. Well, except Perry, who has never had any idea who Earl Warren is. I’m so old that I remember assertions that Bush v. Gore would end conservative lectures about “judicial activism”…
…shorter Mittens: I oppose discrimination against gays and lesbians, except when it comes to fundamental rights.
…Shorter Newt: I want to decrease abortion by radically increasing unplanned pregnancies.
Supremes To Take Arizona Immigration Case
And it’s far from clear to what’s going to happen. Thomas, ordinarily the staunchest states’ “rights” justice, is different in preemption. And elite Republicans don’t have monolithic views on immigration enforcement (in particular, you have to think that Kennedy might see auto executives getting detained in Alabama and think it might be time to put the brakes on.) But the Supreme Court always likes a chance to overrule the 9th Circuit and while Noonan — one of the 9CA justices who voted to strike the law — is a conservative his views on federalism are comparable to Breyer’s, so it doesn’t really tell us anything.
Another possibility I didn’t discuss in the Guardian piece is that the Supreme Court could follow the 9CA dissenter, who voted to uphold some but not all of the law. Carlos Bea would have struck down only the provision that would have made it a state crime not to carry papers and the clause that makes it illegal for an undocumented immigrant to seek work, while upholding the rest (including the crucial “show us your papers” arbitrary search provision.) I could see that appealing to Roberts in particular. But it’s hard to read the tea leaves on this one, particularly for such a potentially important case.
The Confrontation Clause and the Obama Appointees
I have a piece up at the Prospect about the 6th Amendment case that was argued yesterday. Since Scalia and Thomas have taken pretty consistent civil libertarian positions on the Confrontation Clause, the swing votes in the case are actually Kagan and Sotomayor. I have some concerns based on Sotomayor’s 6th Amendment opinion from earlier this year:
One might think that the two precedents make Williams v. Illinois a slam-dunk, but there a couple of reasons to think that the Court might change course. As Tom Goldtsein at SCOTUS blog observes, Sotomayor’s concurrence in Bullcoming specifically argued that the issue presented in Williams was not before the Court, suggesting that she’s open to switching to the other side in the new case. In addition, another Confrontation Clause case handed down earlier this year suggests that a majority of the Court may be looking to retreat. Sotomayor wrote an opinion allowing hearsay evidence given by a victim who was in the process of dying of gunshot wounds to be admitted—something that the 6th Amendment would ordinarily forbid—because it was it was not “testimonial.” In a scathing dissent, Scalia wrote that the majority’s interpretation of the victim’s remarks was “so transparently false that professing to believe it demeans this institution” and that Sotomayor’s opinion was “short on the facts, and short on the law.” Scalia’s dissent was unkind and uncivil—but it wasn’t wrong.
It will be interesting to see how this one comes out.
Stalemate in the Abortion War
Irin Carmon’s overview is extremely useful. The real threat under the current Supreme Court configuration isn’t so much the “personhood amendments” that clearly contravene Casey and aren’t popular even in anti-choice outliers, but incremental innovations like “fetal pain” laws that keep expanding the state’s role and pushing the line where abortions are easily available back. Of course, “fetal pain” laws that ban abortion after 18 weeks should also be unconstitutional under Casey, but it’s unlikely the current Court would agree. As one eminent scholar is quoted, “[t]he fetal pain thing is complete bullshit, but Kennedy has already proven that he doesn’t care what the evidence is.” For those who don’t understand the reference, I note this classic quote from his embarrassing-on-every-level opinion in Carhart II:
Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.
I particularly like the way the piece emphasizes the fact that the rationale for “centrist” abortion regulations collapses on itself. On the one hand, abortion “centrists” like to focus on regulating late-term abortions, but on the other hand they favor all kinds of arbitrary regulations that make pre-viability abortions much harder to obtain. It’s a nice racket — if you don’t actually care about the reproductive rights of women.
The Roberts Court Will Not Allow Any Justice to Stand
Although it’s sort of touching that they think governors and prosecutors will take scientific findings showing evidence to be unreliable into account if appellate courts can’t. The other salient fact about the case is Kagan joining the majority.
