I tuned in to Fox News for the first time in months to see how they were reacting to the health care ruling, but they decided to do a lengthy interview with Rupert Murdoch instead. Pretty clever. The Corner is filled with their spin. "The ruling turns ObamaCare into the biggest middle class tax cut in history." "We won on the Commerce Clause!" "Let's repeal the whole thing." "Now, the only way to fix this is to vote for Romney."
I feel like a giant asteroid is going to hit our country tomorrow and it's making it a little hard to write about anything else. Anyone feeling similarly? I actually have a piece I need to do, but I keep putting it off. It's not writer's block exactly. It's more like a giant shadow of doom.
If you are pins and needles waiting to see how the Supreme Court ruled on the Affordable Care Act, Sean Trende's piece is pretty well-reasoned. It's tough to come out with a prediction that may make the author look like an idiot less than 24 hours later, so it's best to hedge a bit. Trende puts the likelihood that the bill will be untouched at about 15%-20% and he raises the possibility that the whole law will be struck down because the Justices won't want to do the hard work of choosing what stays and what goes. His most interesting observation, though, is encouraging. In the past, when Antonin Scalia has issued especially grumpy opinions, it has indicated that other cases were not going his way. Since Scalia threw a hissy-fit over the Arizona immigration case, perhaps he's not happy with the coming decision on health care.
Trende also does a nice job of explaining why he believes the heath care case will be written by Chief Justice Roberts, and I agree with his reasoning. However, I don't agree with his conclusion that that is necessarily bad news for the bill. Trende says, "...because we can now deduce with a reasonably high degree of certainty that John Roberts is writing the lead health care opinion...the law is in even deeper trouble that (sic) most observers imagined."
I don't think that follows. If Roberts is in the majority, that means that Kennedy is in the majority, too. That's true regardless of whether they are ruling for or against the bill. It could be a 6-3 decision to uphold or a 5-4 decision to strike all or part of the Act. (I'm assuming here that Roberts would not be the fifth vote to uphold, but might be the sixth).
Let me walk you through this. If the Chief Justice is in the majority, he assigns the case. He can pick himself or anyone else in the majority. But if the Chief Justice is in the minority, the most senior member of the majority assigns the case. In any plausible 5-4 decision, Kennedy would be the most senior member of the majority and would probably assign the case to himself. Knowing this, if Roberts is inclined to rule against the government, he would have good reason to offer the opinion to Kennedy. If Kennedy is not losing the privilege of writing this hallmark decision, he might be more inclined to rule with the conservatives.
If we knew that Kennedy wrote the decision, it would tell us nothing. He's as likely to rule one way as the other. But the fact that he didn't write it strikes me as a slight indication that Roberts felt no need to entice Kennedy or show him the courtesy of retaining the ability to write the opinion. I'm reading tea leaves here, but I take Roberts' authorship as a good sign.
Now, Trende argues that Kennedy showed some sympathy at oral arguments for the government's case, while Roberts showed none at all. I think that is just factually inaccurate. To take just one example, he challenged Paul Clement on his characterization of the mandate as something the government was forcing you to buy rather than a regulation about how you pay for something you'll inevitably need.
CHIEF JUSTICE ROBERTS: Well, Mr. Clement,
the key to the government's argument to the contrary is
that everybody is in this market. It's all right to regulate Wickard — again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating.
Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it.
At another point, Roberts interrupted to ask Clement to go back and answer a question previously posed by Justice Sotomayor. But Sotomayor hadn't asked a question; she had made a statement of fact:
JUSTICE SOTOMAYOR: Yes, but that's exactly
what Justice Marshall said in Gibbons. He said that it is the power to regulate, the power like all others vested in Congress is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution. But there is no conscription in the, set forth in the Constitution with respect to regulating commerce.
Obviously, Roberts wanted Clement to address Sotomayor's point, which indicates to me that he thought she had a point.
I don't know how the Court will rule, but the only thing we know from Roberts' likely authorship is that he is likely in the majority. That means a 5-4 decision to uphold the Affordable Care Act is unlikely, but it says nothing about a 6-3 decision to uphold it. And, again, I think it is slightly more likely that Kennedy would be the author than Roberts of a 5-4 decision against the Act.
As more and more evidence leaks out in the George Zimmerman case, I am beginning to wonder why he was charged with second-degree murder and how the state hopes to prove their case. On a very basic level, there is no doubt that Zimmerman took actions and failed to take others that would have prevented a violent confrontation. He's clearly at fault. A boy is dead and Zimmerman is responsible for that.
It's also clear that Zimmerman is a badly flawed individual who bullied a middle-eastern co-worker, made anti-Mexican remarks on his MySpace page, was arrested for confronting an off-duty police officer, and once had a restraining order put on him by an ex-girlfriend. The story he told the cops wasn't believable in several respects, although I'm not sure any of those discrepancies matter legally.
It seems to me that Zimmerman only has to do one thing to win acquittal. He has to raise a reasonable doubt that his story is true about having his head bashed into the sidewalk and him feeling as though his life was in danger. I don't see any of the other facts in the case to be relevant to the second-degree murder charge. It doesn't matter why he suspected Trayvon Martin or why he followed him or who initiated the fight or why they initiated the fight.
From what I've seen, witness testimony conflicts about who was on top during the scuffle, but the best witness will testify that it was Martin who was on top, and the others are uncertain or are on record as being less certain that they appear to be now. The voice analysis appears to be inconclusive about who was screaming for help, although several witnesses will testify that they think it was Martin.
Zimmerman did sustain significant injuries but it's hard to conclude anything from them. I can picture a scenario where Martin punches Zimmerman in the nose and then is tackled in response, pinned down, and uses his fingernails to scrape the back of Zimmerman's head in an effort to fight back. As the police noted, if Zimmerman's head had been slammed into the sidewalk, he probably would have sustained skull fractures, not minor lacerations. I don't think the witness testimony will support the placement of the final confrontation on or near the sidewalk.
The prosecutors will not have much trouble impugning Zimmerman's credibility. He claims to know the face of every resident of his community but not the names of its three streets. The prosecutors will easily establish that Zimmerman ignored the dispatcher's instruction not to follow Trayvon Martin and initiated an unnecessary confrontation by not identifying himself as a neighborhood watchman. But I don't see how they can remove all reasonable doubt that Zimmerman was not fearful for his life when he fired the shot that killed Martin.
Maybe that's a problem with the law, but I think it's more a problem with the charges. Unless they can come up with voice analysis proving that Martin was the one crying for help, I think Zimmerman will be acquitted.
Although the facts would remain challenging, I think a manslaughter charge would be easier to prove.
In any case, all I wanted was for Zimmerman to have to prove his innocence in court. If the trial is fair and the jury follows its instructions, I have no problem with either a conviction or an acquittal. I just wonder if the prosecution is being a little too ambitious.
It looks like Congress will have one less alcoholic lunatic in office come next January. Rep. John Sullivan of Oklahoma is going down tonight in a primary. I have no idea if his replacement is any saner, but hopefully he drinks less. In other news, Charlie Rangel survived. What's on your radar tonight?
Contra Jamelle Bouie, the symbolic value of black Republicans is not real. It is knee-slappingly funny. Need evidence? Watch this:
Are you done laughing?
Good. Did any part of that strike you as symbolically important? Or did it strike you as the most astonishingly brazen Uncle Tomism imaginable. Support civil rights. Vote for the guys who are suppressing the black vote. Throw out the black attorney general who is protecting the black vote. Brought to you by two of the biggest beneficiaries of tokenism in the history of this country.
I congratulate George Will for recognizing the absurdity of the conservatives' dissents in Miller v. Alabama. Mr. Will was a little coy about his criticism, but at least he felt moved to say something. When it comes to human rights, you can't resort to constitutional originalism. In reality, you can't go back beyond 1945. It was only after the survivors of World War Two saw what humans had done to other humans and faced the prospect of nuclear annihilation that we got serious about human rights. There are many things that were not considered particularly cruel and certainly were not unusual prior to 1945 that are now considered violations of people's human rights. To argue that we cannot interpret the Eighth Amendment according to post-war standards of decency is barbaric. The conservatives on the Supreme Court are barbarians. You can trust Mr. Will to forget this insight by suppertime.
What's with the spate of conservative Springsteen fans? Today, it is David Brooks reporting back from his tour with the Boss through Spain and France. The column is actually not that bad. It's several notches above what we have lately come to expect from Mr. Brooks. He mercifully spares us any false dichotomies, although we do get treated to a new word from child psychology: "paracosms." And I have something to say about that.
Although Brooks appears to be very familiar with Springsteen's body of work, he still approaches a Springsteen concert much like a British anthropologist in Borneo. "Don't these Spaniards know that they were not, in fact, born in the USA? Why do they sing along as though they were? I know. Paracosms!"
When we are children, we invent these detailed imaginary worlds that the child psychologists call “paracosms.” These landscapes, sometimes complete with imaginary beasts, heroes and laws, help us orient ourselves in reality. They are structured mental communities that help us understand the wider world.
Of course, Springsteen has created a landscape filled with shut down strangers and hot rod angels, broken heroes and fat cat villains. But David Brooks doesn't allow himself to be immersed in this world. What does Mr. Brooks know of taconite, coke, and limestone, or smokestacks reaching like the arms of God into a beautiful sky of soot and clay? He knows nothing about that. It doesn't speak to him at all.
The job of a lyricist or a poet is not to tell you what happened, but to get you to feel what they feel. If you are creating your own paracosm, this happens automatically. But if you are creating a paracosm for others' enjoyment or edification, your task is get people to enter into your creation and experience it as their own. When Springsteen sings about the Ghost of Tom Joad, he's putting you under a bridge with hot soup on a campfire. You are supposed to go there, to be there. You are not supposed to stand back aloof and wonder why Springsteen appeals to people who have never been homeless, living out of their car.
If an artist fails to get any appreciable number of people to enter their created universe, they'll be a failure. But that's obviously not the case with Springsteen, whose European fans are described by Brooks as "two standard deviations" more frenzied in their devotion to the Boss than their cultish American counterparts. Springsteen is a rousing success as a poet, lyricist, and musician. Yet, it appears Mr. Brooks cannot really get it. His interpretation of Springsteen's success is totally detached. And it's hopelessly pinched.
It makes you appreciate the tremendous power of particularity. If your identity is formed by hard boundaries, if you come from a specific place, if you embody a distinct musical tradition, if your concerns are expressed through a specific paracosm, you are going to have more depth and definition than you are if you grew up in the far-flung networks of pluralism and eclecticism, surfing from one spot to the next, sampling one style then the next, your identity formed by soft boundaries, or none at all.
What Brooks is saying here is that Springsteen is very consistent and that he stays with certain themes, musically and lyrically, and that he has created a kind of narrative, much like J.K. Rowling did with the Harry Potter books. There's definitely something to this observation, but it completely misses about 99% of Springsteen's appeal. Using Brooks' analysis, we could change the content and characters of Springsteen's universe from working class America to the boardrooms of corporate Europe and nothing essential would be lost. As long as the artist was speaking from experience and was honest and consistent, the paracosm could be just as effective and the artist equally successful.
Even if we stipulate that such a hypothetical artist could exist and could be wildly successful, the fan base would be much different and the types of emotions evoked would be completely dissimilar.
I have heard it said that conservative comedians are not funny because they punch down instead of punching up. The same would be true about an artist who sang about the troubles of corporate CEO's. Springsteen's newest single is called, "We Take Care of Our Own." Of course, the point is that we increasingly fail to take care of our own. There's a moral element to everything Springsteen does. It's about the sheep and the goats. If Springsteen gives us the "tortured Catholic overtones" of celebrating your nineteenth birthday with a union card and a wedding coat, he also insists that we be judged by what we did for the "least of these." Did we give the hungry something to eat and the thirsty something to drink? Did we give the stranger hospitality? Did we look after the sick and give clothing to the poor? Did we visit people in prison?
If we didn't do those things, then Springsteen brings a judgmental and condemning eye. Springsteen is in that same prophetical line. His appeal is Biblical, which is a little more universal and profound than a child's world of make-believe.
I have one final observation. Brooks was amazed at the spectacle of Spaniards singing, "I was born in the USA." True Springsteen fans were more amazed at the spectacle of conservatives doing the same as if that song were patriotic. The song tells the story of a young boy who got in trouble with the law and was shipped off to Vietnam. His brother was killed there. When he got back, he got a job at a refinery where the management was not understanding. The Veteran's Hospital was unhelpful. Ten years after returning from the war he's in a nowhere job, heading nowhere, and living in the shadow of the penitentiary. He's a "long gone Daddy in the USA." Spanish unemployment is at 25% right now. Is it possible that a good number of those chanting Spaniards were actually more aware of what they were hearing than David Brooks?
You have to scroll down a lot to find Clarence Thomas's dissent in Miller v. Alabama (which was joined by Scalia), but it's worth it. The case involved two different murders committed by 14 year olds. Actually, only one of them directly killed anyone. The other kid was guilty of murder because he was implicated in the crime that led to the victim's death. Both of these kids received life sentences without the possibility of parole. Today, the court ruled in a 5-4 decision that those sentences were unconstitutional. The specific problem was that the judges had no discretion. Once convicted, the judges had to impose this harsh sentence. The Court said that each case involving juveniles must be considered individually on its own merits. In other words, a mandatory minimum sentence of life without the possibility of parole for a juvenile, may be cruel and unusual punishment under the Eighth Amendment. As a result, states cannot set such harsh mandatory minimum sentences for juveniles. The two kids can still be sentenced to life without parole, but only after a judge looks at their cases again, with the benefit of discretion.
I hope that is clear.
Justice Thomas has a different view. He thinks that the cruel and unusual standard should only apply to the method(s) of punishment. If being locked in a jail cell isn't cruel or unusual, then no sentence to any amount of jail time can be cruel or unusual. Using his logic, a state legislature could make stealing from the cookie jar a crime punishable by twenty years in prison and that would not be cruel or unusual. In fact, a sentence of life without parole would be perfectly legitimate. He really, truly argues this.
Justice Roberts is hardly any better in his dissent. He simply states that there is nothing unusual about people serving time in prison. Sure, some sentences might be cruel, but unless they are both cruel and unusual, then there is no problem.
Justice Alito thinks the Court has no right to hold our society to a higher level of decency than when we just hung people from public gallows or shot them down in public executions. If we burned witches in Salem, who are we to think we're so much more enlightened today? The country's moral fiber has been eroding since Leave It to Beaver was cancelled so, obviously, however we treated child convicts in the 1780's should be acceptable today.
Do you think the Republicans would be pushing voter photo ID laws if they didn't think it would benefit them politically? I think you can forget about that.
State Treasurer candidate Diana Irey Vaughan may have stolen the show at the Republican State Committee meeting this past weekend, but that doesn’t mean other party members didn’t have anything to say.
In fact, one of them had a lot to say.
House Majority Leader Mike Turzai (R-Allegheny) suggested that the House’s end game in passing the Voter ID law was to benefit the GOP politically.
“We are focused on making sure that we meet our obligations that we’ve talked about for years,” said Turzai in a speech to committee members Saturday. He mentioned the law among a laundry list of accomplishments made by the GOP-run legislature.
“Pro-Second Amendment? The Castle Doctrine, it’s done. First pro-life legislation – abortion facility regulations – in 22 years, done. Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.”
I don't think the voter photo ID requirement is going to allow Romney to win Pennsylvania. but it will definitely cause the president to get many thousand fewer votes. In theory, the Pennsylvania law could change the outcome of the state election and therefore the national election. But it wouldn't do this by preventing voter fraud. It would do it by preventing registered Democrats from voting. It would "allow" Romney to win even though most registered voters didn't want him to win.
To get an idea how brainwashed the right is about this, let me tell you a story. When CabinGirl went to vote in our primaries, a Republican poll worker informed her about the new photo ID law. She said that they were asking for photo ID's for the primary election but they wouldn't actually be required until the general election in November. When CabinGirl complained about this requirement, the lady said, "We need to do this to keep the terrorists from voting."
Think about the nitroglycerin of stupid required for someone to make a statement that dumb.
That's what watching Fox News all day can do to a previously perfectly-good human brain.
As you probably know, I did some work with Democracy for America to raise awareness of and build support for an effort by our country's state attorneys general to file an amicus brief with the Supreme Court in favor of hearing the American Tradition Partnership, Inc. v. Steve Bullock, Attorney General of Montana case. Ultimately, twenty-three attorneys general signed on to the brief (you can thank them here). Personally, I want to thank all of you who stepped up to the plate to lend your hands to the effort. Sadly, however, we were not successful.
In a brief per curiam (unsigned) opinion, the five conservatives on the Court summarily overruled the Montana Supreme Court's decision to defy Citizens United and refused to receive briefs or hear arguments. Justice Breyer, writing for the minority, issued a terse dissent.
This is tragedy for Montana, but it is also a tragedy for our whole country. The conservatives didn't even have the intestinal fortitude to sign this death sentence for our democracy. They were completely unmoved by the spectacle of billionaires deciding who would become the Republican nominee or the opinions of nearly half the attorneys general in the country that Citizens United has a corrupting influence on their home state's politics.
This is utterly shameless and totally destructive. The only way to fix this now is to replace one of the five conservatives on the Court with an Obama nominee.
The Supreme Court did not issue their ruling on the Affordable Care Act today. That decision will almost certainly be announced on Thursday as I am preparing to go on vacation. Doesn't that figure? However, the Supreme Court did rule on S.B. 1070, the Arizona immigration law. It basically ruled in the Obama administration's favor, although it did allow one part of the law to stand (at least, for now).
1. Police Checks. Section 2(B) of the law requires the police to check the immigration status of persons whom they detain before releasing them. It also allows the police to stop and detain anyone suspected of being an undocumented immigrant. The Court held that the lower courts were wrong to prevent this provision from going into effect while its lawfulness is being litigated. It was not sufficiently clear that the provision would be held preempted, the Court held. The Court took pains to point out that the law, on its face, prohibits stops based on race or national origin and provides that the stops must be conducted consistent with federal immigration and civil rights laws. However, it held open that the provision could eventually be invalidated after trial.
The immediate result is that Arizona can continue to harass and detain Latinos even if it can't deport them unilaterally. Naturally, there are limits imposed by the plain language of the bill, but proving that the effect of this section is to create unlawful racial harassment remains to be proven in court.
While that is being litigated, other red states can pass their own Latino harassment laws, and some may do so. This is bad news for Mitt Romney, who upheld the Arizona law as a model for the country.
