Narrow ruling gets wider

Well, that was quick. The Hobby Lobby ruling was supposed to be narrow, but the next day the Supreme Court clarified that the decision was wider than they implied:

The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling.

The justices did not comment in leaving in place lower court rulings in favor of businesses that object to covering all 20 methods of government-approved contraception.

Oklahoma-based Hobby Lobby Inc. and a Pennsylvania furniture maker won their court challenges Monday in which they refused to pay for two emergency contraceptive pills and two intrauterine devices.

Tuesday’s orders apply to companies owned by Catholics who oppose all contraception. Cases involving Colorado-based Hercules Industries Inc., Illinois-based Korte & Luitjohan Contractors Inc. and Indiana-based Grote Industries Inc. were awaiting action pending resolution of the Hobby Lobby case.

And then yesterday, we learn (via here) that a group of faith leaders thinks it should have an even wider reach:

“We are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need,” the letter states.

The Hobby Lobby decision has been welcomed by religious-right groups who accuse Obama of waging a war on religion. But Tuesday’s letter is different: It comes from a group of faith leaders who are generally friendly to the administration, many of whom have closely advised the White House on issues like immigration reform. The letter was organized by Michael Wear, who worked in the Obama White House and directed faith outreach for the president’s 2012 campaign. Signers include two members of Catholics for Obama and three former members of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.

“This is not an antagonistic letter by any means,” Wear told me. But in the wake of Hobby Lobby, he said, “the administration does have a decision to make whether they want to recalibrate their approach to some of these issues.”

Here’s more from the letter:

As religious and civic leaders who seek to advance the common good, we write to urge you to include a religious exemption in your planned executive order addressing federal contractors and LGBT employment policies.

We have great appreciation for your commitment to human dignity and justice, and we share those values with you. With respect to the proposed executive order, we agree that  banning discrimination is a good thing. We believe that all persons are created in the divine image of the creator, and are worthy of respect and love, without exception. Even so, it still may not be possible for all sides to reach a consensus on every issue. That is why we are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need.

Americans have always disagreed on important issues, but our ability to live with our diversity is part of what makes this country great, and it continues to be essential even in this 21st-century. This ability is essential in light of our national conversation on political and cultural issues related to sexuality. We have and will continue to communicate on these broader issues to our congregations, our policymakers and our nation, but we focus here on the importance of a religious exemption in your planned executive order disqualifying organizations that do not hire LGBT Americans from receiving federal contracts. This religious exemption would be comparable to what was included in the Senate version of the Employment Non-Discrimination Act, which passed the Senate with a strong, bipartisan vote.

Without a robust religious exemption, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom.

I see, the common good dictates that certain groups need to be able to discriminate. Oh, and guys, if you liked the language in ENDA perhaps you should have pushed harder to pass it or at least not opposed it:

In a letter sent to legislators, the United States Conference of Catholic Bishops (USCCB) argued that while workplace discrimination is wrong, ENDA goes beyond mere anti-discrimination.

“ENDA’s definition of ‘gender identity’ lends force of law to a tendency to view ‘gender’ as nothing more than a social construct or psychosocial reality, which a person may choose at variance from his or her biological sex. This provision also fails to account for the privacy interests of others,” wrote the USCCB.

Update: And look at that, the ruling gets even wider.

When will corporations be allowed to vote?

So, it seems the Supreme Court now believes that at least some corporations can exercise religion using this clause in a bill passed by Congress:

In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The five justices that ruled for Hobby Lobby and the others assume that person here includes corporations–in other words, they assume corporations can practice religion.

They also rule that we should have single-payer:

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.

I agree. Now if we can only get Congress to pass such an act, –I’m sure it will be passed any time now.

Also, the court says this doesn’t apply to much else but with a wink:

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Notice that little may: “Other coverage requirements, such as immunizations, may be supported …”. Thus, this court is saying that it’s possible that a corporation may be able to drop an immunization requirement if they can make a good argument (an argument that these five justices agree with really). I wonder what other things we’ll later find do not have to be supplied.


Both sides do it

This article starts with a bit about Justice Scalia and then says this:

“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

but then they get to the actual results:

The largest one, at least among members of the Supreme Court who cast more than 100 votes in free speech cases since 1953, belongs to Justice Scalia. Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but the preliminary data show a similarly significant preference for conservative speakers.

Justice Anthony M. Kennedy, the current court’s most reliable free speech vote, favored conservative speakers by a smaller but still significant margin.

The Roberts court’s more liberal members “present a more complex story,” the study found. All supported free expression more often when the speaker was liberal, but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010.

In the case of Justice Stephen G. Breyer, the difference was negligible. And it is too soon to say anything empirically meaningful about Justices Sonia Sotomayor and Elena Kagan.

In other words, the conservative justices are all much more likely to vote for free speech if it’s conservative while liberals only lean towards supporting liberal speech. Look at the numbers (they are the percent of time they voted for free speech if the speaker was liberal, if the speaker was conservative, and the total votes counted; an asterisk means the difference is significant):

  • Thomas      23.1*   65.4    104
  • Scalia          20.7*   65.2    161
  • Alito            9.1*      53.9    24
  • Roberts      15.4*    64.3    27
  • Kennedy   43.2*     67.7    143
  • O’Connor  30.6*    50.7    190
  • Breyer       40.0      38.1    87
  • Souter       60.3      51.1     103
  • Ginsburg  53.2      40.0    92
  • Stevens     62.8*    46.9    260

You might notice that all of the conservative judges have a statistically significant difference and only one liberal judge does. You might also notice that the largest difference for a liberal judge is about 16%, while the smallest for a conservative judge is about 20% and that’s if we count O’Connor and Kennedy as conservative. If we count them as moderate, then the smallest difference for a conservative is about 39%–but both sides are the same.

Voting Rights Act

It seems that there might be a bill to strengthen the part of the Voting Rights Act that the Supreme Court got rid of:

It’s rare that you can get Reps. Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) to agree on much of anything. The former, after all, introduced the USA PATRIOT Act to the House, and sponsored H.R. 4437, the House-passed bill that would have made “illegal presence” of immigrants a felony, and which prompted huge protests by immigration activists across the country. Conyers, by contrast, is a liberal stalwart who has championed Medicare-for-all and a public jobs program for the unemployed.

But the two, along with Sen. Patrick Leahy (D-Vt.), are introducing legislation they co-wrote to strengthen the Voting Rights Act. The act’s “pre-clearance” process was substantially weakened by a Supreme Court case this last spring. The new bill doesn’t roll back all of that ruling, but it does expand pre-clearance and add other protections currently lacking in the act.

Ari Berman has a summary of what it does (this is just the intro to the summary, click on the link to see the full summary):

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval.

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.”

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting changes within 180 days of a federal election and the moving of a polling place.

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law.

5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

Rick Hasen, of course, something to say about the bill: his initial thoughts are here; he puts together links here.

Anything that cracks down on measures to make it harder to vote is a good thing, so I’m pleasantly surprised that Senator Sensenbrenner is co-sponsoring this (perhaps I shouldn’t be, he did help the reauthorization of the VRA pass in 2006). It remains to be seen if this can pass the House (you can see what it might be a problem here).

Scalia and ‘free speech’

The Supreme Court is deciding if Massachusetts’ buffer zone rule for clinics that perform abortions is constitutional. There is an argument to be made there, but today I only want to  look at one of Scalia’s statements:

Second, should the court reverse that 2000 decision entirely? The vote in that case was 6-to-3, with the majority ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious. Justice Antonin Scalia delivered a rare and blistering oral dissent when the opinion was announced. “Does the deck seem stacked?” he thundered. “You bet.”

He went on to say that “our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.”

That’s certainly a defensible argument, but let’s look at another case that Scalia talks about:

One of the evolutionary provisions that I abhor is New York Times v. Sullivan. It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world. That’s what New York Times v. Sullivan says. That may well be a good system and the people of New York state could have adopted that by law, but for the Supreme Court to say that the Constitution requires that — that’s not what the people understood when they ratified the First Amendment.

Now look at part of the argument given in that case:

Thus, we consider this case against the background of a profound national  commitment to the principle that debate on public issues should be uninhibited,  robust, and wide-open, and that it may well include vehement, caustic, and  sometimes unpleasantly sharp attacks on government and public officials.

The New York Times case was about people trying to stop desegregation. If a newspaper wrote about civil rights in a way they didn’t like and made even the smallest error, they would sue–obviously this was a tactic to stop speech hence the argument upholding saying that free speech should be uninhibited. The fact that Scalia used the exact same words, makes me think he is mocking the earlier case that he so abhors.

Win one for abortion

This is semi-good news:

The Supreme Court on Monday declined to hear an appeal from Arizona officials seeking to revive a state law that barred most abortions after 20 weeks of pregnancy. The justices offered no reasons for turning down the appeal, as is their custom.

The case concerned an Arizona law, enacted in 2012, that prohibits abortions, except in medical emergencies, when the fetus reaches 20 weeks gestation, dated from the woman’s last menstrual period. The law’s definition of medical emergency is narrow, encompassing conditions requiring immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”

The law’s sponsors claimed that fetuses can feel pain at 20 weeks, a contention that has been disputed by major medical groups.

In May, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the Arizona law was unconstitutional “under a long line of invariant Supreme Court precedents” starting with Roe v. Wade in 1973.

It means that the Arizona law is unconstitutional, but it does not automatically make a lot of similar laws unconstitutional (of course, if the Supreme Court had decided to hear the appeal then they might have decided that this law is constitutional so I’m ok with the non-ruling).

This part of the argument is a bit weird:

But they argued that the law did not amount to an outright ban, only to a permissible regulation, one they said was justified by the state’s interest in preventing fetal pain and the increased risk to women as their pregnancies progress. The appeals court rejected both arguments.

“As for Arizona’s claimed interest in the mother’s health,” he continued, “people are free to do many things risky to their health, such as surgery to improve their quality of life but unnecessary to preserve life.”

As far as I know, an abortion is always safer than carrying the fetus to full-term so the argument that limiting abortions is for the woman’s health is just silly.

And then there were none

This is disheartening if expected:

A sharply divided Supreme Court decided Tuesday to allow Texas to continue enforcing abortion restrictions that opponents say have led more than a third of the state’s clinics to stop providing abortions.

The justices voted 5-4 to leave in effect a provision requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital.

But a three-judge appellate panel moved quickly to overrule the judge. The appeals court said the law was in line with Supreme Court rulings that have allowed for abortion restrictions so long as they do not impose an ‘‘undue burden’’ on a woman’s ability to obtain an abortion. Writing for the appeals court, Judge Priscilla Owen noted that the Texas law would not end the procedure, only force women to drive a greater distance to obtain one.

What’s great about this if you want to outlaw all abortions is that it’s a stepping stone. If this is ok since it only makes you drive a bit more, then another law that shuts down more clinics will also be ok by the same logic–it will only be a few steps until there will be no real clinics in the state (after all it’s not that much further to drive to another state).

Not the best examples

Republicans are back to filibustering:

In a setback for the president, Republicans derailed his picks of Patricia Millett to become a judge on the US Court of Appeals for the District of Columbia Circuit and Representative Melvin Watt, Democrat of North Carolina, to lead the Federal Housing Finance Agency. The Senate voted 55-38 to end the delays against Millett and 56-42 to end the blockade against Watt — falling shy each time of the 60 votes Democrats needed to prevail.

Here’s a Republican response to the threat of the elimination of the filibuster:

No. 2 Senate GOP leader John Cornyn of Texas said he doubted Democrats would act on their threats, which they had been hinting at for days. He said if Democrats change the rules and Republicans win the White House and Senate, ‘‘Then we could confirm another Scalia, another Thomas with 51 votes,’’ a reference to conservative Supreme Court Justices Antonin Scalia and Clarence Thomas. ‘‘So I think they need to think twice, and I think they understand that.’’

Umm, Scalia was voted in 98-0 (talk about a terrible vote) and Thomas was voted in 52-48, so neither was filibustered. They both should have been, perhaps that’s what Cornyn means.

I don’t trust myself

This is great:

The free charter flight for Mitt Romney campaign volunteers seemed like an open-and-shut case for the six members of the Federal Election Commission.

A wealthy friend of Romney spent $150,000 to fly as many as 200 campaign volunteers from Utah to a fund-raising phone-a-thon in Boston.

The three Democrats on the FEC agreed with the agency’s staff that the charter appeared to violate rules limiting such “in-kind’’ gifts to $2,600 per election.

But the three Republican commissioners disagreed, saying Romney’s friend merely acted “in behalf of’’ Romney’s 2008 campaign — not the illegal “on behalf of” — and thus the flight was allowed.

With that twist of legal semantics, the case died — effectively dismissed.

I do have to agree with this Republican on the FEC:

McGahn’s opposition to disclosure is gaining popularity in conservative circles, notwithstanding the urging of the Supreme Court. McGahn contends revealing the identities of people who pay for political advertising has a chilling effect on political speech.

“It’s what do you fear more. Do you fear the potential influence that money could buy on policy, which no one has ever proven or is very attenuated? Or the ability of the incumbent politicians to know who is criticizing them and retaliate?

“I fear the government more than my fellow citizen,’’ he said, “so I come down on the side of protecting speech.’’

I certainly fear the influence of McGahn on the politics of the US. By the way, the real question is: do you trust government or big business more? The majority of the secret money doesn’t come from the likes of me, but from the rich and big business. And I trust government more than I trust big business.

If only there were some mechanism to adjust it

Tom Keane notices something:

One section was uniquely provocative: It subjected some states and a few counties to particularly tough scrutiny — called “preclearance” — if they wanted to make any changes to their voting rules. Even slight measures — moving a voting location, for instance — had to be submitted to federal authorities for approval. Moreover, the onus was on the jurisdiction to prove that the change wouldn’t affect voters on the basis of their race, color, or language. The list of “covered jurisdictions” was first drawn up in 1965. It was modified in 1970 and then again in 1975. Congress extended the law for 25 years in 1982, but didn’t change the list. The same thing happened again in 2006. So by the time the case challenging the law got to the Supreme Court, it had been 38 years since anyone had really thought about who should be precleared or not.

Preclearance is kind of a scarlet letter that proclaims one a bigot. Back in 1975, the nine states named — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — likely deserved to be shamed. So too did the handful of other areas (ranging from the Bronx to parts of Florida to three counties in California). But are all of those jurisdictions bad today? Probably not, and that, as Chief Justice Roberts pointed out in his majority opinion, is the issue; “the Act imposes current burdens and must be justified by current needs.”

Wow, that really is pretty bad. There must be no mechanism for updating the law, obviously. Oh:

As I have written before, this bail-out provision — and a companion “bail in” section roping intentional wrongdoers into a preclearance-like regime — connected the old problem to present circumstances.  Any jurisdiction not covered in 2006 was either never broken or was broken but healed.  Which means that any jurisdiction covered in 2006 was either healed but didn’t overly mind the costs of preclearance … or was not sufficiently healed.  The decision to re-up these jurisdictions in 2006 was emphatically a determination connected to 2006 information.

It is odd that bail-out — the logical relation that Congress did establish to connect forty-year-old facts to the present day — is all but absent from the majority’s decision.  It was mentioned three times at oral argument, but not by any Justice.  In today’s opinion, the Chief Justice mentioned it briefly in the course of reviewing the procedural history — including a review of the Court’s 2009 decision in NAMUDNO v. Holder that was all about bail-out.  But even though it should have been top of mind, there is no attempt in the substance of the opinion to confront bail-out as the living organism within the coverage formula, contracting coverage to suit present conditions.

Like the majority opinion, Keane’s article is notable for the lack of mention of the bail-out provision–especially because he mentions something similar:

Perhaps preclearance should be applied to all 50 states, making everyone equally subject to the scarlet letter. Or perhaps a simple, self-working formula could be developed for who gets preclearance or not. Disparities in voting rates between whites and minorities of, say, 10 percent, would automatically require preclearance for a county. Bring voting rates up, and preclearance would go away.

Given that might mean that a jurisdiction might be fine one election and not the next, given that different jurisdictions might have much different voting rates (if a county that is mostly minority has voting rates of 22% for minorities and 22% for whites, is that better or worse than a county that has voting rates of 70% for minorities and 85% for whites), given lots of other possible problems to his simple formula this particular formula might not work. Hmm, maybe something like:

Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go.

On the one hand, the Voting Rights Act lets federal courts add areas with real race-and-voting problems to the list. And it also lets a federal court take jurisdictions off of the list, once they have a clean record for 10 years.  These provisions are known as “bail in” and “bail out.”

Voting rights and marriage

The Supreme Court continues its streak of big rulings. On the plus side, it ruled that DOMA is unconstitutional and it declined to rule on a lower court ruling on California’s proposition 8, which means that same-sex marriage is now legal in California.

On the negative side it ruled that part of the Voting Rights Act is unconstitutional because:

The court majority said the criteria for picking states and other jurisdictions are based on decades-old data, and the suspect practices that prompted the law no longer exist. Literacy tests have been banned for 40 years. Voter registration and turnout in the nine states have increased dramatically. And African-Americans have been elected in record numbers to political office, including the presidency. The formula used for identifying states has “no logical relation to the present day,” the court majority said.

“Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were,” Chief Justice John Roberts wrote in the opinion. He was joined by the four other conservative-leaning justices – Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

What makes this interesting?

This stale formula is not the coverage formula actually in the law.  The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination.  But it did not end there.  It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to “bail out” of coverage.

As I have writtenbefore, this bail-out provision — and a companion “bail in” section roping intentional wrongdoers into a preclearance-like regime — connected the old problem to present circumstances.  Any jurisdiction not covered in 2006 was either never broken or was broken but healed.  Which means that any jurisdiction covered in 2006 was either healed but didn’t overly mind the costs of preclearance … or was not sufficiently healed.  The decision to re-up these jurisdictions in 2006 was emphatically a determination connected to 2006 information.

It is odd that bail-out — the logical relation that Congress did establish to connect forty-year-old facts to the present day — is all but absent from the majority’s decision.  It was mentioned three times at oral argument, but not by any Justice.  In today’s opinion, the Chief Justice mentioned it briefly in the course of reviewing the procedural history — including a review of the Court’s 2009 decision in NAMUDNO v. Holder that was all about bail-out.  But even though it should have been top of mind, there is no attempt in the substance of the opinion to confront bail-out as the living organism within the coverage formula, contracting coverage to suit present conditions.

Kevin Drum compares two Supreme Court rulings and notes:

So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.

Now go back to Robert’s argument that “Literacy tests have been banned for 40 years”. According to their decision in  Crawford vs. Marion County Election Board, it seems that this court would rule that literacy tests are ok. Also, remember that this case was brought by Shelby County, Alabama and that Alabama has shown that it needs oversight when it comes to voting.

More voting

There are a bunch of articles out there noting the Judge Roberts was probably wrong when he asked:

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

You can go here to find the actual numbers (I looked at the table: Reported Voting and Registration by Sex, Race and Hispanic Origin, for States: November 2010), although 2008 is better since that is the last Presidential election that has this information. If you look at the data it does seem that Roberts is wrong (it’s difficult to prove this since Roberts doesn’t say what data he is using).

There are a few things to note here:

  1. Massachusetts has had its problems with racism and voting, this shouldn’t be ignored.
  2. At this point in time, it seems there are more problems with Asians and Hispanic voting–the percent of citizens voting in the 2008 election were (the alone part is there because many people listed more than one race, that means these are not perfect statistics): white alone–64.4%; black alone–64.7%; Asian alone–47.6%; Hispanic–49.9%. The numbers aren’t out for 2012 (or I can’t find them), so it’s hard to say if this has changed (the percent of people who voted who were Hispanic was about 10% and 3% for Asians, but it’s difficult to get the percent of voting age US citizens who are Hispanic or Asian–from here, it seems to be 9.7% and 3.6%).
  3. It seems to me to be much more important that Roberts has a history of trying to get rid of the Voting Rights Act.

As an aside to that last point, note that the article links to this which negates one of the conservative justices arguments:

But in 2009, when an earlier challenge to Section 5 of the Voting Rights Act reached the Supreme Court, Roberts sounded a lot like Reagan during oral arguments. He echoed the late president’s view that Section 5 represented an unconscionable punishment for the South’s past sins. “Congress can impose this disparate treatment forever because of the history in the South?” Roberts asked the government attorney defending the law.

In his subsequent opinion in the 2009 VRA case, in which the court seemed close to striking down Section 5, Roberts wrote that the government had made the bailout provision “all but a nullity.” In the three years since that verdict, however, more than 100 jurisdictions have been allowed to bail out of Section 5—more than twice as many in the nearly three decades before. It’s not even that expensive to bail out; the usual cost is $5,000. The reason Shelby County hasn’t been able to take advantage of the bailout provision is that in 2006, county election officials redistricted the only black city council member in one of the county’s towns out of a job.

So, the Act has a built-in provision to wind down–as regions show they no longer discriminate they can petition to bail out.


The Supreme Court is looking at the Voting Rights Act. As usual, Scalia makes some stupid statements:

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

There are a couple stupid statements in this argument. First that being able to vote is a ‘racial entitlement’, I hope nothing needs to be said here. Second that a unanimous vote somehow shows that there’s a problem–perhaps in the past some people voted against it because they didn’t think discrimination was bad (I would think this would be obvious since some states were practicing segregation), but now everybody thinks it is? That can’t be it according to Scalia, it must be because of some kind of intimidation.

As noted here, I find it interesting that the Court (which would really be the conservative members) found that reporters who no longer phoned people to interview them had no standing:

to bring a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, a law that authorizes dragnet spying on US persons even absent identification of specific targets. (Another constitutional challenge to the law, Jewel v. NSA, is still winding its way through the courts.)

but that those same judges seem to no problem with Shelby County, AL having standing to challenge the formula of the Voting Right Act despite the fact that:

If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list.
If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list. If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.
I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.

I also like this comment by Justice Sotomayor in response the attorney arguing for Shelby County saying the law should not apply to the county any more because there is no longer any problems with registering voters:

Counsel, the reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. As the courts struck down one form, the States would find another. And basically, Justice Ginsburg calls it secondary. I don’t know that I’d call anything secondary or primary. Discrimination is discrimination.
And what Congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for discrimination.

The consensus seems to be that the Court will get rid of at least a major part of the act–it’s not like voting is a right, right?

Cry fire

Via here, this is a nice bit of history. We all know that freedom of speech is not absolute, we can not cry fire in a theater if there is no fire. Here’s where that was first used:

Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War.  Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917.  That summer, Schenck and his Philadelphia comrades launched a campaign against the draft.  They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it.  If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar.  One side proclaimed “Long Live the Constitution of the United States.” The other urged people to “Assert Your Rights!”

Schenck and his comrades made 15,000 leaflets and mailed most of them to men in Philadelphia who had passed their draft board physicals.  It’s unclear how many actually received the leaflet—hundreds were intercepted by the government—and no one produced evidence of anyone falling under its influence.  Even so, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.”  Two of the defendants—Schenck and another party leader—were found guilty.  Schenck’s case was argued before the Supreme Court in January 1919, and the Court’s unanimous decision to uphold the conviction, written by Holmes, was delivered in March.

Hm, it seems to me that this should be a protected right. Anyway, the post goes on to look at this bit from Justice Holmes’ judgement:

But it is said, suppose that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454,462. We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability
for words that produced that effect might be enforced.

It seems that Holmes might have been talking about this:

On Christmas Eve many of the striking miners and their families had gathered for a Christmas party sponsored by the Ladies Auxiliary of the Western Federation of Miners. The party was held in the second floor of Calumet’s Italian Hall. A steep stairway was the only way to the second floor, although there was a poorly-marked fire escape on one side of the building and ladders down the back of the building which could only be reached by climbing through the windows.

The tragedy began when there were over four hundred people in the room and someone yelled “Fire!”; there was none. However, people panicked and rushed for the stairs. In the ensuing melee, seventy-three people (including fifty-nine children) were killed. To date there has been much debate about who cried “fire” and why. It is conjectured that “fire” was called out by an anti-union ally of mine management in order to disrupt the party.

The article adds (the group of men was from the Citizens’ Alliance which was a lovely group):

On December 26, a group of fifteen men burst into Moyer’s hotel room.  The men “piled on me like a pack of wolves,” he later testified, “kicking and striking and cursing.”  A revolver accidentally went off, hitting Moyer in the back and shoulder.  The men grabbed Moyer and another union official, dragged them through town to the railroad station, put them on board a train for Chicago, and warned Moyer “if you ever come back to this district again we will hang you.”

The following day, local authorities arrested the editor and several employees of the local radical Finnish newspaper Tyomies, which first publicized the accusation that the Citizens’ Alliance had caused the stampede, and charged them with “conspiracy to publish mis-statements calculated to incite riot.”  Two weeks later, on January 15, 1914, the Houghton County Grand Jury indicted Moyer and 37 other unionists for participating in a conspiracy that “instituted a general strike…with the purpose and intent of causing and compelling the employees of the companies…to cease work and to shut down and prevent the operation of the mines.”  Nine days after that, the same grand jury refused to indict Moyer’s attackers.

So, Holmes uses the metaphor even though no one was punished for yelling fire. On the other hand, people are punished for striking which was illegal. This also comes up in the opinion of Holmes in Gompers v. Bucks Stove & Range Co where they decided that boycotts were also illegal speech (the case was dismissed because the Bucks Stove president had died).

If you look at these cases together, you might get the idea that Holmes’ idea of Free Speech was that it didn’t apply to socialists or unions.

Alito, Repulican justice

Well then, here’s Supreme Court Justice Samuel Alito:

His comments to the overwhelmingly conservative and Republican crowd were part of his broader analysis of arguments put forth by the Obama administration in recent years that Alito said would curtail individual freedoms in favor of stronger federal power.

He said opponents of the 5-to-4 decision have conducted an effective, but misleading, public relations campaign by stressing that the court extended free speech rights to corporations.

But Alito rattled off the names of the nation’s leading newspapers and television networks, all owned by corporations and possessing acknowledged rights to print and say what they wish about politics and government.

‘‘The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,’’ he said. ‘‘Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.’’

Hmm, sounds like he’s trying to mislead people. The main problem is money–this Supreme Court has said that money is free speech which means Bill Gates has about a billion more free speech rights than I do. Also, you would think a Federalist Judge wouldn’t say that inventing a right is ok just because not having it would cause problems. If corportations don’t have free speech rights then they can be given them by Congress. Here’s more.

Taken together, Alito said, the views put forth by the government begin to suggest a vision of society ‘‘in which the federal government towers over people.’’ He noted that in several cases, not a single justice endorsed the administration’s arguments.

It was not the first time Alito has taken on critics of the outcome in the Citizens United case. At President Obama’s State of the Union address soon after the court’s ruling in January 2010, the president said the court ‘‘reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.’’

Alito, sitting with five other justices, was seen to mouth, ‘‘Not true.’’

He also humorously recounted his experience at Yale Law School in the early 1970s when he was a student of constitutional law professor Charles Reich, who by then was more interested in American counterculture than the law.

He quoted from Reich’s bestselling ‘‘The Greening of America,’’ in which the author painted a frightening picture of a disintegrating society and called the era a ‘‘moment of utmost sterility, darkest night, most extreme peril.’’

Here, Alito paused and, to the delight of a crowd dismayed by Obama’s reelection, added, ‘‘So our current situation is nothing new.’’

It’s good to know that Alito thinks just like a partisan conservative Republican, I’m sure he only decides things on the merits of the case. And I hope Alito noticed that corporations spent a huge amount of money this election season.

Montana and corruption

At least part of Montana’s rules on campaign donations is still around, barely:

The 9th U.S. Circuit Court of Appeals reinstated Montana’s campaign donation limits, telling the federal judge who struck down the limits that the panel needs to see his full reasoning so it can review the case.

The court intervened late Tuesday less than a week after the judge’s decision opened the door to unlimited money in state elections – during the height of election season.

In response, U.S. District Judge Charles Lovell issued a 38-page conclusion Wednesday morning that reinforced his earlier decision finding that the state’s limits are too low to allow effective campaigning. He suggested the state Legislature would have a “clean canvas” to perhaps establish new, higher limits that could meet constitutional muster.

The 9th circuit did not immediately respond, leaving the state limits in place – for the time being. The legal back and forth came with less than a month until Election Day.

Montana was one of the states that had a campaign finance law overturned by the Citizens United decision:

The Supreme Court has struck down a Montana ban on corporate political money, ruling 5 to 4 that the controversial 2010 Citizens United ruling applies to state and local elections.

The court broke in American Tradition Partnership v. Bullock along the same lines as in the original Citizens United case, when the court ruled that corporate money is speech and thus corporations can spend unlimited amounts on elections.

What makes this ruling especially grating is the reasoning in Citizens United:

In his original decision, Justice Anthony Kennedy argued that independent campaign expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Ginsberg argued that the Montana case was an opportunity to reconsider “in light of the huge sums currently deployed to buy candidates’ allegiance.”

The Montana law was passed about 100 years ago because of specific, actual corruption:

 a law dating back to 1912, when the country was just beginning to stagger out  of its previous Gilded Age, that forbade corporate contributions to election  campaigns. This law was passed partly as a consequence of the activities of one  William Clark,The Copper King, who spent tens of thousands of dollars to buy  himself a Senate seat, back in the days in which this required the wholesale  purchase of state legislators, and did so in such an egregious and clumsy  fashion that the U.S. Senate tossed him out on his ear, Montana passed its law  and, eventually, the country ratified the 17th Amendment, providing for the  direct election of Senators which, as we have seen, has now led to the wholesale  purchase of U.S. Senate seats by corporate proxies, thanks to the nine wise  souls in Washington.

There’s more  here:

This article first details the extent of that corruption, which was so pervasive that in 1908, President Theodore Roosevelt’s Solicitor General, echoing Mark Twain, described Montana as a place “where open confessions of sales of political and even judicial influence were lightly looked upon. The article describes three examples that the Solicitor General likely had in mind. The first involved the election of copper king William Andrews Clark to the U.S. Senate in 1899. Clark won his election through a brazen bribery campaign that ended up being the focus of an investigation by the U.S. Senate, which forced Clark to resign a few months after taking office. The other two examples concern corrupt district judges elected in Butte in 1900, Edward Harney and William Clancy, who had been “bought and paid for” by another copper king, F. Augustus Heinze. Their numerous biased rulings in Heinze’s favor in some of the most high-stakes litigation in the United States had substantial impacts on the State and the Nation.

Mark Twain even got into it:

He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell. His history is known to everybody; he is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed’s time.

Anyway, I hope this little bit of campaign finance reform holds.

Sununu: I’m an idiot

I haven’t commented on a column by John Sununu yet because they’re all pretty idiotic. This one, though, is even stupider than most:

JOHN ROBERTS wants you to eat your broccoli. If you don’t, Congress just might tax you; and that’s fine with him.

Good news for all who favor smaller government? Not so fast. Under the administration’s secondary argument, the law “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.” Roberts concludes that the “penalty for not obtaining health insurance may reasonably be characterized as a tax” and therefore “within Congress’s constitutional power.”

That’s less a limit on government than a roadmap for squelching liberty. By this measure, Congress could demand almost anything as a condition of citizenship, with a penalty imposed for failing to comply. Not sure? Just replace the words “health insurance” with “vegetables” in the paragraph above. Simple, clean, consistent with the court’s ruling, and utterly outrageous.

Once the government takes responsibility for paying your health care bills, bureaucrats have the moral ground — and financial models — to justify ever-increasing intervention into what was once called personal behavior.

By this reasoning, a country that has national healthcare would have these types of laws and yet they don’t. Maybe the fact that anyone who proposed such a law wouldn’t stay in office? And the whole tax thing is just as stupid. There are lots of things that can be used as tax deductions (which means a tax increase for the rest of us). By this reasoning, there’s a tax penalty for renting, or not having kids, or not saving for retirement, or thousands of other things. It used to be that conservatives would rather have incentives than regulation and that’s exactly what this is–no one is going to jail if they don’t have insurance, there’s a tax incentive to buy it.

Oh, Sununu might want to ask Romney if this is a tax:

 Romney spokesman Eric Fehrnstrom said the presumptive Republican presidential nominee agrees with the Obama administration’s insistence that the “shared responsibility payment,” as it is called in the Affordable Care Act, should be described as a penalty, or a fee, or a fine — but not a tax.

Health care is constitutional

I was worried, but the Supreme Court has ruled that the Affordable Care Act is constitutional. President Obama should now make this one the central themes of his campaign, noting that Romney wants to get rid of it and has nothing to replace it with. Romney wants to go back to the old financial regulations that led to the current recession, he wants to go back to the old broken healthcare system, he wants to make enemies (of Russia and China among others), and he wants to back to President Bush’s agenda. Democrats should look at the bill now that it has been upheld and work to make it better.

Anyway, this is something to savor.

Pretending is the way to solve things?

This is one of the stupidest ideas I’ve seen in quite some time:

Perhaps it would be more constructive for the court to decide cases by majority vote and issue a single opinion in the name of the court without publishing the votes or opinions of individual justices.

By eliminating dissenting opinions, which are sometimes longer than the majority opinion, the justices could focus more on crafting one clear opinion than on framing contentious responses. Any loss of egocentric exposition or subjective satisfaction caused by ending separate opinions would be more than compensated for by the added force, weight, and dignity unified Supreme Court decisions could command. The focus would be upon the rule of law, not upon judicial personalities.

The problem is that the Supreme Court is no longer seen as unbiased and their favorability ratings are way down. The reason is pretty obvious:

Frequent fractured opinions — especially in controversial and politically charged cases, like election challenges, campaign financing, or strip search practices — create the impression that those decisions may be politically motivated or agenda-driven and do not deserve the same respect and vitality given decisions rendered by greater majorities. They lead to charges of judicial activism and result in increasing partisan intrusion into the judicial process. Too often significant decisions are determined by one swing justice, giving the impression that Supreme Court precedent can be influenced merely by filling a vacancy with the right judge.

If you change ‘create the impression’ to ‘show’  in the above passage (and make other, similar changes) then you see the problems. Most of the Supreme Court justices are now just as partisan as any other politician (and they are now politicians). This editorial does a better job of acknowledging the problem:

Protected by lifetime tenure, many have chosen to enter the political fray rather than insulate themselves from it. Their involvement with politically motivated organizations reflects a shocking lack of concern for the court’s image. All other federal judges are bound by the Judicial Conference’s Code of Conduct, which says they can’t engage in political activity and shouldn’t undermine their impartiality. But as a self-administering branch of the government, the nine justices have exempted themselves. They should reverse course, endorse the Code of Conduct, and forgo politics — for their own integrity, and that of the court.

This is the first of a series of editorials so I won’t pass judgement on it yet, but the article by Joseph Nadeau basically wants to deal with the problem by ignoring it. That won’t solve the problem, because some of the decisions (such as Bush v. Gore and Citizens United) are obviously due to partisan politics. Pretending that they’re not won’t change that.


The Supreme Court, in their Citizens United decision, said that money is speech, but even they thought that the name of the donors should be disclosed. Of course, Republicans are against it:

The bill is a reintroduction of similar legislation that came close to passing last Congress. That bill won 59 votes in the Senate in 2010, falling one vote shy of overcoming a Republican-led filibuster.

Their reason (ok, the reason the Chamber of Commerce is against it):

The U.S. Chamber of Commerce, a powerful lobby force and a heavy political spender, was a vocal opponent to the Disclose Act last Congress, and attacked the new bill as a “politically-motivated” attack on free speech. 

”It is unfortunate that certain politicians want to single out and stifle the speech of one group — the business community — under the guise of ‘disclosure.’ This is a transparent, politically-motivated effort to seek out and punish a competing viewpoint in the political discourse,” said Blair Latoff, a Chamber spokeswoman.

Ya see, this is democracy in action (via here):

An anonymous donor gave $10 million late last year to run ads attacking President Obama and Democratic policies, escalating the money race that is defining the 2012 presidential campaign. And in the new, free-wheeling environment of independent political giving, the identity of this donor, like many others, is likely to remain a permanent mystery.

The donation went to Crossroads GPS, the conservative nonprofit group founded with the support of political strategist Karl Rove. Another donor gave $10 million in the 2010 midterm elections, according to draft tax returns that provide the first detailed look at its finances.

Crossroads GPS and its sister group, American Crossroads, hope to spend up to $300 million in the 2012 election cycle,promoting conservative ideas and helping elect Republicans up and down the ballot.

The tax returns show that Crossroads GPS has collected the vast majority of its donations from the super-rich. The forms show that nearly 90 percent of its contributions through the end of 2011 had come from as few as two dozen donors, each giving $1 million or more. Overall, the nonprofit group raised more than $76 million since it was founded in May 2010 through the end of 2011.

At least it’s the way democracy should work according to corporations. They should be able to say and do anything they want with no repercussions and since disclosure of political donations could affect sales, there shouldn’t be disclosure. On the other hand, many of us think that with rights come responsibilities–I have a right to speech, but others have a right to respond. And we think unlimited anonymous money in politics has a corrosive effect on democracy, which is why we, at a minimum, think the large donors should be disclosed. If you agree, sign the petition to try to get the DISCLOSE act passed.

Rick Hasen talks about the Senate hearings here.

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