No, Photographers Do Not Have a First Amendment Right to Discriminate

From the ACLU, this report on the recent SCOTUS decision to not hear a case in which a photographer claimed a first amendment right to discriminate against customers seeking to hire her to chronicle same sex wedding ceremonies:

"When you make the decision to hold yourself out as a business that serves the general public, you have to be willing to actually serve the general public, which includes a diverse group of people whose values and beliefs may be different than the values and beliefs of the business owner. Selling commercial wedding photography services, like selling a wedding cake or a flower arrangement, does not mean that a business owner endorses a customer's marriage. Everybody has the right to express their views on whatever subject they wish, and that includes business owners. But every business has to play by the same rules in the public marketplace."

I suppose that in a time of truly ridiculous judicial decisions, this is a faint sign of sanity!

The Court, Actual People & the Individual Mandate

If you are offended by the notion that Obama's jerry-rigged health insurance reform package would compel you to buy insurance I recommend you read this Op-Ed by political scientist Andrea Campbell. The story she relates - about a devastating accident her sister-in-law has experienced and its financial consequences - demonstrates directly at how idiotic the SCOTUS justices will be should they overturn the legislation. The notion that the young and healthy can simply decide when they are at risk - and then rush out to buy insurance - is simply ignorant.

My son Jeffrey died five years ago this week. As regular readers will know, he basically dropped dead of a burst aneurysm in his brain. He was 14 and otherwise remarkably healthy. The bill for the few days Jeffrey spent in the ICU? Hundreds of thousands of dollars.

Fortunately when Jeff died, he had insurance coverage through my work. So the irreparable hole he left in my heart was not compounded by financial ruin. Jeff's situation nonetheless resembles the one that has befallen Campbell's sister-in-law. There was no warning that he would drop dead. There was no way to diagnose his malady. Indeed there was no reason to suspect he had an aneurysm or that it would burst. In other words, there would've been no way for he or I to pop out to the insurance store and pick up a policy. The mere fact that the Scalia and like-minded SCOTUS justices can contemplate such an eventuality suggests they have no business occupying a seat on the court.
__________
P.S.: I should make it clear that Jeff was just one parent away from having no insurance. His mom's job at the time offered none. What we actually need is not the sham Obama reforms. cobbled together to satisfy the perverse preferences the rich and powerful, but (like much of the rest of the world) an actual single payer system that would prevent people like Andrea Campbell's sister-in-law from existing at the mercy of coffee can social policy.

Reality Based Politics - Obama is Not (Even) a Liberal

This cartoon nicely highlights the hypocrisy of the SCOTUS ideologues. But that is sort of like shooting ducks in a barrel. It allows liberals to be all too self-satisfied in objecting to the recent SCOTUS ruling allowing strip searches for those arrested on charges of, say, walking their dog in violation of leash laws.

Reality: "The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses." (The Guardian - here.)

While "liberals" may find the SCOTUS majority abominable, Obama cannot be considered a liberal. Or, if liberals embrace Obama, they cannot be too vocal about the SCOTUS ruling.

The Warren Court?

In light of my earlier diatribe about the Supreme Court, there is a revealing portrait of Elizabeth Warren here at In These Times. The author nicely warns us off of canonizing Warren as too many (blindly) did with Obama. The two adopt approximately the same centrist views on many social issues. But Warren is significantly more progressive on economic matters that our hoper-in-chief. One interesting point is that Warren is a high-powered lawyer who has actually experienced the hardships and demands of "normal" life - in ways that the boys on the right edge of the court have not. Here is a promising nominee to the Court should Obama get another bite at that apple.

Political Science Confirms the Obvious - the Current Supreme Court is Dominated By Right-Wing Ideologues

The not-so-new-news in this post at The New York Times is that the U.S. Supreme Court, as currently constituted, is as conservative as it has been in nearly a century. This is a topic about which I have commented numerous times here before. In anticipation that the Court is about to overturn the Affordable Care Act (of which I am not a big fan*), it is important to point out that should they do so, the Court will be demonstrating both well-studied ignorance of the economics of insurance markets and an astoundingly poor grasp of sound legal reasoning.

There is no surprise in all this. Republicans have been appointing ideologues to the court for decades. Democrats have let that happen and have appointed centrists when the opportunity has arisen. So now the ideologues on the court are doing just what they were appointed to do - they are acting like ideologues for whom accumulated knowledge and sensible reasoning are no barrier to getting the outcome they seek.
__________
* The primary issue in the current case revolves around the "individual mandate" which we have, you'll recall, because the Obama administration decided to play footsie with the insurance companies rather than actually try to reform the provision of health care in the U.S.; when the court overturns the Affordable Care Act they will be supplying the best "practical" argument yet for implementing a single-payer national health care system.

The Thomas Court?!?

"In several of the most important areas of constitutional law, [Clarence] Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

[. . .]

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society."

That is the thesis of an essay by Jeff Toobin in The New Yorker this week - you can find it here. The essay examines the possibility that Clarence Thomas's vision may be the undoing of Obama's health-insurance-reform-law. Perhaps Cornel West is not criticizing the most influential "Brother" in American politics after all?

Another Crystal Clear Indication that Obama is (at best) a Right Leaning Centrist

The Obama Administration won a court decision today (hopefully not a final one, but given the reactionary make-up of SCOTUS, there is at best a fleeting hope that this decision will be reversed) by invoking "state secrets" as a defense against detainees who have been tortured by the CIA in black sites around the world. You can read the report in The New York Times here. The delicious part appears in these paragraphs:

“The administration’s aggressive national security policies have in some ways departed from the expectations of change fostered by President Obama’s campaign rhetoric, which was often sharply critical of former President George W. Bush’s approach.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.”

The understatement is obvious. For those who are 'disappointed' that the putatively progressive Obama is constrained somehow from putting his true political aspirations into effect this case should be a clanging whack upside the head. If Obama were a progressive this case would not exist. His administration is resisting the efforts of individuals seeking justice and he cannot blame this on the Republicans. His administration is saying 'you don't even get your day in court ... we want the torturers to be immune from any recourse ...'. This is shameful.
__________
P.S.: (Added early the next day) ~ As I re-read this this morning there is something else. Does it need saying that the appeals court panel (11 judges!) in San Francisco who made this decision on a 6-5 vote are shameful as well. They sold the constitution down the river.

P.S. 2: Even The New York Times sees this more clearly than our political leaders ~ "Torture is a Crime, Not a Secret." Just So.

The Supreme Court, Right Wing Politics, and What Your Grandmother Knows

"The American people expect a justice who will impartially apply the law, not one who will be a rubberstamp for the Obama administration or any other administration ... " ~ Mitch McConnell (R Kentucky)

"Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. . . . Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. " ~ Orin Hatch (R Utah)

"The worst kind of thing you can say of a judge is he or she is results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires." ~ Elena Kagan

I am not a fan of Elena Kagan. More precisely, I am not a fan of her nomination to the Supreme Court. I think that Obama ought to have nominated someone who might offset the ridiculously partisan gang of five right-wing justices who already sit on the court, someone who would not just vote against them, but call them out when that needs to be done (with, of course, all of the professional niceties that judicial discourse imposes). Obama would never do that. He nominated Kagan, to solidify the resolutely centrist coalition of justices who pass for "liberals" on the current court.

The problem is that no one involved in the current nomination proceedings seems able to grasp what your grandmother knows without too much thought: Kagan resembles a "progressive" only in the context of right wing judicial politics. You can find yet another example of the consistent right wing "activism" of the current court majority (for earlier ones see [1] [2]) in a recent report from the Constitutional Accountability Center. It documents the remarkable coincidence that the right wing of the court - Alito, Roberts, Scalia, Thomas and Kennedy - vote to support corporate interests in an overwhelming majority of relevant cases. (Alito virtually never votes in any other way!) Here is a summary of the results:

"To test empirically the idea that the five conservatives on the Roberts Court tend to side with corporate interests, at least more than their colleagues do, we have examined, for those cases in which the United States Chamber of Commerce participated as a party or as an amicus curiae, every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions in early 2006 through May 2010 ‐‐ a universe of 53 cases ‐‐ and we tracked the votes of each Justice in each of the cases. Over that period, a cohesive five‐Justice majority on the Court has produced victories for the Chamber’s side in 64% of cases overall, and 71% of closely divided cases.

Results

The data support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives tilting more decisively toward the Chamber’s position than the Court’s remaining justices tilt in the other direction. The members of the Court’s conservative majority (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas) were very close together in their overall support for the Chamber’s position. Justice Kennedy does not “swing” much in business cases: he supported the Chamber 67% of the time, close to the voting pattern of Justice Alito, who had the highest percentage support for the Chamber ‐‐ voting for the Chamber’s position in 75% of the cases. This cohesion has produced an overall success rate for the Chamber of 64% (34 victories in 53 cases). The Court’s moderate/liberal “bloc” (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist: collectively, the Court’s conservative “bloc” (Roberts, Scalia, Alito, Thomas, and Kennedy) cast only 29% of their votes against the Chamber, while the moderate/liberal bloc cast 41% of its votes in favor of the Chamber.

Cases Decided by a Narrow Majority

Obviously, not all business cases are the same. Some of these cases apparently were not difficult for the Court to decide, at least in terms of the ability of the Justices to reach consensus. Indeed, more than one‐third of the business decisions we examined were decided by a unanimous Court; the Chamber won 11 of those 19 cases (58%). At the other end of the spectrum, about one‐third of the cases in our survey sharply divided the Court, and it is in this subset that ideological voting is most pronounced. These cases include all of the blockbuster rulings decided during the period of this study, including Citizens United v. FEC (2010), Ledbetter v. Goodyear (2007) and Massachusetts v. EPA (2007). Of the 17 cases decided by a five‐Justice majority, 12 (71%) resulted in victories for the Chamber. In these cases, the conservative bloc voted for the Chamber 84% of the time, compared to only 15% for the moderate/liberal bloc. Strikingly, in these close cases, Justice Alito never cast a vote against the Chamber of Commerce’s position."

No doubt our Republican Senators will decry the "rubberstamp" quality of that voting record! And soon-to-be-Justice Kagan will simply sit on her hands while her colleagues continue "picking sides" more or less solely in keeping with their conservative ideology.

This pattern of voting will surprise no one. Not grandma, anyhow. The study documents the pro-business voting pattern of the right leaning justices and it suggests that while their voting is extreme and partisan, the "liberals" tend to be centrist. Once again we can finger the Republicans as the source of political extremism. My point is not to suggest that we should expect the right-wingers to vote any other way. What we should expect is for a putatively "progressive" president to appoint a progressive justice. Everyone else is playing politics; why can't Obama advance a progressive agenda? Hint: Because he is not a progressive.

Obama Shifts Court to the Right

So, Obama plans to nominate Elana Kagan to replace Justice Stevens on the Supreme Court. Kagan is better than we would have gotten from John McCain; but, then again, Stevens would likely not have retired had McCain been president. But from the allegedly "progressive" Obama, Kagan is a poor choice. While The New York Times uses the words "pragmatist" and "progressive" to describe Kagan, it is not clear what they know that the rest of us don't. She may well be an opportunist; her record, to be polite, is troubling. In particular, she demonstrates no willingness to confront, let alone attempt to rein in, executive power [1] [2].

From my perspective, it is not difficult to see what Obama hopes to gain. The notion that he is courting Republican votes in the Senate by appointing a 'moderate' is a joke. The Republicans are pretty much unwilling to cooperate on any issue. Given their inevitable resistance, so the reasoning goes, he ought to have gone ahead and appointed a progressive or even a real pragmatist. That, of course assumes, he is being strategic here and not simply appointing his ideal candidate. He is doing the latter. This appointment should lay to rest any suspicion (hope?) that Obama is anything other than what he is - a center-right opportunist [3]. Having set the agenda, conservatives should, if not celebrate, at least be smugly satisfied.

The Metaphysics of Campaign Finance

Metaphysics is a branch of philosophy concerned with the ultimate or basic or fundamental structure of reality, in particular the sorts of entities that constitute the world. It is by definition non-scientific coming, as the label suggests, after physics. Last week the U.S. Supreme Court in its decision in Citizens United v. Federal Election Commission, illustrated how law is shot through with bizarre metaphysical assumptions. Those metaphysical assumptions underwrite a set of political practices that, to say the least, are dubious. In this column at The Nation Patricia Williams holds the Roberts-Alito-Scalia-Thomas-Kennedy sect up for the ridicule they so richly deserve.

Pragmatic Contradiction (or, None Dare Call it Hypocrisy!)

These are the sorts of situations that arise when one defends a particular theoretical position that one then belies in one's actual life. My favorite example is how, in the mid-1980s, libertarian philosopher Robert Nozick went to court to protect his rent-controlled Cambridge apartment - after voluntarily signing a lease agreeing to pay rent above the rent-controlled rate. (See "Anarchy, State, and Rent Control," The New Republic Dec. 22 1986 pages 20-21.)

Currently we are witnessing a similar sort of contradiction. This time the perpetrator is Supreme Court Justice Anontin Scalia. It turns out that Scalia, who has expressed rather cavalier views about the privacy of personal information that might be gathered from the Internet, is perturbed that students in a course on Information Privacy Law at Fordham Law School have completed a class assignment that produced a 15 page "dossier" on Scalia gathered from information freely available on the Internet. The dossier (which has not been made public) allegedly contains information ranging from the Justice's home address and phone number to pictures of his grandchildren to details of his food preferences. A report from the ABA Journal is here; you can find various other blog discussions here and here and here and here. Scalia is complaining that the course instructor - who came up with the assignment in response to public comments the Justice has made about the privacy of personal information - has been irresponsible and shown "abominably poor judgement."

I simply do not see that Scalia has any complaint. Some of Scaliia's admirers, however, apparently think that he has shown great consistency and character because he has not taken legal action against the professor. But if it is, as Scalia publicly stated, "silly" to worry about others gathering any information about oneself from the Internet - unless the information somehow is embarrassing - he really ought to have shrugged this off completely. Silly is as silly does.

Although Nozick remained something of a libertarian, he eventually came to admit that the arguments he presented in Anarchy State & Utopia are "seriously inadequate." Unfortunately, Nozick reconsidered too late for all those whose lives have been impacted by free-market policies gleefully implemented by ideologues influenced by his "inadequate" arguments. Perhaps Scalia will reflect just a tiny bit and see that his views on privacy are problematic for others not just for himself.

Moving the Courts

The news late yesterday that Justice Ruth Ginsberg has undergone surgery for pancreatic cancer (her second bout of cancer in a decade) has, somewhat morbidly, raised the question of whom Obama might appoint to the court. The speculation about a replacement brings to mind the Monty Python skit that I've mentioned here before in which an ailing peasant repeatedly and loudly objects "I'm not dead!" as his neighbors try to dispose of his body. Indeed, Ginsberg is still with us and I hope she recovers fully.

It is nonetheless worth thinking about the general strategy the Obama-ites ought to adopt toward judicial appointments. This graphic from a recent piece in The New York Times summarizes research about which I've posted here before. The research conducted by a pair of reasonably right-leaning law professors at the University of Chicago, details just how far to the right our current court has swung. This is due to the fact that Republican presidents have appointed extremists and Democrats have appointed moderates. The upshot? Each member of the five court majority on the Roberts court is among the top ten most conservative justices ever (correction: since 1937) based on analysis of their actual voting records.* Of the sitting justices, only Ginsberg is (barely) among the top ten most liberal justices. (I do not know this for a fact, but I would wager that the rightward shift has been even more pronounced on the various lower level federal courts.)

The situation is outrageous. Obama needs to use whatever appointments might come his way to redress the extremist trend in the court. That would mean appointing one or more justices further to the left than Ginsberg, regardless of whom they might be replacing. and it means looking hard at the lower courts and deploying a strategy that will bring not just moderate, but left-leaning judges to the bench.

A pragmatist, after all, is not concerned with consensus, but with the robustness of debate and therefore with insuring a wide range of views can find expression therein. Put otherwise pragmatists are properly concerned with the uses of disagreement. And at this point the courts are a sure bet.
__________
* You'll note from the graphic that the most recent departures from the court - O'Connor and Rehnquist - also were among the top ten most conservative.

Clear Reasons to Vote Democratic (1a) ~ Against Judicial Acticism

In a speech in Winston-Salem, the Arizona senator said he would 'look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.'

'I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference,' McCain told an audience at Wake Forest University." ~ Reuters (6 May 08)

The problem, of course, is that our current conservative justices in fact are extremists who lack much notion of the limits of "judicial restraint." I posted on the extremist thing a couple of days ago. (Remember, McCain's favorites - Alito, Rehnquist & Roberts - are among the five most conservative justices of the past seven decades as judged by their voting records on economic and civil liberties cases.) So today let's focus on the dreaded curse of judicial activism where, it seems, our putative conservatives are serial offenders.

There is plenty of plausible evidence that our conservative extremists are also, despite the rhetoric of the right, activist judges. In other words, research reveals that, the "conservatives" are more likely than their relatively more liberal counterparts to overturn precedent, and to overturn enactments of the U.S. Congress. The 'liberals' are more likely to be activist in the face of state legislation. You can find a summary of such research in this OpEd from The New York Times a few years back (see this comment too). You can find more such evidence of more recent vintage here. Of course conservatives don't like this evidence. They prefer to argue by persuasive definition, assuming that activists must be liberal. You can get a feel for the terms of the debate in this exchange [1] [2].

Clearly, the Court should be in the business of overturning some legislation - whether State or federal - if it deems it unconstitutional. No party to this dispute denies that. (My "clearly" should not be misread what we might call judicial review idolatry; the practice of judicial review in the U.S. is, like most political institutions, simply a by-product of strategic interaction among politicians - Marshal and Jefferson in the early 19th Century.) The studies I cite above suggest that our "conservatives" have a real pronounced propensity to impose their views over the outcome of legislative processes. But the evidence of extremist voting on the part of our current conservatives that I mentioned a few days ago surely makes one raises serious questions about just what is driving their activism - a principled view of the constitution or flat out political preferences. I know where my own extremist vote lands on that one.

McCain has made it clear that, given a chance, he will appoint more justices who are right-wing-extremists and who are activist in that cause. Why would you vote for him? Why would you vote for a third party candidate when that arguably would only improve McCain's chances of winning?

Clear Reasons to Vote Democratic (1) ~ Those Legal Extremists of the Right

Richard Posner & William Landes from University of Chicago Law School - neither of whom run much risk of being mistaken for a political liberal - have posted this paper at the Social Science Research Network. In it (see Table #3) they rank the 43 Justices who've sat on the U.S. Supreme Court during the seven decades from 1937 through 2006 from most conservative to most liberal. Posner and Landes consider all votes in non-unanimous decisions in the areas of economics and civil liberties. They discover that 4 of the 5 most conservative justices during this entire period (Thomas, Scalia, Roberts & Alito) currently sit on the court. The fifth member of the top five (Rehnquist) only just left the court. Moreover, the current swing voter (Kennedy) as well as his immediate predecessor in that role (O'Connor) both are in the top ten most conservative Justices during this period. Kennedy only casts a conservative vote in these cases two-thirds of the time. The four horsemen of the right each vote conservatively from 74% to 82% of the time. By contrast only a single member of the current court (Ginsberg at #35) is among the top ten most liberal Justices. This sort of information surely gives the lie to the notion that the current court is simply driven by "the law." In this post over at Balkinization Brian Tamanaha wryly notes:

"It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, that Roberts "calls balls and strikes," and that Alito strictly "applies the law." I wonder what their numbers would have looked like had they gone ahead and voted their political views."

It certainly is reassuring. It ought to stiffen the resolve and dampen the bi-partisan collegiality of Senate Democrats in future confirmation proceedings. It also ought to dissuade all those progressives who are tempted to do something silly and vote for, say, Nader next fall [1] [2] or all those supporters of Barak/Hilary who insist that they won't vote for the other should their preferred candidate not get the nomination [3]. This alone ought to be enough to get everyone from center to the left to "hold-your-nose" in the upcoming election

Erecting Legal Barriers to Democracy

The decision by the U.S. Supreme Court to uphold a restrictive Indiana Law regarding voter identification is truly idiotic. You can find the news report here.

The bill, enacted on a party line vote by the Republican dominated State Legislature requires each voter to present a state issued photo-ID before voting. The alleged point of this reform is to make it more difficult for someone - say me - from pretending to be someone else - say you - in order to steal your vote. Let's place aside the probability that your vote will come close to having an effect on electoral outcomes, let alone a pivotal effect. Let's inquire as to the point of all this.

Unfortunately for their argument, the Republicans could not identify a single reported case of someone trying to cast another person's vote. Ever! So this legislation is "fixing" a "problem" that doesn't exist. The Supremes admit as much. They - both the Republicans and the Supremes - also discount entirely the actual and transaction costs involved in obtaining such an ID among the poor and elderly in a state that, politely, is difficult to navigate via public transportation. The consequences of this decision are predictable. So, by upholding this unjustified "remedy," the Supremes placed the burden on those least able to bear it. Well done! That is the way one should operate a democracy.