Tag: supreme court

King Denied

The Supreme Court has just ruled 6-3 that the Obamacare subsidies apply to states that do not run their own exchanges, thus upholding a major provision of the law. I’ll post more when I have time. Discuss.

One thing I’ll note: I was not surprised. The Roberts Court really hates to overturn legislation. They prefer to let legislators do that. The theme from Roberts in the two Obamacare decisions is basically this: if you want to repeal, repeal the law. We’re not going to do it for you.

Update: The more I think about it, the more I think the Court reached the right decision here, much as it pains me to say so. I don’t think King’s case was “ridiculous” as many liberal pundits opined. It’s never ridiculous to argue that a law should be interpreted as it was written. But I do think it was the language was ambiguous enough and the intent of Congress during the debates plain enough for the Court to defer to them. The message from the Court, as I noted above is “we’re not going to repeal Obamacare for you”.

(And I think the GOP is secretly grateful. As Thrill pointed on Twitter, this decisions basically saved them from having to repair the law.)

The way forward is pretty clear: replacing Obamacare becomes the key GOP electoral issue in 2016. The law, as Justice Roberts noted in his majority opinion, is still a mess. While the number of insured has been reduced, there has been no improvement in overall health. It’s saving some people from crippling financial bills but at enormous cost. And we are still in very real danger of an insurance “death spiral” that will destroy the individual market.

The shape of that replacement is up in the air right now. I prefer a bill that eases the link between insurance and employment, allows insurance to be sold across state lines and encourages the kind of high-deductible insurance that has been shown to reduce healthcare costs with little impact on overall health. But we’ll see what happens. The Court has put the ball into the GOP’s court. Let’s hope they don’t step on it and fall on their ass.

Update: You should read Scalia’s blistering dissent. It’s vintage Scalia, complete with saying the law should now be called “SCOTUScare”. It makes good points, I think, and shouldn’t be dismissed.

Update: Doug Mataconis explains the Court’s reasoning:

As Chief Justice Roberts noted, Courts have always been deferential when it comes to statutory interpretation in order to ensure that Judges are not substituting their judgment for elected representatives. The fact that there is a drafting error, or that language in a bill that was more than a thousand pages long is inexact in some way should not necessarily mean that a Court must interpret a law in a manner that brings down an entire statutory scheme. The alternative would be a world where the lack of a single word, or an in-artfully drafted sentence, would bring down an entire law, and that’s never been the way the Courts have interpreted statutes. In my past comments about this subsidy issue, I’ve been somewhat sympathetic to the argument of the Plaintiffs in this case, but reviewing the pleadings and the oral argument in this case have caused me to reconsider that position. I’m still not a fan of the PPACA, and I think that it’s going to create long-term economic incentives that will make health care more expensive rather than less expensive, but that is a policy matter not a legal one. As it stands, it seems clear to me that the Justices in the majority got it right.

The Best of Lee: Kelo Anniversary

Ten years ago today, the Supreme Court issued out of the worst ruling in their history: Kelo v. City of New London, in which justices Kennedy, Souter, Ginsberg, Breyer and Stevens decided that it was “public use” for a government to force a citizen to sell his property to a rich developer. Because taxes.

Here’s some choice quotes from the wonderful dissents of Clarence Thomas and Sandra Day O’Connor. Thomas first:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent.

The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

O’Connor:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The irony is that the deal with Pfizer fell through and Kelo’s former home is still an empty lot.

Lee’s comment was short and brutal:

Personally, I would love to see one of the homes of these justices earmarked for demolition because some douchebag on a city council somewhere has decided that the revenue from a new Wal-Mart Supercenter is more important to the community than the property tax being paid on the land that has been in your family for six generations. Simply disgusting. When the highest court in the land wipes its ass on a concept as fundamental to human liberty and dignity as the right of property there is something seriously wrong with our government.

The government’s assault on property rights has only gotten worse. Yesterday, SCOTUS pushed back a little. But it will not really begin until the Court repudiates Kelo.

Raisins in the Sun

This morning saw the Supreme Court hand down four more decisions. All were important to some degree but the most significant was one I blogged about earlier: Horne v. Department of Agriculture. The Court decided, correctly, that the government taking part of someone’s raisin crop to ostensibly raise the price of raisins was indeed a “taking” under the Constitution and they are entitled to compensation.

Somin:

The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.

This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision. For reasons elaborated in detail in an amicus brief I joined along with other constitutional law and property scholars, the government’s position on this issue was deeply at odds with the history and original meaning of the Takings Clause. Indeed, as the Court notes, the Clause was adopted in part as a reaction to abusive British confiscation of personal property during the colonial era and the Revolutionary War.

The government argued that it wasn’t really a taking because if they later sold the raisins, the Hornes would get some of the proceeds. This was clearly nonsense. If I steal your car and later give you a cut of what I got from the chop shop, that doesn’t mean I didn’t steal it in the first place. The justices were a little more divided on how to compensate the Hornes.

This is a big case, though. Somin again:

The ruling also calls into question a number of other similar agricultural cartel schemes run by the federal government. In addition to property owners, consumers of agricultural products are likely to benefit from the decision, if these cartel schemes can no longer operate. Freer competition between producers in these agricultural markets will increase the amount of goods sold, and thereby lower prices. Lowered food prices are of particular benefit to poor and lower-middle class consumers, who generally spend a higher proportion of their income on food than the affluent do.

A few years ago, Robert Levy published a fine book called The Dirty Dozen, detailing some of the worst Supreme Court decisions of the last century. One of them was Wickard v. Filburn, in which a unanimous Court decided that a man growing wheat on his own farm for his own use was intrinsically “interstate commerce”. Wickard is the basis not only of our idiotic farm policy, but the basis of the Court’s expansive view of the commerce clause, including the vile Raich decision.

This doesn’t attack Wickard but it’s the first pushback on agricultural policy in a long time, at least recognizing some limits to the power of the Department of Agriculture. Hopefully, it’s the first in a series of decisions.

More from Mataconis and from McArdle, who cautions against optimism:

However, don’t get too excited, because it doesn’t do too much to limit eminent domain where compensation is offered, or “regulatory takings” in which government rules make your property practically worthless, but not quite so worthless that it has to pay you for the lost potential uses.

Indeed. Our federal government has a tremendous amount of power that has goen well beyond its Constitutional limits. Today, a little bit got pushed back. That’s a good day.

Court Season

The Supreme Court is set to issue a number of landmark ruling this month (saving them for the end of the session, as usual). You can read Doug Mataconis or Evan Bernick for good conservative takes. I’ll do quick hits with how I think the Court will rule and how I think the should rule. And, of course, as each ruling comes down, I’ll put up a post.

The thing about the Roberts Court is that they are very conservative. Not in the political sense, but in the temperamental one. They prefer not to make broad sweeping decisions that upend masses of law and precedent. They tend to defer to legislatures. They like to rule narrowly and specifically. Roberts works very hard to build consensus (see last year’s slew of 9-0 decisions). They have been slow to defend civil liberties except for the First Amendment. So while I expect some landmark decisions, I don’t expect any that will radically reshape the law.

I do expect, however, to hear the losing side of several cases scream that the Court has exercised unprecedented power, set fire to the Constitution and brought plagues of locusts. Whichever side they oppose will be acting in a purely partisan fashion while their side are zealous defenders of the faith. You can decide if that hysteria is warranted.

Read more… »

Turkeys and Drumsticks 2014

For seven years running, I have taken advantage of the Thanksgiving Holiday to give out my awards for Turkey of the Year and Golden Drumsticks. The latter are for those who exemplify the best traits in our public sphere. The former are for those who exemplify silliness and stupidity. I rarely give them out to someone who is evil; they are reserved for those who regularly make me shake my head and wonder what they’re thinking. It’s a sort of “thank you” for making blogging easier.

We’ll start with the Turkeys of the Year. For reference, the past winners are:

2007: Alberto Gonzalez, Nancy Pelosi, Hugo Chavez

2008: Sarah Palin, Sarah Palin’s critics, Hillary Clinton, Congress, Joe Biden

2009: Mike Steele, Glen Beck, the State Department, Sarah Palin, Andrew Sullivan.

2010: Janet Napolitano and TSA, Nancy Pelosi and Harry Reid, MSNBC, Lower Merion Schools, California Voters.

2011: Nancy Pelosi, Republican Presidential Field, Occupy Wall Street, Anthony Weiner, the Eurozone.

2012: The Culture Warriors, Unions, The Poll Unskewers, Debbie Wasserman-Schultz, MSNBC

2013: Healthcare.gov, the Platinum Coin, the Shutdown Caucus, the National park Service, Fiscal Cliff Panic Mongers.

For this year, I picked:

Jonathan Gruber: #3 was in the lead most of the year. Then #2 took over earlier this month. But the millionaire consultant from MIT has to take the top prize now. The thing about Gruber is not that he made comments that support Halbig. It’s not that he helped create Obamacare. It’s not even that he called the voters stupid. It’s that he revealed the ugly reality that undergirds of much of the progressive movement in this country: the belief that Americans are stupid, that leaders are wise and that the latter must lead the former to good choices through deception, obfuscation and coercion. The most common thing I read on liberal message boards after Grubergate was “Hey, he’s right!” There is a large section of the Left Wing that thinks we need to be ruled by a technocratic elite. Gruber pulled back the veil. And that he looked like a horse’s ass into the bargain was just gravy.

Lamenting Democrats: In the wake of yet another electoral shellacking, the professional whining class went into overdrive, trying to find something, anything to blame for their loss. Random articles about science topics would start with lamenting that evil Republicans were taking over the Senate. Robert Reich screamed that Republicans might use reconciliation to do stuff (reconciliation being a legitimate tactic up until November 3). A thousand articles sprang up about “how to talk to your crazy right-wing uncle/parents/cousin/neighbor/imaginary friend at Thanksgiving about Issue X” (hint: don’t).

I’ve been disappointed by elections. But I hope I never get to the point where the results of an election make me gnash my teeth and rend my garments in such hilarious fashion.

Barack Obama: The only reason his approval ratings aren’t at record lows is because of mindless Democrat loyalty. The economy continues to improve despite the Republicans rejecting every “jobs bill” he proposes. His party got crushed in the election. And his response to this was to … implement immigration reform through executive action (polls show Americans support the policy, but oppose the means). His White House is also becoming famous for what are called “bad optics” and would be called scandalous if Bush were doing it: fund-raising while the Ukraine is in turmoil, having a huge dinner while Ferguson is burning, golfing right after a press conference on an ISIS beheading. He has earned the low poll numbers. And earned a place on this list.

Jim Ardis: Earlier this year, Ardis persuaded a judge to launch a raid on a house because one of the inhabitants was … mocking him on Twitter. He apparently still thinks this was a fine idea. Jim Ardis … meet the Streisand Effect.

(One infuriating note: a judge has upheld the drug charges that resulted from the raid finding drugs in the house. Because warrants to arrest parody account holders are apparently just fine.)

Paul Krugman: Another year for Krugman, another set of factually-challenged opinion pieces apparently written by unpaid interns. My favorite was his assertion that Halbig represented “corruption” in the courts, a claim the indispensable Walter Olson demolishes here. As several bloggers noted, Krugman was a big supporter of the Platinum Coin Caper, where he said, essentially, that we should concentrate on the letter of the law, not the spirit, the opposite of what he’s saying now.

Note, also. This year is coming a cropper for things Krugmans believes in. The Picketty analysis of inequality appears to be badly flawed. And Keynesian ideas are failing all over the globe.

Dishonorable Mention: Wendy Davis, whoever is doing PR for the Ferguson Police, the Ferguson rioters, Debbie Wasserman-Schultz, the Secret Service, Mary Landrieu, Everytown USA.

Now the Golden Drumsticks, awarded to those who best exemplified what is right with the world. Here are the past awards, the first round from West Virginia Rebel.

2007: Arnold Schwarzenegger, Ron Paul, Barack Obama, David Petraeus, Juan Carlos, Burma’s monks

2008: US Military, Jeff Flake, Ron Paul, Republican Governors, Barack Obama

2009: The American Fighting Man, Kimberly Munley and Mark Todd, George W. Bush

2010: The Tea Party, Chris Christie, Alan Simpson and Erskine Bowles, the Next Wave of Republicans, David Cameron and Nick Clegg, The American Soldiers

2011: Seal Team Six, Mark Kelly, The Arab Spring (ugh), the Technicians at Fukushima

2012: Down Ballots, The Sandy Responders, Glen Doherty and Tyrone Woods, Mathew Inman

2013: Francis I, Edward Snowden, Rand Paul, The American Military, The Institute for Justice

For this year, I picked:

Ebola Responders: In the face of a colossal healthcare crisis and one of the most terrifying diseases out there, Africa has been flooded with volunteers risking their lives to help. Hundreds of healthcare workers in Africa, including Humarr Khan, have been killed trying to comfort or save the dying. Even in this country, we’ve seen nurses and doctors work hard to care for Ebola victims, including two nurses who were infected in Dallas and mercifully saved by modern medicine.

Here’s a little thing about me: I tend to dislike movies about dystopias. Not because I think a dystopia won’t happen or because I’m ignorant about the dark side of human nature. I dislike them because they usually ignore the flip side of human nature: our capacity to be generous, brave and compassionate.

Francis I: He continues to shake up the religious world while adhering closely to Catholic doctrine. My initial impression of him remains unchanged. He is just a good man.

Rand Paul: Paul gave a speech earlier this year that was a rebuke to the neocons: defining a foreign policy that defends our interests while avoiding senseless overseas debacles. He is pushing the Republicans toward reforms of our criminal justice system, our surveillance state and our War on Drugs. I’m a bit worried whether he’ll hold up to the pressure of special interests, especially if he has Presidential aspirations. But right now, he’s doing good.

David Brat and the Republican Candidates: “A monarch’s neck should always have a noose around it—it keeps him upright.” – Robert A. Heinlein. I’m not sure what to make of Brat at this point, but I think his defeat of Cantor is an important reminder to the Republicans of what will happen if the get stupid again. Among the other Republicans running for office this year, there was barely a gaffe to be heard. In fact, the biggest War on Women complaint was about Mark Udall, criticized by his own supporters for talking too much about the War on Women. In general, they stuck to the bread and butter themes of the economy, Obamacare and big government. Let’s hope they deliver.

The Supreme Court: It’s always a mixed year from the Court, but this year they gave us good decisions in Riley, Hobby Lobby, Harris v. Quinn, McCullen v. Coakley, NLRB v. Noel Canning, Town of Greece v. Galloway, Schuette v. BAMN and McCutcheon. They continued their streak of unanimously rejecting Obama’s power grabs. You can check on this year’s key decisions here. There are a few I had issues with but most were solid.

Honorable Mentions: marijuana decriminalization efforts, Scott Walker, Charlie Baker (anyone who defeat Martha Coakley gets a mention), the American military

Put your nominees in the comments. And I hope you all have a great Thanksgiving.

The Death of the Judiciary

So this was happening:

A member of the Oklahoma House drafted a resolution Wednesday seeking the impeachment of state Supreme Court justices who granted a delay of execution to two death row inmates.

Republican state Rep. Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution Monday to Clayton Lockett and Charles Warner, both of whom were scheduled to be executed this month.

Lockett and Warner, who aren’t challenging their convictions, have filed a civil lawsuit seeking the source of the drugs used to execute them. Pending the resolution of that lawsuit, they asked for a stay of execution.

The Court of Criminal Appeals has said it couldn’t weigh in on the delay of execution because it didn’t have the power or the authority, so the high court said a “rule of necessity” led to its decision Monday. Under the state constitution, the Supreme Court handles civil cases while the Court of Criminal Appeals takes those involving inmates.

The Court later dissolved the stay.

At issue here is that the State of Oklahoma is refusing to reveal the drugs they use to execute people. Ostensibly, this is to protect companies that manufacture those drugs from being harassed by anti-death-penalty activists.

I’ll get into the merits of the case in a moment. But what I want to focus on is what I see as a looming threat to an independent judiciary. Over the last couple of decades, we have seen a slow push to gradually eviscerate the independence of the judicial branch. Politicians rail against “activist judges”, each political side screams blue murder when SCOTUS rules against them and now we finally have impeachment proceedings because of a disagreement with a court. And this isn’t confined to conservatives. Every time SCOTUS rules against liberals, there are cries to impeach the justices or at least limit their terms (conveniently to just after the last Republican President left office).

While these cries might be satisfying to those who rail against “activist” judges and are still fuming from either the Obamacare or the Citizens United decision, I see this as fundamentally dangerous to liberty. Because the protection of our liberty and our Constitutional rights requires an active independent judiciary. Both sides should understand this. Conservatives have won key victories in cases like Heller because the bench decided to act against the “will of the people” as expressed through their legislature. And some of our most bitter defeats — Kelo and Obamacare, in particular — have come about because the judiciary wasn’t activist enough and wouldn’t overturn a law. Liberals have also won key victories — like last year’s gay marriage decision — when the judiciary has over-ruled the “will of the people”.

In the end, this boils down less to any real philosophy about the role of the judicial branch than to whining whenever that branch doesn’t do what we want. Objecting to bad court decisions is fine. In fact, I think it’s required in a healthy Republic. But the tone of the last few years had turned away from criticism to active attacks and calls to limit the independence of the judiciary.

This trend worries me. I have expressed this concern before, but it’s worth repeating. I fear that we are slowly moving toward a regime where there is basically no one protecting our Constitutional rights. Congress and the President rarely, if ever, consider the Constitutionality of their laws. They say that’s for the Courts (in fact, Bush said exactly this when signing the blatantly unconstitutional McCain-Feingold Law). Everyone seems to agree that Presidents are just supposed to enforce the law, never bother with whether those laws violate our basic freedoms (with the exception of the occasional veto). And with the railing against courts for “ignoring the will of the people/legislature”, we’re moving away from judicial review as well. So given these facts, who the hell is defending our Constitutional rights? Jon Stewart?

This is the complete opposite of how things should be. When the government acts, the branches of our government should be like the officers in a nuclear missile silo — nothing happens unless all three turn their keys. All three have to agree that it is within the power of government; all three have to agree that it does not violate our Constitutional rights. Congress must not pass laws that violate the Constitution; the President must veto ones that do and refuse to use unconstitutional powers that the legislature gives him*; the Courts must bounce any law that violates the Constitution.

(*To be clear, this doesn’t mean the President should act on his own or rewrite laws or ignore laws. This power, which would be used very rarely, would only be used in the negative sense of the President refusing to utilize powers that he deems unconstitutional, such as if Congress suspended habeas.)

Now as to this particular case: some commentators are avoiding talking about what the criminals did. I won’t. One shotgunned a teenager and buried her alive. The other raped and murdered a child. While I am neutral on the death penalty, these would probably be the guys you would want to apply it to.

But the issue here is not the horrible crimes that these vermin committed. The issues it that Oklahoma is using a secret recipe for lethal injection — a formula that tonight resulted in the botched execution of one of the two men in this case. When the methods of execution are secret, there is literally no way to decide if it constitutes cruel and unusual punishment.

Now maybe you think with what these guys did, they deserve to suffer. But we have laws and a Constitution for a reason and that reason is to protect everyone from the excesses of government. And when you chip away at anyone’s Constitutional rights, you chip away at everyone’s. The destruction of our Constitutional liberties always starts with people who everyone agrees are despicable, before proceeding to the rest of us. Free speech killers don’t start with Sesame Street; they start with the Klan and the Nazis. Surveillance fetishists don’t start with your backyard; they start with terrorists. And attacks on the protections in our criminal justice system don’t start with some kid smoking pot; they start with murderers and child molesters. There is good reason to believe that at least one innocent man has been executed and a new study claims that one in 25 death row inmates, and perhaps more, are innocent. Do they deserve to suffer?

We can not yield on Constitutional rights, not even with these pieces of human debris. Because once the freedom destroyers gain an inch, they will ask a mile.

But … even if we posit that the Court was wrong to delay these executions, a call for impeachment is ridiculous overkill. The Court did not set them free, commute their sentences or bake them cookies. They simply delayed their executions (as it turned out, for a few days). If the Courts are in danger of impeachment every time they make an unpopular decision, we might as well just do away with the Courts. Try people on Oprah and execute them on Springer. Who cares if innocent people are killed cruelly? It’s what the people want, isn’t it? That’s what baby rapists and child killers deserve, isn’t it?

An independent judiciary is going to make some mistakes and some bad decisions. But a non-independent judiciary that is subject to the whims of the mob is going to make bad decisions constantly. We already have two of our branches constantly doing the wrong thing. Do we really need the third to join in the fun?

McCutcheon

Did you know that our Republic ended last week? It’s true, at least if you believe the left wing:

In a sharply divided ruling Wednesday, the Supreme Court further eroded campaign finance laws by striking down limits on the total amount that an individual may donate across political candidates and committees in an election cycle.

The decision — written by Chief Justice John Roberts and joined by Justices Antonin Scalia, Anthony Kennedy and Samuel Alito — held that “aggregate limits are invalid under the First Amendment.” Justice Clarence Thomas concurred with the other conservative justices but penned a separate opinion arguing that campaign finance restrictions should be wiped out further.

The conservative justices argued that eliminating aggregate cont limits doesn’t give rise to “quid pro quo corruption” which the court recognized as a legitimate rationale for campaign finance restrictions in the landmark Buckley v. Valeo case in 1976.

Basically, when it comes to political donations, you are limited to personal donations of $2600 per candidate. But there is also an aggregate limit of $48,600 to candidates and $74,600 to committees. The Supreme Court tossed out that limit.

Here is a typical reaction from the anti-campaign-contribution crowd:

Under the old aggregate limit, it used to be that the most a donor could show up with was $123,000. Now, one donor can cut a $3.5 million check to a joint fundraising committee. The kind of people who are willing to drop more money than most Americans will make in their entire lives on one election can now wield enormous leverage over entire political parties.

Um, didn’t they already? Haven’t we been hearing for the last few years how the Koch Brothers are corrupting the system, destroying the environment, ravishing milk maids and poisoning the wells?

That means a big donor could go to the head of a JFC and says “gee, I’d sure love to send this $3.5 million your way, but I can’t do that until I’m sure none of it will go to candidates who support closing a tax loophole I like.” Suddenly, the head of that JFC has 3.5 million reasons to call up every single member of his party and make sure that everyone is on the same page about keeping that tax loophole open for another couple of years. At which point everyone has to raise money to run for office again, and the whole cycle starts over.

I find this to be … incredibly naive. The minimum bribe level for our Congress is a lot lower than $3.6 million. I suspect it’s lower than $123,000. In fact, it’s probably even lower than $2600. In fact, you often don’t have to donate much of your money at all. Simply raising money for a candidate (bundling) can get you government-guaranteed loans for your business, exemptions from regulations and an ambassadorship. And it works the other way too. A regulator ruling in favor of a big business can then walk into a six-figure job with that business.

All this really changes is how money is shuffled to candidates. In 2012, Sheldon Adelson donated $5 million to Newt Gingrich’s PAC, which was essentially a donation to Newt. That has just as much potential corrupting power than $3.6 million spread out to 525 campaigns and various committees. So why all the fuss over a law change that involves open direct donations? Is it just because the Left Wing has a hysterical reflex whenever a Supreme Court decision doesn’t go their way?

The issues, to me, are pretty clear. Political donations fall under the aegis of free speech. Mataconis:

As I’ve noted in the past, though, the arguments against “money in politics” are typically misplaced for sseveral reasons. First of all, as much as it gets derided by critics, the Supreme Court has recognized since its first campaign finance decision, Buckley v. Valeo, that money is indeed equivalent to speech in the political context. Functionally, there is no difference between me written a blog post endorsing a political candidate, and me writing them a check, and any effort by government to restrict my ability to do either should be subjected to the strictest form of scrutiny. Second, history has shown us that any attempt to decrease the role of money in politics only tends to drive such activity underground where it is much harder to keep track of.

The proponents of campaign finance restrictions, when you get down to it, don’t like the political speech that money enables. That opposition often falls away when it’s their own cause. But when you have campaign committees pointing out the flaws in Obamacare or our huge deficit or the state of the economy … well, then it’s time to fire up the campaign finance laws.

Unfortunately for the campaign finance reformers, but fortunately for us, the Courts have long recognized that corruption is the only reason to restrict campaign donations. Not liking “money in politics” is not reason enough to bottle up people’s free speech rights. And it’s hard to argue that these aggregate limits stop corruption in any meaningful way.

But I’ll tell you in a little secret. Lean in close to the screen and I’ll whisper it:

I don’t like money in politics either.

Seriously, I don’t. I do think money in politics has a corrupting effect — most notably the crony capitalism that has dominated this country for the last decade and a half, wrecked the economy, left millions unemployed and massively increased the gap between rich and poor. It is a corruption that is a lot more subtle than the crude bribery HuffPo describes above. This corruption often comes in the guise of “reform” or “good regulation”. It manifests in regulations that bankrupt small toy makers while leaving the big industries intact. It manifests in financial reform that insulates the banking industry even more from their own mistakes. It manifests in an “energy policy” that gives the President billions of dollars to play scientist with.

Certainly massive campaign donations play a role in that corruption. But the role they play is symptom, not disease. The disease is a massive, bloated government that foists tens of thousands of regulations on us and has virtual monopsony power over many industries. The disease is a system where big businesses and rich tycoons have no choice but to be political. We have seen, over the last decade, what happens to businesses like Google, Apple, Microsoft and Paypal when they don’t want to play politics. Pretty soon, they have no choice. And after a while, they’re part of the system.

I would prefer a more open political donation system: you can donate whatever you want to whomever you want, it just has to be disclosed (although last week’s hounding of Brendan Eich illustrates the pitfalls of such an open system). But in the end, this comes down to a government that is massive, powerful and will demand its cut by hook or by crook.

I’ve said it before but it’s worth repeating: if you want money of politics, get the politics out of money.

The Supposed Activism of the Roberts Court

Every day we hear that the Roberts Court is completely out of control. Why, they’re the most activist Court in history! Ruth Bader Ginsberg herself said so.

Well, someone must have been asleep at the switch at the New York Times because they let Adam Liptak go out and, you know, get the facts:

If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.

But these decisions are outliers when measured against the court’s overall record over the last nine years.

The stats are pretty clear. The Warren Court overturned twice as many laws per year as the Roberts Court has — some of them very big decisions that significantly changed American law. Both the Burger and the Rehnquist Courts were far more activist than this one. No matter how you slice it, this Court is deferring to legislatures more than any court has in the last half century.

Indeed, there is a new school of criticism — one that includes some voices from the right, where judicial restraint was once part of conservative legal orthodoxy — that says the Supreme Court is not activist enough.

In a recent essay, “Why We Need More Judicial Activism,” Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. “Too much of a good thing can be bad,” she wrote, “and democracy is no exception.”

In a new book, “Terms of Engagement,” Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. “It is implausible,” he wrote, “to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.”

We’ve spoken of that here, not just on the Obamacare decision, but on civil liberties and property rights. And when I look over the history of the Court, the worst decisions it has made has not been when it has struck down laws or rewritten them but when it has failed to strike down laws and protect our liberties. The Gold Clause Cases, Kelo, Raich v. Gonzales, Miller … the running thread is the Court refusing to stop the advance of government power. (A good read on this is Bob Levy and Chip Mellor’s book The Dirty Dozen).

Mataconis:

When examining whether a Court is acting properly, the question shouldn’t be simply how often they strike down a legislative act, or a law passed via referendum such as Proposition 8. For a whole host of reasons, that definition ignores the fact that the legislature, and the people acting via referendum, can and do quite often get things wrong in the sense that they step outside the proper boundaries of their powers, or act in a manner that violates the rights of a particular minority. Instead, the question ought to be the extent to which the Court is performing the functions for which was created, which include not just interpreting existing law in the light of the Constitution (Federal or state depending on the circumstance) but also acting as a check against the Legislative and Executive Branches.

This is where the form of “judicial restraint” that Bork and others have advocated, which boils down to nothing less than Judicial surrender to nearly unbridled majoritarianism, gets things wrong. While Courts should give some due degree of deference to a law that has been passed by Congress or a state legislature, they should not be so slavishly willing to accept its validity that they reject out of hand perfectly valid arguments against those laws. Adopting the second position would essentially reduce Courts to nothing more than rubber stamps for democratic majorities, which is clearly not what the Founders intended the Federal Judicial Branch to be and, quite clearly, not what the Judiciary as it developed under the Common Law system that we inherited from Great Britain was ever intended to be.

(For conservatives, the main issue with judicial activism is Roe v. Wade (and Griswold before it) which they see as having established a right to privacy that didn’t exist. I’m not going to wade into those waters today.)

That the Roberts Court is an activist abomination has become an article of faith on the Left. But most of that boils down to the Court striking down laws that they like instead of laws that conservatives like. None of them screamed judicial activism when the Court struck down parts of DOMA. In fact, many of them agitated — in the lazy-ass 21st century way of changing their Facebook profiles — precisely for the Court to be activist on that matter.

To me, the whole “activism v. restraint” debate is nonsense. Ultimately, every SCOTUS case boils down to whether a law violates the Constitution. A law that does need to be struck down. Period. I think debating the constitutionality of those laws is much more important than any Sunday chat show debate about “judicial activism”.

You Can’t Say That (Prostitution Edition)

The Supreme Court has yet to render decisions on gay marriage, affirmative action or the Voting Rights Act. But a number of critical decisions have come down, some good, some bad. I’ve been sitting on post on criminal rights for a few days; I’ll hopefully crank it out over the weekend. But I did want to comment on Agency for International Development v. Alliance for Open Society International, Inc., which was handed down yesterday.

(Aside: I have become a total SCOTUSblog junkie. They have pages on every case the Court is handling, complete with amicus briefs. When they liveblog decisions, I close my office door. They get it fast and they get it right. They absolutely deserved the Peabody Award they won for getting the Obamacare decision right while the networks floundered. If you care about the Court, they are a must-bookmark.)

About ten years ago, the government implemented two policies for funding organizations to fight AIDS. The first was that they not used funds to promote prostitution or its legalization. The second was that they must explicitly oppose prostitution. The orgs argued that the second requirement impugned their First Amendment rights by forcing them to advocate a political view. And yesterday the Court agreed 6-2 that it did.

(It was always stupid policy — legalizing prostitution would very likely cut into the spread of AIDS. But the Court has no power to overturn laws because they’re dumb.)

Volokh:

This case is about far more than prostitution and HIV/AIDS. The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example. Student loans and grants, which are likewise treated as equivalent to direct payments to the university, are another. Numerous other examples exist, including the direct grants at issue here.

Under the government’s theory in this case, federal, state, and local governments may use these kinds of government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so.

For the reasons discussed below, that cannot be right. Such a “get with the program” power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it.

Exactly. As Noah Feldman pointed out, this decision protects conservative views as much or more than it protects liberal ones. Had the Court upheld this provision, there would have been nothing to stop the government from forcing organizations that wanted federal funds or tax exemptions to recognize the legitimacy of gay marriage or the importance of a woman’s right to choose or anything else that popped into their heads. To quote from Robert’s stirring decision:

[T]he Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Va. Bd. of Ed. v. Barnette.

Now there’s an argument for this policy, which Scalia and Thomas put forward and is discussed more by Ken at Popehat that goes like this: it’s the government’s money, so you have to play by their rules. There Ain’t No Such Thing as a Free Lunch. You don’t want to parrot the government line? Don’t take their money.

I would say, as a general rule, that’s not unreasonable. But the history of government using its financial power to compel behavior is long and ugly and has frequently extended to areas where we don’t have a choice (or effectively don’t) about taking their money. Highway funding was used as a bludgeon to raise the drinking age. Financial aid was used to force universities to adopt more aggressive anti-drug and anti-drinking policies. In fact, this very Court has decided that we are not entitled to Social Security money. How long would it take for politicians to mandate certain views in return for benefits?

Amanda Marcotte, always one to completely miss the point, tries to hammer this into a Bush and the evil Christians narrative. But that ignores that the Obama Administration supported this policy. Numerous “feminists” supported the policy or filed amicus briefs in favor. Numerous Democratic politicians supported it and filed amicus briefs in favor. And it would not surprise me at all to see this emerge again with a thin Constitutional veneer.

As Volokh says, our government has tremendous financial and regulatory power. Even if we elected Rand Paul and a bunch of libertarians tomorrow, it would take decades for that power to recede. We have to be very suspicious when it tries to use that power to make people agree with it. To not do so is to ignore the monster in the room.

SCOTUS in the News

Going to be an interesting week for the Court. They are having hearings now on both DOMA and California’s same sex marriage ban. We won’t know their decision for a while. My guess is that they will strike down parts of DOMA and possibly California’s amendment but on very narrow grounds that fall short of declaring a “right” to marriage. That would be my preferred outcome at this stage. I would prefer that this issue not be resolved by the Court. And given the dramatic shifts in opinion — Mark Warner and Claire McCaskill just changed their positions and a new poll shows majority support in Ohio — I suspect the gay marriage proponents will get what they want through the democratic process very soon. By the time the 2020’s roll around, I expect gay marriage to be legal in a majority of states no matter what the Supreme Court says.

The more interesting ruling came today in Florida v. Jardines. This is case where a “drug-sniffing dog” was brought onto someone’s porch without a warrant and his subsequent alert used as probable cause. There wasn’t much hope for this since the Court decided earlier this year, unanimously, that drug-sniffing dogs constitute an infallible drug detection mechanism and therefore their use does not constitute a search. This, despite overwhelming evidence that drug-sniffing dogs are anything but infallible and often simply reinforce the predisposition of their handlers.

But the Court ruled in favor of Jardines on privacy and trespass grounds. This will prevent blind searches of people’s homes using the dogs so it’s at least something. Interesting, supposed fascists Thomas and Scalia decided with the majority while supposed liberals Kennedy and Breyer were with the minority.

The Court has been chipping away at our Fourth Amendment rights for some time. It’s nice to see the brakes applied or once.