The Politicians At SCOTUS

A brilliant piece by Andrew McCarthy on the overt politicization of the U.S. Supreme Court. Excerpted at length below.

“But this Court is not a legislature.” Chief Justice John Roberts actually published that sentence in his same-sex marriage dissent on Friday . . . a mere 24 hours after his maestro’s performance in the Supreme Court’s legislative rewrite of the Affordable Care Act — formerly known as “Obamacare,” but now etched in memory as “SCOTUScare,” thanks to Justice Antonin Scalia’s withering dissent. Roberts’s denial that the Court legislates is astonishing in its cynicism: In saving SCOTUScare, the chief justice not only usurped Congress’s law-writing role with gusto; he claimed the powers, first, to divine legislative purpose from its contradictory expression in legislative language, and, then, to manufacture legislative ambiguity as the pretext for twisting the language to serve the contrived purpose.

...Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination. Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta. Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

 

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

...If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
 

...Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law. The SCOTUScare case, King v. Burwell, was not a constitutional case at all; it was a straightforward matter of statutory interpretation. What made it ostensibly straightforward was the law: a statute that says, “an Exchange established by the State,” cannot possibly mean “an Exchange not established by the State.” If we were a nation of laws, such a case would never make it to the highest court in the land. But we are a nation of will, the will of a determined political movement, so the law never had a chance.

Another perceptive article written by David French, (a lawyer, as is McCarthy), also highlights John Roberts' extrajudicial arrogance.

This result (ruling the other way) would have been catastrophic for Obamacare — gutting a key provision — but whether it would have been catastrophic, meaningless, or even potentially beneficial for individual Americans would have been entirely up to the elected branches of government. After all, a Supreme Court decision applying the clear language of the statute wouldn’t have mandated any particular congressional or presidential reaction. Congress would have been free to reform Obamacare, rewrite it to include federal exchanges in the subsidy scheme, or enact entirely new policies.

The Supreme Court, however, decided not to take any chances on democracy, so — in an opinion long on insurance-economics analysis and short on statutory or constitutional reasoning — it effectively changed the statute. Why? Because of the entirely speculative real-world effects. Here’s Justice Roberts:

"Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid."

Yet this is pure conjecture on Justice Roberts’s part. He does not, in fact, know whether insurance markets would be destabilized because he does not know the congressional response to a contrary ruling. He distrusts Congress, so he’s going to “fix” their mess.
 

He made this distrust manifest earlier in the opinion when he took a swipe at the drafters, noting that Obamacare “contains more than a few examples of inartful drafting” and that “Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’” But despite (or because of?) this mess, the Court felt the need to preserve the Obamacare they wanted to see, not the Obamacare Congress drafted and the president signed.

Contrary to the fantasy promoted by Obamacare supporters, the restriction of subsidies to exchanges established by the state and only by the state was not an oversight or a clerical error or some intern playing a joke. It was a deliberate attempt to incentivize states to set up their own exchanges, getting the federal government off the hook. Congressional Democrats were betting that the states would jump at the prospect of getting federal taxpayer money for its constituents as well as having some influence on setting health exchange rules. Well they lost that bet. Thirty-six states decided not to set up their own exchanges. That such a large majority of states would reject federal assistance might have been a surprise but it was certainly not out of the realm of possibility. The democratic process dictates...demands that Congress' shortsightedness and lack of imagination is for Congress to fix (or not to fix), not the courts.

Leave it to John Roberts explain the pernicious effect of SCOTUS intervening where it doesn't belong.

"Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today."

This from a guy who seeks to end the ongoing democratic process to reform health care.
 

Questions For Democrats

George Will posts a series of questions for Hillary Clinton, questions which all Democrats should be obligated to answer.

In March 2003, Bush launched a war of choice to accomplish regime change in Iraq, mistakenly believing it was developing weapons of mass destruction. In March 2011, Barack Obama and you launched a war of choice against Libya for the humanitarian purposes of preventing, it was said, as many as 10,000 deaths at the hands of Moammar Gaddafi. Since March 2011, in Syria, where the regime continues to use chemical weapons that it supposedly agreed to surrender, the civil war has killed more than 320,000. Why humanitarian intervention in Libya instead of Syria? Bush sought, and you as a senator gave, approval for his war of choice. Obama and you, arguing that the thousands of airstrikes that killed thousands of Libyans did not constitute “hostilities,” never sought approval for the Libyan war. Who was more lawful, Bush or Obama and you? What criteria suggest that the world is safer than before you became secretary?
 

In this month’s Wisconsin Democratic convention straw poll, you defeated Bernie Sanders 49 percent to 41 percent. Sanders says he is a “socialist.” Do you have fundamental differences with him? If not, are you a socialist? He does not think a 90 percent top income-tax rate is too high. Do you? He says “almost all of” America’s wealth “rests in the hands of a handful of billionaires.” Forbes magazine says the combined net worth of America’s 536 billionaires is $2.566 trillion. Is it a grave problem that the 536 have 3 percent of America’s $84.9 trillion wealth? Is it deplorable that the Waltons became a family of billionaires by creating Wal-Mart, America’s largest private-sector employer? Do you regret that Apple products made Steve Jobs a billionaire? Are any of your however many phones iPhones?
 

Sanders vows “to make tuition in public colleges and universities free.” Do you agree that the 68 percent of Americans without college degrees should pay the tuition for those whose degrees will bring them lifetime earnings significantly higher than the earnings of the non–college graduates who will have paid much of the cost of the “free” tuition?

 

...And so on.

In a better world James Lilecks would have a show on Comedy Central. Here's his take on the Confederate flag kerfluffle.

 

And Kevin Williamson examines the insane left.

 

For the Left, it feels like time is running out. So it isn’t sufficient that same-sex marriages be legalized; bakers and florists must be locked in prison if they decline to participate in a gay couple’s ceremony. It isn’t sufficient that those wishing to undergo sex-change surgery be permitted to go their own way; the public must pay for it, and if Bruce Jenner is still “Bruce” to you, you must be driven from polite society.

 

...You have to credit the Left: Its strategy is deft. If you can make enough noise that sounds approximately like a moral crisis, then you can in effect create a moral crisis. Never mind that the underlying argument — “Something bad has happened to somebody else, and so you must give us something we want!” — is entirely specious; it is effective. In the wake of the financial crisis, we got all manner of “reform,” from student-lending practices to the mandates of Elizabeth Warren’s new pet bureaucracy, involving things that had nothing at all to do with the financial crisis. Democrats argued that decency compelled us to pass a tax increase in the wake of the crisis, though tax rates had nothing to do with it. A crisis is a crisis is a crisis, and if a meteor hits Ypsilanti tomorrow you can be sure that Debbie Stabenow will be calling for a $15 national minimum wage because of the plight of meteor victims.

...When the South actually was a segregationist backwater that African-Americans were fleeing by the million — when Democrats were running the show — they were ho-hum. Today the South is an economic powerhouse, dominated by Republicans, and attracting new African-American residents by the thousands. And so the Left and its creature, the Democratic party, insist that Southern identity as such must be anathematized. The horrific crime that shocked the nation notwithstanding, black life in Charleston remains very different, in attractive ways, from black life in such Left-dominated horror shows as Cleveland and Detroit, and the state’s governor is, in the parlance of identity politics, a woman of color — but she is a Republican, too, and therefore there must be shrieking, rending of garments, and gnashing of teeth. 

Preferred Candidates

A fun exchange between Jonah Goldberg and Kevin Williamson.

First Jonah

Then Kevin

Free Enterprise, Free Speech

Kevin Williamson explains (yet again, it can't be repeated often enough) the reason that private enterprise is to public bureaucracies (i.e. government) as the iPhone is to two cans connected by string.

CGI, the web-design firm in which one of Michelle Obama’s college cronies is a senior executive, was lambasted for the debacle that was the Obamacare rollout, and eventually fired — or as “fired” as the politically connected get in Washington; some months after having its Obamacare contract terminated, CGI was awarded a multimillion-dollar IRS contract to manage . . . Obamacare issues. Mrs. Obama’s friend in the firm, Toni Townes-Whitley, was promoted from senior vice president to chief operating officer.

...One of the rarely appreciated aspects of the capitalist model of innovation is that the wealthy subsidize the development of products for everybody else: The mobile phone is a case study in that process, as is the electric car, as indeed were ordinary cars.

...Technological and economic evolution is like biological evolution in one important aspect: Death is the instrument of life, and the process of innovation is inseparably linked to the process of extinction.
 

...Non-performing federal agencies do not go bankrupt, federal bureaucracies do not see their shares tank when they do poorly, and government entities do not have their assets acquired by more effective competitors.

Also, Jonah Goldberg writes about the left's free speech double standard. Opinions, positions and art it finds offensive are to be prohibited while those it agrees with warrant government subsidies.
 

Back in the ’80s and ’90s, the whole point of subsidizing art was to pay for stuff that offended, shocked, and stretched the boundaries (and, occasionally, sphincters) of society. As is almost always the case, what this actually meant was that it must shock the right kinds of people: bourgeois fuddy-duddies and fusspots, squares, and scriveners, men in gray flannel suits and bible-thumpers of all sorts.

Many on the left still like doing that, of course. But there’s a problem. It turns out that there are lots of people who are even more shockable than white, Christian men and the women who love them. After so many years of the Left focusing on making Uptighty-Whitey blush, social conservatives have grown a pretty thick skin about such mockery. Meanwhile the same feminists who clapped with glee as Karen Finley rubbed chocolate-qua-feces over her body to symbolize the way women are treated — and rushed to her defense when she sued the federal government to pay her to do it — don’t much like it when anybody else says things they don’t like. And unlike conservatives, mainstream liberals have rice-paper thin skin about such things...

 

(When Finley and the “NEA Four” lost their lawsuit at the Supreme Court, Justice Scalia wrote: “Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.” This proved yet again that Scalia is a hoss.)

Great line by Scalia, isn't it?
Jonah continues --

The notion that certain anointed people have a right not to be offended has spread with the ineluctable logic of a cancer cell. One need only look at the reception Christina Hoff Sommers gets on college campuses to appreciate how times have changed. She gets bodyguards to protect her from physical attacks while the delicate little flowers get “safe spaces” where they are protected from words — facts, actually — they do not like.

This is all of a piece with the canard that liberals are in any meaningful sense libertarian. They are for freedoms that align with their preferred cultural and social norms — and fads — and they are for coercion or scorn for everything else. Right-wing means non-compliance and non-compliance is “hate,” and no one has the right to hate. Épater la bourgeoisie is so great it must be funded. But épater les féministes or épater les grifters raciales or — heaven forbid — épater les musulmans radicaux not only must not be funded, it must be banned outright. It’s free speech for me and “shut up, racist” for thee.

Jonah also notes anti-semite George Galloway's defeat in the recent British parliamentary elections with the following --

If I may reprise an old joke — one better spoken than written, I should note — and slightly updated: “Who’s responsible for killing Nicole Brown Simpson and George Galloway’s political career? The Juiiiiice.”

The Warmongering Left

Kevin Williamson with an(other) essay on the dumb, daft and dangerous delusions of the deranged left. It's a long piece, read it all! Here are just a couple of brief excerpts.

Writing in Salon this week, Conor Lynch is positively wistful: “The mass destruction of capital around the world created a much more even playing field than before, while also placing the United States at the forefront of the world economy.”

“Destruction of capital” is a cute way of describing the slaughter of some 80 million people and the burning of their cities.

...The anti-capitalist progressives have made clear what they do not want: free trade, free exchange, nasty foreigners and their nasty cheap goods, international exchange with fewer bosses declaring who may buy and sell and under what conditions, etc. What is it they do want? You cannot have 1953 without 1943, President Eisenhower without General Eisenhower. There is only one precedent to a postwar order.

  

See also KW's link, expanding on one of his mantras, "Capitalism is cooperation".

Pernicious Progressive Policy

Two analyses of the recent Baltimore race riots place the blame squarely where it belongs - the left wing constructed culture of dependency.

Thomas Sowell --

Among the many painful ironies in the current racial turmoil is that communities scattered across the country were disrupted by riots and looting because of the demonstrable lie that Michael Brown was shot in the back by a white policeman in Missouri — but there was not nearly as much turmoil created by the demonstrable fact that a fleeing black man was shot dead by a white policeman in South Carolina.

Totally ignored was the fact that a black policeman in Alabama fatally shot an unarmed white teenager, and was cleared of any charges, at about the same time that a white policeman was cleared of charges in the fatal shooting of Michael Brown.

...You would be hard-pressed to find as many ghetto riots prior to the 1960s as we have seen just in the past year, much less in the 50 years since a wave of such riots swept across the country in 1965. We are told that such riots are a result of black poverty and white racism. But in fact — for those who still have some respect for facts — black poverty was far worse, and white racism was far worse, prior to 1960. But violent crime within black ghettos was far less.

Murder rates among black males were going down — repeat, down — during the much-lamented 1950s, while it went up after the much celebrated 1960s, reaching levels more than double what they had been before. Most black children were raised in two-parent families prior to the 1960s. But today the great majority of black children are raised in one-parent families. Such trends are not unique to blacks, nor even to the United States. The welfare state has led to remarkably similar trends among the white underclass in England over the same period. Just read Life at the Bottom, by Theodore Dalrymple, a British physician who worked in a hospital in a white slum neighborhood.

You cannot take any people, of any color, and exempt them from the requirements of civilization — including work, behavioral standards, personal responsibility, and all the other basic things that the clever intelligentsia disdain — without ruinous consequences to them and to society at large.

Non-judgmental subsidies of counterproductive lifestyles are treating people as if they were livestock, to be fed and tended by others in a welfare state — and yet expecting them to develop as human beings have developed when facing the challenges of life themselves. One key fact that keeps getting ignored is that the poverty rate among black married couples has been in single digits every year since 1994. Behavior matters and facts matter, more than the prevailing social visions or political empires built on those visions.

William McGurn -- (Nice to have him back at the WSJ)

 

In (one) view, the disaster of inner cities isn’t primarily about race at all. It’s about the consequences of 50 years of progressive misrule—which on race has proved an equal-opportunity failure.

 

Baltimore is but the latest liberal-blue city where government has failed to do the one thing it ought—i.e., put the cops on the side of the vulnerable and law-abiding—while pursuing “solutions” that in practice enfeeble families and social institutions and local economies.

These supposed solutions do this by substituting federal transfers for fathers and families. They do it by favoring community organizing and government projects over private investment. And they do it by propping up failing public-school systems that operate as jobs programs for the teachers unions instead of centers of learning.

If our inner-city African-American communities suffer disproportionately from crippling social pathologies that make upward mobility difficult—and they do—it is in large part because they have disproportionately been on the receiving end of this five-decade-long progressive experiment in government beneficence.

How do we know? Because when we look at a slice of white America that was showered with the same Great Society good intentions—Appalachia—we find the same dysfunctions: greater dependency, more single-parent families and the absence of the good, private-sector jobs that only a growing economy can create.

Remember, in the mid-1960s when President Johnson put a face on America’s “war on poverty,” he didn’t do it from an urban ghetto. He did it from the front porch of a shack in eastern Kentucky’s Martin County, where a white family of 10 eked out a subsistence living on an income of $400 a year.

In many ways, rural Martin County and urban Baltimore could not be more different. Martin County is 92% white while Baltimore is two-thirds black. Each has seen important sources of good-paying jobs dry up—Martin County in coal mining, Baltimore in manufacturing. In the last presidential election, Martin Country voted 6 to 1 for Mitt Romney while Baltimore went 9 to 1 for Barack Obama.

Yet the Great Society’s legacy has been depressingly similar. In a remarkable dispatch two years ago, the Lexington Herald-Leader’s John Cheves noted that the war on poverty sent $2.1 billion to Martin County alone (pop. 12,537) through programs including “welfare, food stamps, jobless benefits, disability compensation, school subsidies, affordable housing, worker training, economic development incentives, Head Start for poor children and expanded Social Security, Medicare and Medicaid.”

The result? “The problem facing Appalachia today isn’t Third World poverty,” writes Mr. Cheves. “It’s dependence on government assistance.” Just one example: When Congress imposed work requirements and lifetime caps for welfare during the Clinton administration, claims of disability jumped.

Mr. Cheves quotes a former grade-school principal who says this of Martin County’s children: “Instead of talking about a future of work, or a profession, they talk about getting a check.”

Yes, Washington’s largess has done some good. Even the federal government can’t spend billions of dollars without building a decent road or bridge here or there. But it all came at a high human cost.

To put the war on poverty’s “gains” in perspective, moreover, it is worth comparing the progress in both inner-city Baltimore and rural Martin County over the past half-century with, say, South Korea over the same time. While the Great Society’s billions were creating a culture of dependency, South Korea—with its emphasis on trade and global competition—rose from the ashes of a terrible war to become the world’s 12th-largest economy.

Meanwhile, President Obama says the rioting in Baltimore means “we as a country have to do some soul-searching.” He’s right about that, even though what he means by this is that others need to come around to his view. If the president really wanted to launch some national soul-searching, he would invite, say, Rep. Paul Ryan (R., Wis.) for a chat about how to get cities such as Baltimore to start generating jobs again.

Because to look at urban black Baltimore and rural white Martin County and conclude that the answer is more cradle-to-grave, “Life of Julia” federal love isn’t soul searching. It’s denial.

On a different subject - The following is from a review by James Freeman of Peter Schweitzer's new book detailing Clinton corruption.

The last time Bill and Hillary Clinton occupied the White House, it wasn’t easy to identify a guiding principle of U.S. foreign policy. But if Americans allow them to move back in, the former first couple will bring along a standard that is clear and consistent. Based on the evidence marshalled by Peter Schweizer, the new Clinton Doctrine seems to hold that wherever freedom and the rule of law are threatened, wherever corruption reigns and individual liberties are denied—there is money to be made. In such places, big windfalls can accrue to Clinton friends, who are nothing if not grateful and shower donations upon the Clinton Foundation and speaking fees upon the Clintons themselves.

...“The Clintons’ most lucrative transactions originate not in places like Germany or Great Britain, where business and politics are kept separate by stringent ethical rules and procedures,” writes Mr. Schweizer, “but in despotic areas of the developing world where the rules are very different.” He then takes us on a world tour of business magnates writing large checks to the Clintons or their foundation and receiving favorable treatment from various governmental bodies—including the U.S. Department of State where Mrs. Clinton served from 2009 to 2013. Where the particular government required to help a Clinton associate was of the less democratic variety, the favorable treatment was sometimes accompanied by Bill Clinton effusively praising the local strongman for his enlightened rule.

...Not all the benefits of African engagement went to Clinton friends. Some went directly to the Clintons. According to the book, “In his first eight years on the global lecture circuit, Bill had never been paid to speak in Nigeria. But once Hillary was appointed secretary of state, he booked two of his top three highest-paid speeches ever by traveling to Nigeria, pulling in a whopping $700,000 each.”

Far to the northeast, another group was also suddenly eager to hear wise words from the former president. Mr. Schweizer could find no evidence that the royals in the United Arab Emirates had ever paid for a Clinton speech before 2011. But that year the Obama administration designated U.A.E. shipping companies for economic sanctions for doing business with Iran. And just one day before the U.A.E.’s foreign minister met with Hillary Clinton in the U.S. that year, Mr. Clinton was in Abu Dhabi receiving $500,000 for a speech.
 
And this from Victor Davis Hanson warning of the dangers associated with the politicization of tax collecting --

The Clinton Foundation is expected to refile its tax returns for 2010, 2011, and 2012 after failing to separate government grants from donations. If an average citizen tried to amend his taxes for such huge sums and from that long ago, he would probably be under indictment.

 

News reports of undocumented donations from foreign governments caught the foundation underreporting its income. The well-connected Clinton clan apparently had assumed that their political status ensured them immunity.
 

Political Pretension

Kevin Williamson writes of his misfortune sharing a ride on the Acela with the vice-president. He ends the piece with this perceptive observation.

The people who love American politics love it for the give-and-take, for the exchange of ideas, for the sport of it. The people who hate American politics hate it because of the lie at its heart: that this is still the self-governing republic created by Jefferson, Madison, et al., instead of a new, different kind of regime that is something new in the world but immediately familiar, something dishonest, something gaudy and contemptible.