Fascinating links. Too good not to publish.

Real power in Congress-problem solvers. Hell is a narrow majority. 

Rare common ground in SCOTUS. How the theory that state legislatures could decide electors got busted. 

Brazil: Bannon tactics/riots. Code words used to set it up. 

Great video showing global temperature rise. 

Russia planning for offensive---mince meat. Specifically, Russian troops will be mince meat in their Feb '23 offensive

Qualified immunity

Lessons of the anthrax scare.

Detransitioners. Study on hormones for teens isn't conclusive. To read? Is this the one were no measure was that good? Check on depression. Critique of Dr. Turban, pro-transition psychiatrist. Jordan Peterson talking with detransitioner Chloe Cole. Great video of trans vs detrans discussions----watch and list the questions discussed. Reuters series on trans issues: long wait times for Tavistock. US teens and top surgery. 

Uvalde. He has a battle rifle. Report on the response from officers on the ground. 

Is Roe v. Wade about to be overturned?

Yes, I was woefully late posting this. But that makes it more historical, capturing some of the sentiments before the event. 

A draft decision overturning the Roe decision has been leaked---perhaps the first leak of a decision in the history of the Supreme Court. But the leak isn't my focus in the least. There's so much to consider that has much more impact on people's lives. 

If Roe is overturned, it will become much harder to get an abortion in over half the states in the US. And it will stay the same in a lot of states, like mine. 

However it's hard to tell how much impact this will actually have because getting an abortion is much easier than it was back 50 years ago. Now you can take a pill. That pill can be shipped to you or to a friend. You and a group of friends can stock up and resupply as convenient. There's also going to other states, but that's not as easy as taking a pill, so the pills will probably be used more than anything.

Will states try to prevent this? Maybe, probably, but how successful can they be? We have a huge illegal drug issue in the US, and states and federal government haven't put an end to that. This would involve legally available pills and people who want the government to stop dictating to women. So I think flaunting the laws will be widespread. A few people may be imprisoned, and that will seem like an injustice of the most arbitrary kind. And life will go on without a lot of difference except perhaps some people will be more careful about contraceptive use. 

Image: i stock photo

Extras. Dems have been raked over the coals for not passing a national law protecting abortion rights. But they never had the votes in the Senate since the bill certainly would have been filibustered. They had only 54 votes, with 7 Dem senators being pro-life at that time in 2009. 

Annotated copy of the leaked draft opinion. 

The talking points for the Republican senators: stress how compassionate GOPers are and how horrible extremists Dems are. 

Fascinating article about the abortion business in New York City in the 1800s. Abortion was illegal, sort of, so it was advertised as restoring menstrual regularity. 

Fall-out in Ohio. A 10-year-old girl was raped and impregnated. She had to go to Indiana to get the abortion. Big impact on the discussions in states. 

A gallery of day-by-day fetal development. 

Update 4/11/24. Long article about women taking abortion pills in states with abortion bans. They can often get the pills free, but they aren't getting a doctor's care, and that's a huge loss. Many are unsure what is normal and what are the danger signs that they should seek medical care. If they seek medical care, will they be prosecuted or targeted in some ways? There are some volunteer services of doctors on call who will answer questions, but it's not a substitute for physician care in person and in crisis. 

May/June links

(Catching up on posts started a while ago. This one originally written around so long ago it's embarrassing)

The man who recorded the confrontation and death of Ahmaud Arbery, he was very nervous about his role in the incident. He tried to distance himself and wished for justice for Arbery. Now he is also charged in the murder.

Michael Flynn in the news. Transcript of his call to the Russian ambassador.  The adviser to judge says no, you can't just drop charges against someone who pleaded guilty.

Egregious incident of stalking and harassment by ebay security employees. ebay!!!!

Trouble counting lots of absentee ballots. States need to step up and make this work better.

Qanon is strange and fascinating - not what they write, but how people are responding to this weirdness and hokey conspiracy thing. More about the origin and internals in a video with a founder of 8chan (starting at 37:46).

Bolton's book, delayed by the Trump administration, showed that quid pro quo was actually standard for Trump.

According to Steve Bannon, Trump's campaign is wobbling. Trump needs to be the president and take care of the problems, like the huge covid crisis.

Interesting law ruling from the Supreme Court that concerns tribal lands. It expands the power and independence of the tribes.

Image: chicagotribune.com

September links

DAMN, I'M LATE POSTING THIS. 

Truth-telling about guns. Wapo

No Charlottesville in Boston. In my home state, some twerps tried to have a Straight Pride Rally. Poor turn-out. Related. An article from the end of 2015 predicting the rise of white nationalism in the US.

Unscrutinized law. So much of law is about examination, scrutiny, testing in cases that are written down and reviewed. So it's a surprise the some law isn't subject to this when it's DOJ policy.

Clear-headed assessment of mass shootings. How big is the risk? That's a very fair question to ask.

More mass killings being twarted. More people are taking threats seriously and intervening. This time a teenage girl was stopped after buying a semi-auto rifle.

Late-breaking story about Russia. Most of the news about Russia interfering in the US election, and the responses to it, are well-known at this point. Here are two reports about a highly-placed spy in the Kremlin who was spirited away to safety at the beginning of the Trump presidency because Trump might have been careless and leaked info exposing him. Also a large section of the report on Russian interference was released by the Senate committee that is striving miraculously to be non-partisan.

How Trump treats advisers. Disrespectfully, we know. With the firing of John Bolton, we have a few more stories with insights. Trump hires 'brands' and Bolton was a well-known brand. The four categories of official Trump advisers, from 'shiny new toy' to 'fired via tweet' and other pithy observations.

Very few swing voters. Less than 5.5% are both undecided and moderate.

Big story on the Supreme Court? WaPo reports that getting a justice onto the Supreme Court is now so important that the ethics are shunted to the side.

Image: usatoday.com

Charges against Judge Kavanaugh

If one person comes out with a story about Brett Kavanaugh with a lot of gaps in the details and no witnesses, it's not too credible. When the count gets up to four people, it becomes more credible. Now there are over 8 people on the record with their names and what they witnessed. It includes drunkeness, aggressive behavior, and sexual aggression toward women. And that doesn't count numerous people who wouldn't release their names.

I find the charges against Kavanaugh plausible, but that doesn't mean much. It means he might well have been there and he might physically have been able to do the actions he's accused of. I don't believe arguments like 'it's not within his character' or 'she's so honest there's no way she's lying.' Those arguments aren't convincing to me unless I peronally know the extreme credibility of the character witness. Why? Because 'it's not within his character' has been said about too many serial killer, serial molesters, etc.

So the charges are plausible. It's also plausible that Ford is lying or mistaken. That's why the investigation is important. It's not going to be easy. Many people are not going to want to talk about their wild times in high school or college. If they're conservatives, as many of Kavanaugh's supporters are, they may not want to reveal his dirty past for political or tribal reasons. If they were friends, they may want to remain silent and loyal. That makes it hard for Kavanaugh to clear his name. The suspicions will linger. There's no way around that. It's an injustice built into suspicion, and it's impossible to remove it from people's brains.

If Christine Blasey Ford is lying, she figured out quite a cunning lie to tell. It's one that fits the pattern of Kavanaugh's partying. She's obscured details like where and when to make it harder to disprove. But she's done it in ways that are somewhat believable. I do have a couple problems with her story, which is her not remembering how she got to the house and how she left. Particularly not knowing how she left, I'm left wondering if she went back into the party. I wonder if she's leaving out details that which might undercut her story of how traumatized she was. It's also possible that she dissociated, and lacks the memory for that reason. Or there could be other reasons her memory is poor. I'm not an expert on memory, and I'm not sure anyone is expert enough to sort this out. Of course, a strong reason to conclude Ford hasn't fabricated the story is that she told her therapist and husband years ago, with therapy notes to confirm that. It's hard to fabricate a lie in advance.

This is one of those times when an infallible truth serum would be so helpful. I wish I could ask them both, and get the real story, not the one sorted and selected for the audience in the American public. But that's not possible, and we humans are such cunning animals. We aren't to be trusted. So what to do? We're left trying to make judgments in our imperfect ways. That's life.

Image: dailykos.com

Extras. This will be very long because I did a lot of research and want to save the info I found.

Transcript of Ford's and Kavanaugh's testimony. Julie Swetnick's sworn complaint. And another from another client of Avenatti. Decoding Kavanaugh's yearbook entry. Lots of references to sex and especially drinking. A letter from Kavanaugh to his friends about Beach Week, with lots of details and insider info. About Mark Judge's books.

Tucker Carlson and very sloppy argumentation. Weaknesses of Ford's story, and ignoring its strengths and supporting info. Biased assessment. As counterpoint, defending youthful mistakes--of privileged white guys, but not others.

Run down on two of the allegations. Rather complete at the time, so good detail. Private school culture at that time and place. Some sources fully identified. Also this article, which talks about gang rapes which weren't called gang rapes. A first-hand account by the author, so a named eye-witness. However, the parties are from the mid 1980s, so a few years after Kavanaugh graduated.

More people remembering Kavanaugh very drunk.  And more, with a follow-up. Others asked not to be named. A police report of Kavanaugh involved in a bar fight while at Yale, discrediting one of his character witnesses. Witnesses about Kavanaugh: Liz Swisher, Christine Keating, Lynne Brookes, James Roche, Charles Ludington, Elizabeth Rasor, Daniel Livan, Sean Hagan, Kerry Berchem, Kenneth Appold. Other named participants who should be thoroughly interviewed (which didn't happen) Mark Judge, Leland Keyser and Patrick Smythe. Also Renate Dolphin because she might have some very interesting stories to share.

A very critical analysis of Kavanaugh's testimony with numerous lies and evasions pointed out. Plus a companion piece on why Kavanaugh would be a harsh, rotten justice.

Inspired by Ford, a woman reveals her rape at a frat party many years ago. Is it fair for him to have to face consequences so many years later? Is it required that the survivor just let it go?

The very rigid rules for reading the FBI report, which forbids 'characterizing' the information. Looks like the FBI investigation is brief, limited, and a whitewash.

Update 11/5/18. A Republican consultant remembers being anger and aggressive at a conference meeting with Ken Starr. She's very disappointed with GOPers sweeping it under the rug.

September links

Good news about elections. Elections were administered more fairly in 2016 compared to 2012. The metrics included wait times, which is a good check on whether there is enough equipment in a given area.

Superdelegates and Dems. The DNC has reformed how superdelegates will work. It's a technical change, but the last paragraph in the report may be the most telling. Worth a read, truly

Supreme Court nominee on immorality. Brett Kanavaugh, nominee for the Supreme Court, had a blistering view of Bill Clinton, his immoral behavior, and his lying. I have to wonder how Kanavuagh will rule on such issues when he's on the Supreme Court. I'll be watching.

Responsibility for preventing rape. A professor writes an analysis of some arguments about rape prevention. He tries to claim that he's following logic, but appears to stack the deck in his framing of the two sides of the issue. I give him a D on logic.

Who's responsible for Trump? Fascinating discussion on whether having Obama as president caused the election of Donald Trump. Obama says no, but the article comes down on the 'yes' side, but not in a way that is harsh on Obama. Instead, it is harsh on racial resentment present among white Americans.

How Americans process news. A nice slice of life--on a fairly busy newsday, ask Americans what's happening. Write down the answers. Find out some interesting facets about Americans.

Alex Jones update. Regular readers (if they exist) know I intensely dislike Alex Jones. Here he is being quite an annoying asshole. Love the title of the post.

Image: fortune.com

July links

Travel ban ruling. A careful look at the travel ban (from some Muslim majority nations) and the issues involved. The Supreme Court decision and the dissent are haunted by the decision in the 1940s to intern Japanese-Americans. None of the justices want to make a mistake like that again. But there are other interesting issues, like whether waivers are being granted to those with clearly legitimate needs to visit the US. Definitely eye-opening and different from the usual partisan screamfest.

A history of the politics of Supreme Court nominations. A clear, easy read. I prefer the times when competence was the issue. However, the Bork nomination and anger over it eroded that. This prompted me to look into Bork again, and I found this strong statement of opposition to Bork--that he had no problem with discrimination and segregation as a personal choice of a business owner. Nor did he have any sympathy for the accidentally pregnant. It was the right thing to defeat this nomination. (I've written about before about the history of the Supreme Court.)

Poor standards at Fox News again. This time, Fox reported, Trump tweeted and both were wrong. This isn't actually news, but someone should keep score of how bad news orgs are.

Inside look at land management issue. This is a rare topic, but important for the future. Good choices on land management are a boon. Bad choices are a blight. I've seen it first hand on the Outer Banks of North Carolina.

Why is congress such a circus? There's actually an answer to that question. Gods be praised, and count me surprised. The answer is--messaging is still very important in Congress, but policy isn't. The number of pragmatic policy staff have been greatly reduced, but not the 'communications' people.

The latest winner in Syria... Is Israel. Read about the power plays between Israel, the US, Syria, Russia, and Iran. Fascinating. Seems coherent and solid to me. Will I still think so in a few years?

Image: economist.com

May links 2

Conservative Supreme Court prunes worker rights. I appreciate both sides of this argument in general, but I think this isn't a good ruling. If we want a strong middle class in this country, we need support for workers. That's how we got the middle class.

Shootings. An account of what the school shooter from Santa Fe, TX said and did while killing his victim. Not a vantage point we usually get. Some details of police actions. Young Texans will probably not being leading marches for changes in gun laws. Accounts from first responders to the Las Vegas shooting. There were a lot of first responders, and it was more like a military battle because the shooter was so well armed and prepared.

More on Russia. For reference. The fake ads that Russians put out. So many that they are condensed in zip files. I don't really want to look, but I know I should. Mueller apparently used a Russian oligarch for a sensitive mercy mission. Not scandalous. Background on an undercover FBI informant who tried to find out what was happening in the Trump campaign. Trey Gowdy, in his sometimes-straight-sometimes-hack way, says that the FBI use of an informant in the investigation was appropriate. Great background and historical perspective on Russia.

Memorial Day reflection. When war becomes mundane and most Americans become detached, wars can linger and not be resolved.

Sessions changed immigration enforcement. Revealing and fascinating article about how Jeff Sessions (the Attorney General) is changing immigration enforcement. Chilling, surprising.

Background on fentanyl. I have some knowledge of fentanyl, but this was instructive even to me.

Timeline on scandal. Trump friends Michael Cohen and Elliott Broidy were gathering a lot of money. At this point in the investigation, it may be a partial timeline, but it's already long.

Revealing more sexual harassment. University of Southern California is being sued over the behavior of one of its gynecologists. Surprise - complaints were ignored.

More on the gold standard. One of my pet peeves is people who dogmatically think that the gold standard is workable. Another revealing story about FDR and his odd relationship with the gold standard.

Well, then don't act like one. Lawyer claims he's not a racist after his non-racist rant went viral. And that kind of rant isn't popular in New York City, the home of large number of immigrants.

Image: thefirearmblog.com

Supreme Court stubs out abortion ban via regulation

When you can't get what you want by fair play, we can always resort to other methods. So it was with the State of Texas. The majority of legislators want to ban abortion, but certain Supreme Court decisions stand in their way.

Enter a different idea: cloak your ban in the guise of health-based regulations. Since we're already drowning in regulations, it's a common method of changing practice, so why not? It's not that hard to lie about the real reasons for the regulation, like pretending that abortion is more dangerous than childbirth and causes more death than the low death toll from colonoscopies.

So Texas passed its regulations (after an unsuccessful filibuster by Wendy Davis). Lots of abortion clinics closed down, but at least one sued. The case went up to the Supreme Court, where Anthony Kennedy, typically conservative justice, called bullshit on the regulations. Well, they were bullshit, so I'm glad that he didn't play along. Kennedy has called bullshit on other issues too, including the idea that same sex marriage is dangerous to the institution of marriage and family.

Three cheers for Justice Kennedy!

How far you have to travel in Texas

Image: vocativ.com

Hail, the witch is dead!

I'm not in a mood to be generous or compassionate to one of the least compassionate people I'd ever seen. I intensely disliked Scalia, and I still do. So I'm glad he's dead and his seat on the Supreme Court will be opening up. It's seems unlikely that someone worse will get to occupy that seat. The next justice probably won't compare loving same-sex relationships to murder.

I won't be forgetting any time soon that Scalia hated the idea of same-sex marriage. I love marriage (thanks to my sweetie and our nearly 40 years together), and I hope and pray other people can experience this happiness. Scalia doesn't mind a bit for such happiness to be denied to whole groups of people. What a bitch! Even people who support him can't make him sound like a nice person, a kind, caring person. He's a fire-breathing dragon, a wicked witch, a mean old man.

And now he's dead. Thank God death triumphs over all of us eventually.

Image: mic.com

Update 2/23/16. Scalia wasn't assassinated, in case you were a paranoid conspiracy nut.

My pocket analysis of the same-sex marriage ruling

Ok, I broke down and read much of the Supreme Court's same sex marriage ruling. We have conservatives calling the majority opinion jumbled and impossible to follow, and progressives calling the dissents 'hysterical.' So I have to read them, don't I?

I started with Clarence Thomas's dissent. Why? Because the outtakes listed here were the most hilarious. Thomas's dissent was a mess. First he defines 'liberty' as mostly meaning 'freedom of movement.' So he ignores the freedom or right to marry. Even in discussing the most relevant earlier case, he ignores the right to marry, and says the case was important because people could be imprisoned for being a spouse or a minister in an illegal wedding. Yes, it's a bad opinion.

Comparison to prior case law

The most relevant case, Loving v. Virginia, was a 1967 case where Virginia refused to recognize the marriage of a white man and black woman who had married in Washington DC but returned to Virginia to live. The Supreme Court, in its ruling, overturned all state laws against interracial marriages. The analogy couldn't be clearer.

So how does Loving v. Virginia figure in this latest ruling? In the text, Loving is cited 22 times, mostly by the majority. Both Scalia and Alito ignore it, and Thomas makes the wackadoodle argument about imprisonment being the issue, not marriage. No one says that Loving was wrongly decided because it clearly wasn't wrongly decided.

So if Loving was decided correctly, how does this inform the current case? Neither side makes a slam-dunk argument. The majority doesn't hammer home the point of a couple's status changing as one or both cross a state line. That is the most ridiculous aspect of the situation, and why states are compelled to recognize the marriages and divorces performed by other states.

Recognition or chaos

But it's also a bit ridiculous for one state (Massachusetts) to unilaterally change marriage law in all other states. I supposed the other states could have decided to recognize marriages performed in other states, and maybe we wouldn't have had this ruling. But so many states resisted doing so, and the conditions were set for this confrontation. This was absolutely inevitable. Same-sex couples were:

• Going to get married where they legally could.
• Going to move to states that refused to recognize their marriages.
• Going to sue for their rights. 

I can't respect Roberts' dissent because he doesn't acknowledge this. He wants the legislative process to carry on. To make that decision, Roberts has to ignore the rights of couples who are legally married in one jurisdiction but living or traveling in another.

I stopped reading Alito's dissent because he was whining about how religious people were being labeled as bigots. Alito seems to have missed the facts that 1) a Supreme Court ruling can't prevent public opinion from going that way, and 2) a whiny dissent can't prevent it either. I didn't read Scalia's dissent because I figured it would make me too angry.

So, overall, I was disappointed with the reasoning of this decision. No group really wrestled with the problem of states being required to recognize marriages of other states, and what we're going to do when there are conflicts. Are we going to follow Loving, and now this decision, and force them to recognize the marriages, or are we going to do something else? Who gets to decide?

Finally, what happens when a state allow plural marriage? All hell breaks loose again.

Image:skydancingblog.com

Surviving the same-sex marriage decision

As I wrote often, Rod Dreher, a religious/cultural blogger, regularly moaned about the growing support for same-sex marriage. His complaints reached a pinnacle (or maybe more than one) as he tried to find the culprit for the fall of marriage from a holy sacrament (joining man, woman, and God) to a piece of toilet paper freely available to perverts.

How badly has Dreher freaked out now that the US will have legal same-sex marriage all over the country?

He's not doing too badly. He's on a trip to Italy right now, enjoying the food, history, and street festivals, or preferable all three at the same time. He's got the right idea. Before the total downfall of Western civilization, I'd like to spend more time in Italy too.

Image: theamericanconservative.com

It's rather sentimental of me to wonder whether this opponent has survived the ruling. Not that I really worried that anyone was going to kill himself over this ruling. Nearly everyone saw it coming. Justice Kennedy, the usual swing vote on the Supreme Court, had voted to declare some of DOMA unconstitutional two years ago, so it wouldn't take clairvoyance to foresee this ruling.

So almost all saw this coming. Almost all let the LGBTQ and allies celebrate their victory unmolested. There were rainbow sprinkles all over Facebook, and, with triumphalism, rainbow lighting on the White House. Not exactly tactful or magnanimous.

Image: forum.bandmix.com

Some GOP presidential candidates said stupid things, but that's an everyday occurrence. Let's see, Bobby Jindal called for the money-saving move of abolishing the Supreme Court. I wonder if he followed up with a paean to the Constitution. Based on headlines, Jindal won the 'GOP leader stupid contest' over the perennial winner Ted Cruz. Cruz was probably runner-up, though, with the suggestion that Supreme Court justices face elections every 8 years. This idea suffers from being too complex, especially compared to Jindal's simple and pure stupidity.

Culture warriors warn of several looming crises.

1. The polygamists are coming!
2. The pedophiles are coming!
3. It won't be safe to express anti-gay beliefs.
4. Churches will lose their tax-exempt status.
5. This is the final straw that ends marriage in the US.
6. This is the final straw that ends the American experiment in democracy.
7. Anyone who doesn't cheer on same-sex marriage will risk losing their job.

Except for the panicking dissenting justices, there aren't many who are still predicting the swift demise of the US, so the response is more moderate than expected. After all, not all these looming crises are completely ludicrous. No, pedophilia won't be legalized, but the concerns about the chilling of viewpoints are well founded. (More posts later on that.)

One fascinating thing I learned is how widespread the gay pride movement is. I looked for images of the rainbow flag, and found it in Venezuela, Brazil, Peru, Mexico, Turkey, Israel, Russia, Serbia, Taiwan, Cambodia, China, and a huge number of images for India. The movement for tolerance is a world-wide phenomenon, not just a parochial battle in the US culture war. I still haven't grasped how momentous this movement is.

Image: citizenside.com

Extra. Perhaps before he left for Italy (judging from the tone), Dreher wrote a hilarious post about the future. It includes: polygamy, gay gated communities, all marriages gone queer, and no religious institutions left standing. No irrationality there! Here is Chicken Little:

"I remember a time, practically the day before yesterday, when conservatives who warned that gay marriage would inevitably deconstruct marriage and family entirely were called paranoid bigots."

This prediction is based on one gay novelist's imagination of life in 2035. But that is enough to declare "gay marriage [will] inevitably deconstruct marriage and family entirely." Yeah, right.

Short: Legal thinking of Chief Justice Roberts

This article, though moderately long, is definitely worth reading. It focuses on Roberts' dissent to the same-sex marriage decision. But it also illuminates certain constitutional arguments in a way that makes them accessible to those people (like me) who glaze over from most discussions of 'due process rights' and other legal terms. If you find the term 'activists judges' poorly defined, you'll have a better idea of what it could actually mean in the context of legal thought.

The article also talks about assumed 'fundamental rights' like the right to marry. It ends with a chilling warning about a constitutional philosophy that would send us back to the 1800s and void many laws and regulations, including child labor laws. It's not at all likely to happen, but it's good for a tantalizing what-if scenario to get your blood moving. Sort of like a roller-coaster for the old, decrepit, and intellectual. That describes me and probably everyone on the Supreme Court. Sigh.

You assumed it was a right, but you're not a justice.

Image: flickr.com

Another chance to whack Obamacare

The Supreme Court now has another chance to kill deeply maim Obamacare. This time it's a technical question about whether subsidies can be given in states that don't have their own exchanges, which is a lot of states.

If the court rules that ACA can't give subsidies in those states, that probably throws a few million people off their health insurance. Congress could restore the subsidies, but I don't think that will happen with the GOP in control. They won't care about the suffering of a few million people, who are perhaps mostly Dem voters anyway.

However, the GOP may want to avoid looking hard-hearted, so they'll probably figure out how to blame this on the ACA law, and its complexity, and how it was rammed through without being well-constructed, so it's all the fault of those Dems. They may be able to get away with that story because enough of it sounds true enough.

The GOP may even get extra lucky, and the loss of the subsidies will send Obamacare into a death spiral of massively higher premiums and fewer people covered. Again, they may be able to cause this death spiral without receiving the blame. It's hard for me not to believe that many Republicans are hoping for exactly this outcome.

But at the end of that death spiral will be some very big problems, and ultimately the GOP won't be able to ignore them. There will be a massive number of uninsured people, which will include plenty in the middle class or former middle class, and they won't be forgiving the GOP for the end of readily available health insurance. The GOP will have to come up with an answer, or a partial answer--enough to keep them in office. Maybe they'll cobble something together, but that would be several years down the road. In the meantime, the road will be littered with people bankrupted by healthcare costs or dead from lack of coverage. I doubt the GOP will pay a high enough price for what they wrought--if it plays out this way. I hope we don't get to see if it plays out this way. It's too big a risk for too many innocent people.

Image: bet.com

Extras. Bernstein is much more optimistic than me. This WaPo column is more realistic in the dangers.

The political history of the Supreme Court

I'm not a great student of American history. The last American history course I took was, embarrassingly, in high school. There is one surprising advantage to not having studied a lot of American history--I haven't formed a lot of prejudices that are set in stone. I have a superficial knowledge, but I know it's only superficial, so I'm ready to question all those standard theories that float around.

So, what is the real history of the Supreme Court? I started wondering because of suggestions (among liberals) that the GOP might not confirm a Supreme Court nominee for the rest of Obama's term. Looking back at information about the Supreme Court (mostly from Wikipedia), I saw a number of interesting trends.

FDR through Nixon

Supreme court nominees used to be much closer to the president and much more political. For example, Hugo Black was a senator. Franklin Roosevelt (FDR) tapped him because he was young, from the south, and a strong legislative supporter. Luckily he was also a great fit for the job. He was extremely interested in constitutional questions and developed "textualism," a conservative school of thought on how to interpret the Constitution. This is almost all news to me, and quite fascinating.

Another interesting factoid is that president always tried to push the court toward their political side. FDR did it big time because his first New Deal programs were struck down by a conservative court. FDR made a lot of appointments to the court over his 13 years as president, and he was successful in his goal. The court was fairly liberal due to his selections. Eisenhower wanted to reverse this trend, but his choices weren't so effective. He aimed for conservative (but presumably not Jim Crow conservative), but ended up with Earl Warren.

So even after Eisenhower, the court was fairly liberal. Kennedy and Johnson together appointed four judges, but two resigned after a few years. The balance on the court didn't move much because of their presidencies. Nixon, like Eisenhower, wanted a more conservative court yet didn't get what he hoped from his appointees except for his last appointee, William Rehnquist.

Reagan

By the time Reagan was president, the conservatives in the country were quite fed up with the liberal slant of the court. Per my memory, the biggest complaints were over abortion legalization, the end of school prayer, and limitations on evidence collection and police tactics. However, Reagan didn't give the conservatives what they wanted immediately. For the first vacancy, Reagan nominated the first woman on the court, Sandra Day O'Connor. I wonder how angry his conservative supporters were over that.

His next appointee, Antonin Scalia, probably pleased the conservatives mightily. For the next vacancy, Reagan went with the ultra-conservative Robert Bork. In doing this, Reagan ignored all the buzz that this was going too far. This is just speculation, but I'm guessing that in 1987 (the year of the nomination), Reagan was no longer fully in control of his decision-making. The choice backfired. Democrats were successful in painting Bork as too conservative. The replacement nominee, John Paul Stevens  Anthony Kennedy, was considerably less conservative, to the chagrin of the conservatives.

Reagan's legacy on the Supreme Court were two swing justices and only one solid conservative. The anger and disappointment of conservatives must have been huge. George H.W. Bush had two appointees--another mixed bag of one swing vote and one solid conservative. Clinton, following the established pattern, appointed two liberal-leaning justices.

21st Century - Fully Political

With George Bush II, the conservatives finally got more than lip service. Bush II appointed two solid conservatives. Obama has appointed two solid liberals. At this point, there is barely a swing vote on the Court. Occasionally Anthony Kennedy sides with the liberals, but generally there are five conservative votes.

What I learned in all this:

• Presidents have always tried to nudge the Court into their corner. 
• Conservative presidents have often failed to get conservative judgments out of their appointees. I wish I understood why this happened so often. 
• The pressure to appoint clearly conservative or clearly liberal justices has grown. Both sides dearly want to own the majority on the Court. This may indicate that the Court has become ever more important in political outcomes in the country.
• Professional experience as a judge became more important after Johnson and Nixon--due to some embarrassing nominees and appointees. This allowed the presidents to pretend that they were nominating someone neutral. However, this veneer of neutrality is a sham--nominees fulfill political goals. They aren't neutral legal arbiters, as most judges are supposed to be. 
• The sham is still active and seems to be demanded of both politicians and nominees, so it will continue.

Image: cagle.com

Tsunami of memories: Anita Hill

Just as in Remembrance of Things Past, memories sometimes wash over me with their power undiminished by time. Today, it was because of this article about Anita Hill.

In 1991, George H.W. Bush nominated Clarence Thomas to the Supreme Court. The highest court needed a black justice because the only black justice, Thurgood Marshall, had just retired.

Thomas had been groomed for the Supreme Court by the Republicans. There are few blacks among the Republicans, so it wasn't hard for a black Republican to rise. Witness Allen West, Herman Cain, and Dr. Ben Carson in the past few years. Clarence Thomas wasn't a great lawyer or scholar, but that holds true for all the justices right now. I don't know a major accomplishment of any of them.

What fills my memories was the drama of the hearings for Thomas's nomination. Nominations are pretty dull affairs. There is always effusive praise from one side and attempts at gotcha questions from the other. I'm pretty sure Thomas's hearing was like that, but with the added indignation from the liberals that the GOP had a black man (or Uncle Tom) who talked the same trickle-down, traditional respect-for-authority, conservative line that all the old white men did. However, since he was black, the GOP could pretend that they were a broader party than they were. Indignant isn't quite the word for the liberal response--'ape shit' is more apt.

The liberals weren't doing a good job of derailing the nomination, something that they had succeeded in doing in 1987 with the nomination of Robert Bork, a seriously intelligent and detestable person. It looked as though Thomas, this groomed slap-in-the-face at blacks (or was it liberals?), was going to win confirmation.

Abrupt Shift

Then a scoop erupted in the press. A former associate of Thomas had been interviewed by the FBI about allegations that Thomas has harassed female employees. Additional hearings were scheduled. Anita Hill testified calmly on a Friday. She told about Thomas, in the workplace, discussing scenes from porno movies he'd seen the previous weekend. There was also the joke he made about a pubic hair on his can of coke.

What Anita Hill said had the ring of truth to me. But this is so subjective. To conservatives, she was a "spurned woman" trumped up by radical pro-choice feminists trying to derail the appointment of a solid, fair man.

I watched her testimony, and I also watched Thomas's testimony in that rare Saturday session. Thomas was full of fire and righteous indignation, and he was very believable. He denounced the charges as a desperate and craven attempt to besmirch a honest man, all for venal political reasons. I would have believed it, and many people did, including some co-workers. (Aside: People are generally good as sorting out the weaselly liars, but we aren't so good at identifying the full-throated ones.)

However, the supporting witnesses for Hill were quite strong, recalling how she told them at the time what was happening. Purely on evidence, Hill's story was stronger. But evidence didn't win over political considerations, and Thomas was confirmed.

The Personal Overlaps the Political

What I remember most was Anita Hill telling a true story that wasn't generally heard before. Her boss degraded her in sexual ways, but he got away with it because it was only words. Some commentators castigated her as a liar, saying that no woman would put up with that treatment.

But I knew otherwise. I knew from personal experience that until sexual harassment became a well-known issue, women didn't know what to do when they were harassed. I certainly didn't know what to do when a senior engineer in his 50's took the liberty of putting his arm around my back as we discussed engineering matters, and he kept it there. On one hand, it might have looked like innocuous touch, but it definitely was unwelcome and uncomfortable on my end.

Luckily, his liberties never progressed. I recall vividly how they ended. I ran into him at the bank, and he put his arm around me again. I thought "I may have to put up with this at work, but there's no way in hell I'm putting up with it outside of work." So I jammed my elbow hard into his side. He never touched me again. He avoided eye contact after that too.

I was a twenty-something woman engineer, one of only two in that factory, and there were no harassment reporting programs back then. I wasn't a trail-blazer, and I didn't know what to do. So I did nothing for a while, then I fought back, then it was over, and I never thought "this is a general problem bigger than me." Thank God other people did see the bigger problem and did work to counter it. This was pure progress to a better world. I'll argue with anyone who says otherwise.

Both swore to tell the truth

Image: salon.com

DOMA argle-bargle

I started reading significant Supreme Court rulings last year with the Obamacare ruling. Luckily there hasn't been another ruling I felt compelled to read... until the DOMA ruling in June. A layman's opinion is only mostly useless, but I persist because I want to read and critique the arguments that the justices make.

Majority opinion

The majority opinion spends pages 4-13 justifying taking the case. I readily see how it was justified, since the issues were about due process and especially equal protection. That sounds constitutional to me. After all the justifications, the majority finally indicates its decision at p.20. It threw out section 3 of DOMA for violating equal protection and due process. The 5 to 4 majority is rather harsh about the objectives and motivations behind DOMA:

"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages..." p.21

The majority, beyond using the words "disadvantage" and "stigma," also labels DOMA's intent or effect as to demean, humiliate, degrade, and disparage the unworthy, second class marriages. However, this isn't just the majority's interpretation. When the House passed DOMA, it did so to express, in the House's own words:

"...both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality." p.21

The majority makes a strong argument for its equal protection ruling:

"DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal." p.22

Their argument is: what the states have determined should be equal, the federal government has tried to undo. That sounds like a clear violation of equal protection to me. Not everyone agrees...

Scalia dissent 

Scalia rips into the majority. First, he argues for pages why the Court shouldn't have taken the case, while ignoring all the reasons it should have. Though there were clearly constitutional issues, Scalia claims that the Court can only make such interpretations when it has a case it must settle, regardless of how many other obvious cases on the same issue might be out there (p.2). He would have liked the case to stay out of court until there was a GOP administration that would enforce DOMA and defend it whole-hog. If Obama thinks DOMA is unconstitutional, he just shouldn't enforce it. (Then we could have the nauseating whiplash of DOMA rules changing every four or eight years. But that's not a reason to hear the case now, according to Scalia.)

Scalia does correctly point out that DOMA could be construed as having a positive purpose--consistency of federal response to marriage (p.20). He errs by imputing only good intentions to DOMA, but he shows that the majority errs by imputing only nasty intentions.

Scalia makes a slippery slope argument that the Court will next make same-sex marriage legal in all states, imagining the exact words the Court could use to force same-sex marriage on all states (p.23). Having divined what (he thinks) the majority wants, he then uses the harshest language in the entire decision, but projects it onto the majority:

"[the] Court ... finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity'... By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority..." p.24

Wow. I thought the majority emphasized the unfairness a bit too much, but Scalia saw their bet and went all in. I don't think the majority declared that those who are against same-sex marriage are devoid of human decency, but it must be so because Scalia says it is.

Scalia doesn't bother to discuss the equal protection considerations. That seems to be the crux to me, and hard to defeat, so it's no wonder he doesn't touch it.

The most quoted part of Scalia's dissent was his labeling of the majority's reasoning as "argle-bargle" (p.22). No Scalia dissent is complete without some sort of ridicule of the majority's line of reasoning, but the "argle-bargle" quip wasn't nearly the worst of it.

Alito dissent

Unlike Scalia, Alito spends most of his dissent grappling with the question of equal protection. At times, he's just dismissive: "that framework is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage" (p.10). He spends a long time on classifications and scrutiny questions relating to which classes deserve "equal protection" and which don't.

At the end, he lauds the majority's emphasis on letting states decide. Then for no reason I can see, he blithely skips over equal protection considerations. Sorry folks, no equal protection for you. Still, he "respectfully dissents," in marked contrast to Scalia's fierce and disrespectful dissent.

Justice Thomas signed on to Scalia's dissent. Roberts thinks the Court shouldn't have taken the case, and dissents to any change in the law. By my score, 6 are OK, 1 is a wimp, and 2 are high-handed, insulting autocrats. If you disagree with me, ARGLE BARGLE!!!!

Image: quickmeme.com

A fast look at the Voting Rights ruling

While Congress is stalled (for the foreseeable future), the Supreme Court chugs on through its roster of important cases. It's probably good that two branches of government can still function. However, I don't think I'll be giving out accolades to the justices.

Yesterday, in a 5-4 vote along party lines (which weren't supposed to exist in the judiciary), the Supreme Court removed a provision of the Voting Rights Act that required Department of Justice review and approval of changes to voter law in areas with pervasive voter discrimination 50 years ago. It's easy to imagine that the law is outdated, and these places have taken the lesson to heart, changed their ways, and don't need the supervision anymore... after nearly 50 years of it.

Maybe these places, mostly in the South, have accepted the lesson that voting should be equally accessible to all citizen. However, looking at the whole country, the actual circumstances are different. Republican legislatures all over the country are trying to make it harder to access voting. They pretend that voter fraud is rampant, and that's their excuse for passing ID laws that they hope, secretly in their hearts, will reduce voting among minority, poor [i.e. Democratic] voters. They don't actually take measure to prevent the only pervasive form of voter fraud, which is the pooling of absentee ballots in the hands of professional vote wranglers.

The hope that political groups won't tamper with voting to suppress certain folks hasn't been fulfilled yet. For that reason, the ruling of the Supreme Court is premature, even after 50 years of oversight.

Luckily, we will still have citizen and media oversight. Suppression efforts are occurring, and will continue to occur, and will hopefully backfire as they did in 2012. Keep watching, keep reporting, keep embarrassing the schemers, the hacks, the operatives, the spin-shysters. All the tools to do that and to disseminate the information are available, thank God and the internet.

If I can repeat my motto for this year: Whatever you try to hide, it ain't going to stay hidden. Everybody, please make it so.

Fraud, or fair exercise?

Image: mfs-theothernews.com

Extra. I considered the possibility that monitoring isn't necessary anymore, but the posts about this ruling didn't support that: Pro-ruling, current tricks, even an enumerated list (probably incomplete).

Short: Putting it to Scalia

I'm working on a longer post about why Supreme Court Justice Antonin Scalia is wrong in his judicial attacks on homosexuality. In the meantime, I want to skewer him on his argumentation. Let me paraphrase:

If we cannot have moral feelings against basketball, can we have it against murder?

I hope I've just reduced Scalia's argument to absurdity. That was easy.

Of course, basketball isn't as bad as this...

Image: justpiper.com

Injustice from the justices

Phew. I think this will be my last post on the Obamacare ruling. I've worked through the vast majority of my ideas. There were a lot: 

• The strangeness of Roberts not voting with the conservatives
• The appalled reaction of conservatives
• The reasoning of the ruling and the dissent

This post is about the reaction from the close colleagues of Chief Justice Roberts. 

Departure from normal standards

The Supreme Court is an insular institution. The justices don't have the electoral pressures that require most politicians to communicate with the public and explain their actions. Also, leaks of insider information from the Court are rare. So this case is a major exception, which adds another layer of oddity to this decision.


The leak was made to Jan Crawford, a CBS reporter who's scored important interviews with several justices. Her first article told about how Roberts initially agreed with the four conservative justices to strike down the health insurance mandate, but during the course of writing the opinion he found grounds to uphold it, thus siding with the liberal justices.

 Is this inside report credible? Yes.

I don't automatically credit this article as factual. However, some of the reporting is backed up by information in the Court's 193-page ruling. Ms Crawford writes:

And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own." The conservatives refused to join any aspect of his opinion, including sections with which they agreed...

This is absolutely borne out by the ruling. Roberts writes how the mandate cannot be upheld under the Commerce Clause. The four conservative justices agree, but express that opinion separately instead of in a concurrence with Roberts. 

Determining the Viewpoint of the Leak

Since the report passes at least one test of credibility, I'm inclined to believe that it's an accurate report. However, it's a report that comes from a particular viewpoint. Considering that it gives details about the interaction of the conservative justices among themselves and with Chief Justice Roberts, it evidently came from a conservative justice or sources close to conservative justices. 

The article contains speculation (whose we don't know) that Roberts was influenced by outside pressures, not only considerations of law and constitutionality:

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it... Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending... But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

Does this information come from John Roberts himself? I doubt it. It sounds like someone's analysis of his actions and motives, not his own self-explanation. The article is filled with observations from the viewpoint of one or more conservative justices:

At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Note the view here is from one of the conservative justices. It's not Roberts' viewpoint of the incident, or that of a liberal justice, nor it is likely to be the report of an unbiased fly-on-the-wall. One last example:

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this." ...Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

Anger of the Right(eous)

In another, shorter article, Ms. Crawford writes about the anger of the conservative justices:

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position - and relatively late in the process - infuriated the conservatives. ...Of course it's unclear why he switched. He may have been focused solely on the law. But that is not what some of his colleagues believe.

The picture that emerges is one of intense anger clothed in restraint. Restraint is certainly to be expected from the highest judges in the country. However, the level of anger is surprising. Why can't the conservative justices accept this as a good faith difference of opinion?

The level of their anger is indicated by their refusal to formally concur with Roberts' opinion on the limits of the Commerce Clause. He went against their view, so he received the force of their righteous anger: if you're one of us, you better stay one of us. No allowance for difference of opinion.

The next court term could be mighty interesting if these justices continue behaving this way. Let's hope they cool off during the summer, because they are stuck together in these lifetime appointments. Beyond that, I personally hope to see continued independence from Roberts. I'm rooting for anyone who'll break out of the armed-camp mentality of the politics in this country. 

 Image: chickaboomer.blogspot.com