Justice Scalia, the Insane Literalist

On a Sunday morning show, in response to questioning on which weapons are protected by the Second Amendment, Justice Scalia said this: "Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided."

You have to hand it to Justice Scalia: A literal interpretation of the Second Amendment would indeed seem to allow grant the People the right to carry a hand-held rocket launcher, grenades, and M-16s. And a suitcase nuke too, since it has the benefit of meeting both the definition of "arms" and of "hand-carried" (I have carried a suitcase before, two in fact, haven't you?). And since the Founding Fathers were prophets and Justice Scalia hears their voices every day...

And now, let us pray... Dear Founding Fathers, Hallowed by Thy Name...

The Constitution? Just Parchment.

The latest gem by David Michael Green, inspired by the recent Supreme Court ruling on the constitutionality of the Affordable Care Act, has arrived. Here is an excerpt:

"Our current system of jurisprudence – which is often really our current system of legislation – is wrong on all sorts of levels. It was, to begin with, a bad idea for these justices to be deciding health care policy in America. And it was an even worse idea for them to be doing so on the basis of attempting (or pretending to be attempting) to decipher the Founders’ thoughts about the provision of health care to the public, more than a century before governments anywhere ever contemplated providing such services, and two centuries before it became the norm in developed countries."

Enjoy and learn.

And, if you would, please go and peruse my thoughts on the US Constitution, which I wrote about in 2008.

Hunter Hits Another Bulls' Eye

That'd be Hunter over at Daily Kos, and his latest bull's eye is his post about this week's Supreme Court Kabuki Theater job.

You can read it here.

Broccoli, Vile Weed! (And Even Viler Justices)

There's a famed episode of Seinfeld where Jerry, in order to save a friend's job who works at Kenny Rogers' Roasters, accepts to switch apartments with Kramer, who had started a protest against the restaurant in an attempt to put it out of business so he could resume a regular sleeping schedule (the restaurant's red neon sign prevented Kramer from catching a good night's sleep).

Later in the show, though, Jerry discovers that in spite of the protest, Kramer (and Newman) has become addicted to the chicken, and figures out that Kramer would not have the guts to resume his ploy to put the restaurant out of business even if he had to go back to his apartment. Jerry finds out because he meets Newman at Kenny Rogers' and the clerk who hands Newman the order says "Oh, don't forget your broccoli." Jerry says "Broccoli? You wouldn't eat broccoli if it were deep-covered in chocolate sauce!" Newman's half-heartedly responds "I love broccoli!", so Jerry exhorts him to have some broccoli, then. Newman does and proceeds to spit it out after almost choking on it and exclaims "Vile weed!". That's how Jerry uncovers Kramer's ruse and forces Kramer to switch back apartments.

This week's health care arguments in front of the Supreme Court reminded me of that episode, because broccoli was a central plot twist in the Seinfeld episode and was also a central argument in Justice Scalia's opposition to the Affordable Healthcare Act. Scalia, whose antics are legendary and whose intelligence and rhetorical abilities are obviously greatly overrated, contended that allowing one government mandate (the individual mandate to purchase health care or pay a tax penalty) might lead to another (the government's hypothetical mandate to all Americans to purchase broccoli).

Paul Krugman was one of many commentators who pointed out that Scalia's argument is disingenuous because one American's failure to purchase broccoli does not have any effect on another American's ability to purchase the vegetable or on its affordability. Justice Scalia is a sure vote in the pocket of the Act's opponents, no doubt. His clumsy rhetoric and his inability (or unwillingness) to understand the difference that goes between the grocery market and the health care market.

But where Don Verrilli, Solicitor General of the United States, caught a lot of flack in the mainstream media for his fumbling defense of the ACA's individual mandate requirement, Justice Scalia caught almost none for his pedestrian offense against logic and his attack against the Act's pivotal requirement. This difference in treatment is another example, in case one was needed, of the ridiculous job that the MSM does in informing the American public about the content of the issues. No wonder so many Americans are confused and think that both sides are equally guilty for the country's failures.

Perhaps, as Newman says in the Kenny Rogers' Roasters episode, broccoli is a vile weed. There should be no doubt in anyone's mind, however, that Justice Scalia's presumed defense of individual liberty in the name of broccoli is very vile weed.

Now That The Health Care Arguments Have Been Heard, Let The Arguments Begin

For the insatiably masochistic, like me, here are a couple interesting posts about this week's SCOTUS hearings on health care.
The Supreme Court, the Affordable Care Act, and the Slippery Slope (by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago)
No Surprise: The Supreme Court Is Hostile To Health Care (by Adam Winkler, Professor of Law, UCLA)

Start From Scratch

I said it before and I will say it again: The best thing that the Supreme Court could do for all of us is shoot down the individual mandate that is that foundation of the Affordable Healthcare Act. In saying it I know that I will draw the ire of many, many of whom I sincerely respect.

As you know, I am no libertarian and no conservative, but I do believe that the Affordable Healthcare Act is a total screw up of the promise of health care for all, brought about by a weak President and Democratic majority. It was a half-assed, half-hearted attempt to make health care accessible to all Americans without pissing off the insurance industry and the medical-hospital complex too much. It was never, in spite of the name, an attempt to make health care more affordable. If it had been, cost meaningful controls would have been part of the law. They are not. The closest the law gets to some form of cost control is to mandate that insurance companies must spend 80 cents on the dollar on health care, which is no cost control at all, because it does nothing to prevent costs from rising at the rate they have been and beyond.

At this point, the best thing that can happen is for the Supreme Court to declare the individual mandate unconstitutional. Send the whole law back to the drawing board, and let the states deal with creating a universal health care system for its residents. That's how universal, single-payer health care started in Canada. That's probably what it will take over here.

If Obama and the Democrats had really wanted to make health care affordable and accessible to all Americans, all they had to do was to open enrollment in Medicare to all Americans who wanted to enroll. If you want to achieve the goal of bringing the USA up to the same level of humanization as all advanced countries, it should be a piece of cake to do it for the country that constantly, and unjustifiably, calls itself the number one in the world. If you wanted to have every American citizen and legal resident covered by a universal health care system, do it through taxation: slash the military budget, and redirect that money to provide your people with what most other civilized countries regard as a basic human right.

Anything short of that is a hoax. The President and too many Democrats viewed health care reform not as a goal in itself, but as a means of currying and keeping political favor. Let them deal with the consequences. And apologize to all who will suffer because of their short-sightedness.

Should Clarence Thomas Be Impeached?

In case you haven't heard, we have a couple of Supreme Court Justices who have been involved in fundraisers and political activity for the right wing organized by some of the biggest corporate interests in the world. The two are Justice Scalia and Justice Thomas. It is rather ironic that they would let themselves get involved with corporation-sponsored political retreats and events since they like to call themselves "originalists", and many of the Founding Fathers considered corporations the greatest threat to the democracy they had founded. In fact, the Founding Fathers would probably be shocked to know of Citizens United, which further affirmed the concept that corporations are human too (see "corporate personhood").

Justice Thomas was recently in the news when his wife, Ginni Thomas, left a voice mail for Anita Hill, asking the poor woman why she has not apologized to her husband in all these years for smearing him during his Senate confirmation hearings with accusations of sexual harassment. That is not the kind of publicity that a SCJ might have wanted, but alas, Ginni had different ideas for her husband.

As it turns out, Ginni Thomas has again become a source of trouble for her husband. Scratch that. She may not be a source of trouble, but she features in the latest Clarence Thomas fiasco.

As Politico reports,

Like all federal judges, Thomas must file annual disclosure reports on his personal finances, but he had omitted details of his wife’s earnings in what he wrote was a “misunderstanding of the filing instructions.” He also had checked a box marking no spousal income.

After this discovery surfaced, Justice Thomas had to amend 13 years' worth of financial disclosures, to include his wife's income from sources like the Heritage Foundation and the Republican leadership in the House.

Common Cause, the watchdog organization that made the discovery about Ginni Thomas's undisclosed income, says that Justice Thomas explanation for the omission is implausible, as the Daily Kos reports:

“Justice Thomas sits on the highest court of the land, is called upon daily to understand and interpret the most complicated legal issues of our day and makes decisions that affect millions,” said Common Cause President Bob Edgar. “It is hard to see how he could have misunderstood the simple directions of a federal disclosure form. We find his excuse is implausible.”

As Jed Lewison correctly points out in his Daily Kos post, "[i]f Clarence Thomas violated the public trust, he has no place on the Supreme Court -- he ought to be impeached and removed from office."

I'd say so, wouldn't you?

Scalia, Thomas's Role in Citizens United Questioned

Hot off the presses, the group Common Cause issued the following statement on its website:

Common Cause is asking the Justice Department to investigate the apparent involvement of Supreme Court Justices Antonin Scalia and Clarence Thomas in political strategy sessions hosted by Koch Industries, the nation’s second largest privately held company. Common Cause contends that these activities, if substantiated, constitute a conflict of interests that would require the Court to vacate its judgment in Citizens United v. Federal Election Commission, a landmark ruling that ended restrictions on corporate and union political spending.

Read the full letter that Common Cause sent to the DOJ.
And by the way, did you notice how cries of judicial activism from the Right were conspicuously absent in Citizens United?

Al Franken, People's Hero

That, you will have to admit, is a pretty catchy headline, because pretty much everybody in the U.S. knows who Al Franken is and because the calling someone a "hero" is pretty sure to raise curiosity in readers. "Hero? What did he do?"

In sum, Al Franken gets it. He gets what it means to be an ordinary American. But not only he gets it, he cares. And he is a United States Senator. It takes someone pretty heroic, if you ask me, to sit in the same room as people like Blanche Lincoln, Max Baucus, and Jon Lieberman (not to mention any of his Republican colleagues) and not to lose one's head and either strangle them or shoot oneself in the head. Though they sit in the same chamber, and are united by a common title, they have nothing in common. Because Lincoln, Lieberman and Baucus are first and foremost interested in keeping their jobs. Sen. Franken is interested in keeping his job too, I am sure, but not for the sake of the job, but for the sake of those he was elected to represent: the people of Minnesota, yes, but also you and me.

So it is with pleasure that I am linking to the text of Franken's keynote address (PDF) at the Eighth Annual American Constitution Society National Convention, delivered only a couple of days ago. It is well worth reading, because it contains a healthy and needed reminder of what the role of the Supreme Court is, and what a good Senator can and should to to ensure that Supreme Court appointments to come offer better representation to ordinary Americans (understood as Americans who do not the money, influence, and power to appoint and or buy their own personal judge or Justice).

PSA: You Have The Right To Remain Silent, As Long As You Speak First.

The always interesting AdamB over at the Daily Kos remind us of today's SCOTUS ruling about Berghuis v. Thompkins. Thompkins had assumed that by refusing to answer most of the questions posed by the police officer who was questioning him about a murder he had affirmed his intent to avail himself of the right to remain silent. However

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.

Thompkins was subsequently charged with first-degree murder.

I take no firm position on this ruling, as it may have hidden implications that may sway me one way or another. In the meantime you can read all about it at the Daily Kos.

Oh, and... if you get arrested on suspicion of a crime, remember you now need to momentarly suspend your silence in order to tell police officers that you intend to avail yourself of the right to be silent. Huh? That's right.

The Supreme Cross

Adam B at the Daily Kos has a very interesting post about Salazar v. Buono, a case that has been heard by the Supreme Court recently, concerning an unofficial memorial to the Veterans of WWI in the form of a cross somewhere in the Mojave Desert.

It is a very interesting read, with some excellent highlights of what various Justices have written in their opinions.

The Sky Is (Not) Falling

Mr. Groothuis of The Constructive Curmudgeon can always be counted on to make unnecessarily inflammatory statements; like this one:

"On April 19, The Supreme Court will decide whether campus Christian groups, such as Navigators and InterVarsity, can exist as official groups when in light of the fact that they require certain beliefs and behaviors of their members. This is another choice between liberty and tyranny."

It's not that I don't believe what Mr. Groothuis says, it's that I have learned not to trust him. So I went and checked the facts of the case and--not surprisingly--liberty and tyranny live only in Chicken Little Curmudgeon's head.

The scare-mongering post on the Curmudgeon's blog refers to Christian Legal Society v. Martinez, which will be heard by the Supreme Court next Monday. The gist of the case (as I understand it) is this: Can a public institution refuse to officially recognize an organization that prevents those who do not share its religious and moral values from becoming voting members? More specifically, in the case at hand, can Hastings College of Law, a publicly-funded school, deny the use of its funds, official logo, and other privileges to an entity, specifically Christian Legal Society, which practices discrimination as a requirement for membership (a student club, for example)?

It is important to note that lack of official recognition does not equate the prohibition to exist or to operate on school grounds, or to communicate via certain channels provided by the institution.

If you are interested in the facts of the case, and the implication of the possible rulings I recommend that you click on the preceding links. I also recommend that you read Prof. Volokh's detailed considerations on the case, expressed in various posts of his. Then you can decide for yourself if Mr. Groothuis is right in suggesting that CLS v Martinez is a choice between tyranny and liberty. I don't, and I offer this piece of advice to the tragicomical Curmudgeon:

When a party is sure of the force of its reasoning and of the legal validity of its viewpoint it does not need to resort to hyperbole and fear to secure support for its position.

A choice between tyranny and liberty? Only in Chicken Little's Curmudgeon mind.

The State Of The Union Is... Gullible

Robert Koehler, editor at Tribune Media Services and nationally syndicated writer, is right on target when he says the the source of corporate power is the people's gullibility.

Glenn Greenwald's Perspective On Alito's Behavior At SOTU

A few minutes ago, I posted a link to UCLA Professor Adam Winkler's analysis of Justice Alito's reaction to President Obama's rebuke of the Supreme Court's Citizens United ruling.

Then I came across this post by Glenn Greenwald, who offers a compelling perspective on what Alito's outburst means for the Supreme Court's (lack of) credibility in the eyes of reasonable people. It is well worth reading.

UCLA Law Professor Addresses Justice Alito v President Obama

During last night State of the Union address, President Obama rebuked the Supreme Court's recent ruling on Citizens United v. FEC, provoking an unseemly, if contained, reaction by Justice Alito, who was caught muttering "That's not true."

Professor Winkler, who teaches at the UCLA School of Law and is an expert on constitutional law, sheds a little light on the incident.

Much Needed Perspective On "Citizens United"

Mitchell Bard has an interesting post about the Supreme Court's ruling on "Citizens United v. FEC". Its main points:

a) It is absurd to compare the power of unions to the power of corporations: There is no comparison. Period.
b) Wanna talk about judicial activism? Then take a look at what the Roberts court has done in just a couple of years.

You can read Bard's post here.

Ed Brayton Misses The Point

I agree with (and often quote) Ed Brayton from Dispatches From The Culture Wars much of the time, but in this post I think he misses the point of the gravity of the Supreme Court's Citizens United decision. Says Ed:

I know a lot of liberals are very upset by yesterday's Supreme Court ruling in Citizens United v FEC, but frankly I think it's much ado about little. The standard reaction seems to be: "Oh my god, corporations can now spend tons of money to influence the outcome of elections." But I've got news for you: They already do that. They always have. And the campaign finance laws did not prevent it.

And then he goes on to say this:

The fact is that the campaign finance law that the court struck down was never really intended to reduce corporate influence over elections in the first place. It was designed to give the illusion of reducing corporate influence over elections.

This, of course, is true. It's not that corporations did not already spend millions and millions of dollars to influence the result of elections.

The problem with Thursday's ruling is that it further reinforces the opinion that money is a natural means of securing free speech, and that corporations are entitled to the same free speech protections in the political arena as individuals do without being exposed to the same liabilities that are attached to physical persons. Corporations cannot be put to death, they cannot be imprisoned, they do not have post bail, and so forth. This creates a class of supercitizens that the Founding Fathers would not conceivably have endorsed. In fact, all evidence points to the contrary: Founding Fathers feared the rise of corporation against the interest of the nascent Union. How supposed originalists like Scalia and Thomas failed to see this is a testament not to their dedication to preserving the original intent of the Constitution but to the degree of their subservience to the particular interests they represent.

Ruth Marcus on "Citizens United"

Ruth Marcus of the Washington Post attacks the "shoddy scolarship" of this week's Supreme Court campaign financing decision.

Supreme Shame

Please read this excellent editorial from the New York Times on the poisonous rationale and the disastrous effects that yesterday's Citizens United v. FEC is certain to have on our already corrupt political process.

The Day Democracy Died (UPDATED)

In a stunning display of judicial activism, the kind that conservatives are prone to decrying, today's outrageous Supreme Court ruling sounded the death knell for democracy in the United States.

Corporations and unions (but corporations especially), with all their financial might, will be able to buy political favor in ways to date unprecedented. Their ability to influence the electoral process has been blown to unimaginable proportions by the Courts' corporate servants with today's ruling.

This is not a Republican vs. Democratic issue (though Republicans, in their role of defenders of corporate interests, are likely to benefit, at least initially): It's an American issue.

Events like these warrant a popular revolt, preferably a peaceful one, but a revolt indeed.

UPDATE 1
It is impossible to overstate the destructive import of the Roberts' Court decision. Some are already calling it the worst decision handed by the Supreme Court since Dred Scott, and that is a very high bar to pass. I will keep adding updates to the original post, below.

Here are two important opinions from Jason Linkins and Dahlia Litwick.

UPDATE 2
Senators Snowe (R-ME) and McCain (R-AZ) have expressed their disappointment with today's Supreme Court decision on unlimited corporate funding for political advertising

UPDATE 3
Greg Palast has a very troubling take on the Citizens United ruling.

UPDATE 4
In a somewhat rambling post on the Daily Kos, Potatohead nails the problem with today's SCOTUS Citizens United ruling:

Giving corporations this complete freedom of speech, "money as speech", without also constraining them as we the people are constrained by our needs and the natural world, does nothing more than grant any of us, who have sufficient wealth, [the right] to act above the law, doing harm without accountability, and stand above others, violating equality of law, and violating the social contract, checks and balances necessary for an equitable social justice.

That's what this ruling did. It says that really ugly people can invoke a corporation, do harm through it, profit from that, then place all accountability on the corporation, where our means for legal remedies are largely ineffective.

This is a mistake.