Posts Tagged ‘Clarence Thomas’
Thursday Links!
* Is it too late? The long view offers reason to hope. From Kim Stanley Robinson.
* Mourning and Melancholia in the Anthropocene.
* U.S. to Retire Most Chimps From Research.
* The long road to marriage equality. Adam Kotsko: Marriage and Meritocracy.
* In a previous post on this site I announced a plan for the creation of MOOA, or massive, open, online administrations that would supplant the thousands of separate administrations currently managing the affairs of America’s colleges. The MOOA idea was, of course, satire. However, I must report that two educational consultants contacted me to offer their services in bringing my MOOA to the market. Additionally, three separate reporters called to discuss the MOOA concept. When I explained that MOOA was a satire, one asked, “Are you sure?”
* What we need instead, I think, is a study of neoliberal bias in the university, particularly since the rhetoric of neoliberalism has now become ubiquitous, the lingua franca of administrators and even many faculty. In the 1990s Bill Readings observed that the new rationale of the university was the amorphous, technocratic one of “excellence,” rather than the traditional ones of disciplinary reason or national culture. The incantation of “excellence” no longer has quite the same currency; the new neoliberal mantra includes the buzzwords “disruption,” “innovation,” and “choice.” Part of their force is that they seem self-evident goods: who would be against innovation or choice? But I think that they sidestep some of the crucial problems of higher education, especially regarding equality. According to all the statistical markers, college is subject to a steeper class divide than it was 40 years ago, and academic jobs show a sharper stratification. This violates the best hope of the American university. What good is innovation if it brings us a more inequitable world?
* The latest update on Capturing the Friedmans.
* …given what we know from the big picture, I think it’s safe to say that ostensible reason for the long-term collapse in humanities enrollment has to do with the increasing choice of women to enter more pre-professional majors like business, communications, and social work in the aftermath of a) the opening of the workplace and b) universal coeducation suddenly making those degrees relevant. You’d have to be pretty tone-deaf to point to their ability to make that choice as a sign of cultural malaise.
* I used to maniacally play Solitaire Tic-Tac-Toe to keep myself sane in high school. If I’d known about Tic-Tac-Toe2, I might never have graduated.
* And good news everyone! The housing bubble is back!
‘Call It a Longshot If You Like’
The “maybe a savior will emerge to save the GOP from itself” fantasy genre has finally been perfected. Ladies and gentlemen, President Clarence Thomas.
‘A Judicial Officer or Employee Shall Not Accept a Gift from Anyone Who Is Seeking Official Action From or Doing Business with the Court’
Forty-three members of Congress have now joined Chris Murphy’s call to end the Supreme Court’s ethics immunity. This number should be much, much higher. Via @_machinic_.
Enjoy Your Plutocracy – 2
More on yesterday’s Walmart v. Dukes decision from Dahlia Lithwick and Scott Lemieux. Here’s Lemieux:
…if you can’t use statistical and anecdotal evidence to prove gender discrimination — and, as he apparently admitted about racial discrimination and the death penalty during the deliberations in McKleskey v. Kemp, it’s clear there’s no amount of statistical and anecdotal evidence that would convince Scalia — then there really isn’t a law against gender discrimination at all. There’s just a law against having your company being run by complete idiots. Any amount of gender (or, presumably, racial) discrimination is acceptable to the Court’s Republican appointees as long as you’re not dumb enough to actually explicitly state it as a formal policy.
Elsewhere in Supreme Court news, we have ThinkProgress reporting that Clarence Thomas decided three cases where the American Enterprise Institute filed a brief after AEI gave him a $15,000 gift.
Monday Links
* BREAKING: The rich are getting richer.
* ThinkProgress covers the growing Clarence Thomas ethics scandal and notes other justices have been forced out for what Thomas is known to have done.
* Empire, Nevada: The last company town shuts down. Via MeFi, which notes the connection to the Burning Man festival.
* Muppetational: YouTube has the trailer for The Muppets.
* And Hendrik Hertzberg explains the Anthony Weiner scandal.
Weiner’s sins, being wholly online, basically onanistic, pathetically “immature,” and totally without direct fleshly carnality, are literally ridiculous. They lack the swaggering macho that pushes more traditional, arguably crueler male transgressions—having affairs, whoring, fathering children out of wedlock—into the comparatively (though only comparatively) safer territory of “boys will be boys” and “men are like that.”
Let us never speak of it again.
A Political Objection in Legal Garb
Laurence Tribe takes “Is Health Care Reform Constitutional?” for a ride.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
With respect to the mandate, he takes on the sophistry that asserts a constitutionally relevant difference between “activity” and “inactivity” as well:
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
He seems to go so far as to predict an 8-1 decision in favor of the ACA, with only Thomas as the lone dissenter:
To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity. […] Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.
I think Scalia’s intellect and integrity are highly overrated, and think Roberts and Alito will almost certainly vote on politics rather than principle—so I’m still predicting a 4-5 verdict in favor of the ACA, Justice Kennedy for the save. Prove me wrong, kids! Prove me wrong.
You Are Bad and You Should Feel Bad
Whatever else might be said about the Koch brothers’ annual fundraising and strategy event, for sitting Supreme Court justices to attend is obviously completely obscene.
IOKIYAR
Of course it’s not important that Justices Alito, Scalia, and Thomas attend secret right-wing fundraisers. Honest question: is there anything remotely comparable going on with the Court’s left wing?
Fear the Court?
TPM’s long “Is Health Care Reform Constitutional” post today says that Bush v. Gore and Citizens United aside the Roberts majority is unlikely to strike down any part of the health care bill.
Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”
Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.
And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.
There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.
Is Health Care Reform Constitutional?
Last seen reminding state agencies how they can and should legally discriminate against homosexuals, Virginia Attorney General Ken Cuccinelli is already promising to file a legal challenge to tonight’s health care bill. This of course leads us to another exciting round of “Is Health Care Reform Constitutional?” Tonight’s contestant is Randy E. Barnett of Georgetown Law, writing in the Washington Post. Barnett appears much more agnostic on the specific legal questions involved than previous contestants like Erwin Chemerinsky, focusing instead on the aggressive radicality of the Roberts majority:
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.
You might have heard of it: Bush v. Gore.
Of course I worry about this, because I think Roberts, Scalia, Alito, and Thomas would overturn health care in a heartbeat, on whatever spurious ground presented itself. But while I don’t always agree with him, I think Kennedy has integrity, and I don’t think he would go along with it. (Have to admit, though, I’ve never been more sad to have to say “no relation”…)
Thrusday Roundup
* In the Safford v. Redding case that got so much attention around the time of the Sotomayor nomination, the Supreme Court has ruled 8-1 that strip searching a thirteen-year-old girl on the word of another student in search of ibuprofen is unconstitutional. Clarence Thomas was the lone dissent, issuing a Cassandra-like warning of the plague of pills in underpants that is sure to follow. If we will not strip search our thirteen-year-olds, I ask you, who will?
* ‘Seeking a tougher climate bill, green groups set eyes on the Senate.’ So, giving up then.
* If anything it’s amazing Tim Burton waited this long to do Alice in Wonderland.
* My “Haloscan is broken” AskMe went completely unanswered. Haloscan remains broken. Situation dire. Hope lost.
* Some screenshots of Fox News party-ID follies. From Cynical-C.
We’re Gonna Need a Bigger Meme
We’re gonna need a bigger meme: Clarence Thomas and empathy, Samuel Alito and empathy.
I had no idea Republicans were nominating so many activist judges.