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SCOTUS Is Wrecking The Societal Safety Net

The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

The Constitution doesn’t give SCOTUS the power to make these decisions. An earlier version of SCOTUS arrogated the power of judicial review to itself. Whereas the other branches have to justify their exercise of power by reference to the Constitution, SCOTUS justifies its power by pointing to an ancient precedent set by itself. For a discussion of this history and a defense of judicial review, see this article by Erwin Chemerinsky in The American Prospect.

To defuse protest against this power grab, for a long time SCOTUS exercised its power sparingly, and only in egregious cases. Perhaps the first instance of overreach was Dred Scott, which was reversed by the Civil War and the Reconstruction Amendments.

When SCOTUS got out of control in the 1930s, striking down New Deal legislation repeatedly, the other branches took aggressive action to protect their Constitutional powers.

In the 1970s conservatives and radicals rebelled against the Civil Rights cases and other changes wrought by the Warren and Burger Courts. In response, Republicans stacked SCOTUS with right-wing ideologues who have now run amok.

When I say “run amok”, I mean that all of the important decisions of the six SCOTUS right-wingers ignore the interests we all share in living in a safe and secure environment. It’s as if they believe that, as Margaret Thatcher put it, there is no such thing as society. Worse, the individuals affected by the outcomes are never heard, and the decisions only recognize the interests of a tiny minority. This post is focused on gun cases, but there are others equally vile.

New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.

In US v. Perez-Gallan, the defendant was charged with carrying a gun while subject to two court orders barring such possession. The District Judge, David Counts, held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.

In Cargill v. Garland, the 5th Circuit en banc ruled 13–3 to invalidate an ATF regulation banning bump stocks. It claims that a firearm equipped with a bump stock is not a machine gun within the statutory definition, so the ATF regulation banning them is not within its statutory power. There’s a conflict among the Circuits, so the SCOTUS death panel has the opportunity to promote murder by machine-gun equivalents.

It’s worth noting that John Roberts demands governmental protection for all these judges to insulate them from the dangers they create.

None of the endangered parties are before these courts. Perez-Gallan’s ex-wife isn’t there. In the bump-stock case none of the people murdered in Las Vegas are there, nor are their families and friends, or the people who ran or cowered in fear. None of us normal people from Chicago testified about the impact of guns on our lives after months of deadly violence, car-jackings, road-rage shootings, and mass killings like the attack on the Highland Park Fourth Of July Parade.

So who was present? Well, in Bruen the Appellants are the New York State Rifle and Pistol Assn, and a couple of losers who don’t qualify for a concealed carry permit under New York law. In Cargill, the Appellant is a gun nut who turned in several bump stocks and then sued. Perez-Gallan is a truck driver who is subject to a domestic abuse protective order from Kentucky barring him from gun ownership and a separate order barring possession of guns while released on an assault charge. In each case, the opposing parties are government officials.

In other words, murder-neutral courts make these decisions in a bubble, where the only parties are government officials and gun fanatics.

Now I’m sure that the defenders of these laws and their lawyers are dedicated, hard-working, and skilled. But that’s not the issue. The issue is that courts are free to decide societal questions without regard to the specific tangible concerns of the people whose lives are at stake in these cases. After Bruen, the interests of normal people are irrelevant. Only the interests of gun fanatics are relevant. Courts, parties, and lawyers don’t have to look at the coffins of the dead, or the scars of the damaged. They don’t have to consider the psychological impact of shattered bodies on the families of the dead and wounded. They are instructed to ignore the consequences of their decisions. They pretend it’s all just words in a game of legal Scrabble.

They can also ignore the purposes of the Constitution, set out in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These decisions don’t insure domestic tranquility, they don’t promote the general welfare, and they don’t secure the blessings of liberty for the vast majority.

Instead, they insure domestic violence and homicide. They insure that none of us can go to a Church, a grocery store, a concert, or a Fourth of July parade without fear of being shot. They endanger the lives and liberty of every last one of us.
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Photo by Arvell Dorsey Jr. via Flickr.

Year-End SCOTUS Rant

This past year brought us the full flowering of a central project of the filthy rich white people who fund the insurrection party: the takeover of SCOTUS by a gang of hardline fanatics. Big Wallet Boys don’t care about religion, they worship money. They want SCOTUS to screws up any government regulation that slows down their plundering of the American economya and Planet Earth. But they don’t care what SCOTUS does on culture war issues because they are not affected.

Of course SCOTUS has always been politically conservative and a blight on the promises America made to each of us. The few sprinkles of decency we’ve gotten over the centuries were either a) tiny steps towards enabling all Americans to benefit from Constitutional rights enjoyed by white men, or b) grudging reversals of old precedents inflicting the prejudices and hatreds of dead rich white men on we the living. For a detailed look at the disgusting history of SCOTUS on individual rights, see The Case Against The Supreme Court, by Erwin Chermerinsky

The provocateurs supported by the rich use culture war issues to anger up the rubes and while they’re distracted, SCOTUS can work toward the goal set by the rich: enabling their moneymen to steal the country blind and route us to an unlivable future.

We can identify the goals of the longer serving members. John Roberts is dead set against the Voting Rights Act, and has never missed a chance to use a case with a voting-related issue to subvert it. Clarence Thomas and Sam Alito have been stewing in their own bile so long they are fully rotted; they both live to stick it to the libs.

In 2022, though, we got bitch-slapped by the revanchists, including the three religious zealots appoint by Trump and McConnell. The Holy Six imposed their religious views in a number of cases, ruling that women have no right to control their own bodies, that coaches are free to dragoon their players into worshipping the god of the coach’s choice, and that religious leaders are free to spread a pandemic.

The big casualty is rational jurisprudence. In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions the Holy Six, the rubes, or rich people don’t like, and delaying justice through the shadow docket.

The result of these deviations from normal practice is the utter lack of stability. On Twitter law profs ask what they should teach about Constitutional law. The Fox News Six make it too easy: the Constitution means only whatever five of them say on any given day. The same question can be asked about Administrative law: is there any? And the power of Congress: does it have any? And the power of the Executive: does a Democratic President have any power? Not if SCOTUS doesn’t like it.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling people. Courts do this by interpreting and applying terms like liberty and due process found in the Constitution. Courts have always lagged behind the consensus of the American People on issues of rights, but change has come, if at a frustrating pace. For example, at least for now, governments don’t execute very many mentally ill people.

SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.

In other words, you don’t have the liberty of not being murdered by an abusive spouse. And you don’t have the liberty of going to a school, a place of worship, a concert, a grocery store, or a parade unless you are willing to take a bullet from a person armed by SCOTUS.

We can’t protect ourselves from corporate depredations either. SCOTUS restricts government regulation for years if not forever. It strikes down every law it doesn’t like, by which I mean any law rich people don’t like. In West Virginia v. EPA, it ignored the long-standing rule that SCOTUS doesn’t issue advisory opinions when it struck down a regulation of air pollution that was withdrawn before it ever took effect. And it invented a brand spanking-new doctrine, the major question doctrine, to arm itself further against Congress trying to regulate anything.

In Shelby County v. Holder, the Court announced that Congress hadn’t done enough investigation to justify the reauthorization of the Voting Rights Act. That act offended the Dignity Of The States, another brand new invention. That same logic can be used with the major questions doctrine to argue that Congress hasn’t done enough to justify authorizing agencies to regulate anything SCOTUS doesn’t like. And of course SCOTUS gets to decide whether a question is a major question.

Congress and executive agencies aren’t allowed to make rules to protect us from deadly pandemics. Only SCOTUS is allowed to do that. They killed mask mandates in the workplace, freed up unscrupulous religious leaders to infect their followers, and just recently interfered with international diplomacy by enjoining the Biden Administration from junking a Trump rule barring entry of asylum seekers because Covid is so terrifying. So much for consistency.

Neither Congress nor the President have resisted the hijacking of their power. They didn’t impose any limits on SCOTUS, by restricting its jurisdiction, cutting its funding, publicly attacking decisions as overtly political or poorly reasoned, holding hearings, or even taking the mild step of imposing ethical requirements. They just sit and watch the Holy Six enjoying their self-declared role of Philosopher Kings, the Platonic Ideal. Democracy? That’s not in the Constitution.

The worst part is that they expect you and me to respect them. We “cross a line”, in Alito’s words, when we say they are illegitimate. They are spitting on us and telling us we are powerless to stop them.

Are we?

Justice Jackson’s Brilliant Debut

On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.

The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.

Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.

1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;

2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and

3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:

…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.

Is that your central argument?

MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.

You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.

He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.

JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.

And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.

I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was drafted to give a foundational –a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?

Lacour says:

The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:

Not if they’re allowed to sacrifice our principles to come up with their maps.

“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.

Discussion

1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.

2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?

3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.

4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.

5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.

6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.

SCOTUS Is Changing The Definition Of American Citizenship

In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.

The End Of Roe v. Wade

Is the title of this post alarmist? No, not really. That is effectively what the new Texas law has done, and has now been fulsomely endorsed by the Supreme Court, without even the courtesy of full briefing, oral argument and a merits decision. It was known this was coming when SCOTUS let this bunk take effect yesterday morning without action, it was just a question of what the backroom dynamics were in that regard. Now we know.

Here is the “decision”. As anti-climatic as it is, it is important. This is decision on a law, and the words count.

It is madness upon not just in Texas, but the entire country. These earth shattering decisions used to come only after full briefing and argument. No longer, now the shadow path is supreme.

Agree with Mark Joseph Stern in Slate when he says this:

At midnight on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, when the vast majority occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks, but does not call on state officials to enforce its restrictions.
Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

What other questions does this action, really inaction, by SCOTUS generate? A lot. Peterr asked this elsewhere:

Next up, perhaps, in the Texas legislature, now that SCOTUS has affirmed (5-4) their new approach to enforcement of state laws . . .

Texas declares that black and hispanic people shall not be allowed to vote, and delegates enforcement to any citizen, allowing them to sue for at least $10,000 if they can prove a black or hispanic person voted.

Texas declares that marriage is reserved to one man and one woman, and delegates enforcement to any citizen, allowing them to sue any same-sex couple who presents themselves in any form or fashion as “married” for at least $25,000 . . .

etc. etc. etc.

Again, not hyperbole. For now though, it is crystal clear that Roe is gone. There will be different laws in different states, at best. That is it.

What happens when states like Texas/their citizen plaintiffs start trying to enforce their craven law as to conduct occurring in other states? I don’t know, but that is the next horizon.

At any rate, this is going to be a problem for a very long time. If SCOTUS will do this though, given their clear previous precedent contrary to today’s order, means you can kiss voting rights cases goodbye.

It is a not so brave, nor honorable, new Supreme Court world.

Finding The Public In A Complex Society

Posts In This Series

In the last two posts we looked at Dewey’s idealized form of democracy. In Chapter 4 of The Public And Its Problems, Dewey desribes some of the obstacles citizens face in identifying themselves as a public, as a group capable of organizing to solve its problems. The obstacles he describes never went away.

He begins by pointing out that our form of democracy originated in small communities, based on town meetings and elections of neighbors to carry out the solutions reached through those meetings. Waves of industrialization and immigration created giant urban communities. Absorbing and socializing those groups into urban American life went quite well considering the enormous difficulties. But:

In spite of attained integration, or rather perhaps because of its nature, the Public seems to be lost; it is certainly bewildered. The government, officials and their activities are plainly with us. … But where is the public which these officials are supposed to represent? How much more is it than geographical names and official titles? P. 149-50; fn omitted.

The effort to adapt the politics of the small town to densely packed urban areas worked well enough to prevent the nation from falling into civil strife, but was not robust enough to deal with urban problems let alone national issues. Dewey describes the drop in the percentage of the population who voted and the cynicism that many show to the process.

Those still more inclined to generalization assert that the whole apparatus of political activities is a kind of protective coloration to conceal the fact that big business rules the governmental roost in any case. Business is the order of the day, and the attempt to stop or deflect its course is as futile as Mrs. Partington essaying to sweep back the tides with a broom. P. 151; fn omitted]

This accords with what he wrote in Chapter 3. We are not so much a nation of self-motivated individuals as a interchangeable group of “standardized units”, a phrase with echoes of neoliberal Homo Economics. These units are driven into corporations or other huge organizations for economic purposes not voluntarily but by the need to make a living.

[Corporations] are so massive and extensive that they determine the most significant constituents of the public and the residence of power. Inevitably they reach out to grasp the agencies of government; they are controlling factors in legislation and administration. Not chiefly because of deliberate and planned self-interest, large as may be its rôle, but because they are the most potent and best organized of social forces. P. 142.

This obstacle is exacerbated by the existence of political machines and other groups who insert themselves between individuals and the state; and use this position for their own ends.

Dewey identifies other things standing in the way of a public trying to recognize itself.

1. Political parties don’t do policy, and policy is never the issue in elections. He points to the fact that child labor laws are supported by a large public majority, but neither party makes them an election issue, or pushes the necessary Constitutional Amendment. This reminds us that SCOTUS struck down Child Labor Laws in a typical anti-democratic action by a 5-4 majority of conservatives.

2. Elected officials are rarely held to account by the electorate for specific votes or positions. Instead, the primary determinant seems to be a general consensus about the overall state of things.

3. Public relations experts manipulate the attention and energy of the public to focus on non-political matters. This leaves the experts and their sponsors to manage political activity for their own ends. Even non-corrupt leaders use theories developed for altogether different purposes and developed in different circumstances.

4. Mass societies lead to the disintegration of small communities where people develop the habit of participation in politics.

5. Mass societies create complex problems beyond the ability of a non-specialist to grasp. Of course, the consequences of the decisions made by specialists are clear. But see point 2.

6. It is difficult to apply even a simple political principle in a large society. Dewey gives two examples. Southerners claim to favor small government. They also claim to want to prevent drinking alcohol. But Prohibition requires a larger government. Farmers want small government, but also want fair railroad freight rates. That requires a large government bureaucracy.

7. Apathy sets in when it becomes difficult to identify issues, as is the case in a complex society, especially when traditional political slogans lose their meaning. People vote against one or the other party based on adherence to worn-out ideas when they bother to vote.

8.

The increase in the number, variety and cheapness of amusements represents a powerful diversion from political concern. The members of an inchoate public have too many ways of enjoyment, as well as of work, to give much thought to organization into an effective public. Man is a consuming and sportive animal as well as a political one. P. 167.

9. Earlier American communities were stable. But technological forces create instability, mobility and constant change. “Steam and electricity have done more to alter the conditions under which men associate together than all the agencies which affected human relationships before our time.” P. 169. This makes if difficult to formulate a sense of solidarity that is necessary to create a public.

These factors have confused citizens and made it difficult for them to recognize themselves as a public with problems that require organization to create a solution. Dewey offers his thoughts on solutions in chapter 5.

Discussion

The problems Dewey identifies are worse today that they were 100 years ago. Occasionally catastrophes have forced us to demolish those obstacles, and face up to life and death situations that can only be solved as a group. After WWII, there was a brief time, the time of my childhood, when the problems had not completely overwhelmed a sense of national community, when we slowly began to see real changes. It was short-lived, partly destroyed by endemic racism and an immoral war, and partly by a group of right-wing rich people and their economic theorist enablers. It was finished off by yet another economic nightmare. Catastrophic stagflation in the mid- to late 70s was met with neoliberal solutions, and the same for the following economic crashes, through the Great Crash and the Great Recession. We were distracted, unable to protect ourselves while our nation slowly fell apart.

Then came the pandemic. While we were locked down we saw the horrifying killing of George Floyd, which came on the heels of so many other police killings of unarmed Black people. We saw massive protests often met with state and right-wing violence. We saw the horror of the second and third waves of the pandemic, and the disgusting behavior of the former guy and the antics of his incompetent administration. We watched his absurd lawyers hack at our election. Then we saw the Capitol Insurrection. There weren’t any distractions, no manipulations that could hide it. [1] We were able to see ourselves as a public.

I hope this is a permanent change.
========
[1] I first saw this observation in a tweet from Jemele Hill (@jemelehill). Added on edit.

Three Things: So Many Questions, September Edition

It’s been a little busy in my neck of the woods, trying to tackle a long accumulation of honey-dos. But questions piled up, needing answers, so much so that I had to take time out to put bits and pixels to digital paper. Let’s begin, shall we?

~ 3 ~
PUERTO RICO POST-MARIA

Where the hell is the USNS Comfort, dispatched in 2010 to help after Haiti’s earthquake, and why isn’t it docked in San Juan, Puerto Rico, right the fuck now?

Why did we send 24,000 military personnel to help Japan after the 2011 earthquake but can’t muster them for a U.S. territory with a former navy facility and an active facility at Fort Garrison in San Juan?

Is Trump deliberately ignoring Hillary Clinton’s plea to send the USNS Comfort to PR because — well, it’s Hillary? (Yeah. Check that link. Even Fox News noted Hillary’s request.)

Has Trump deliberately ignored Puerto Rico’s urgent plight out of personal pique over the bankruptcy and losses from a Trump-branded, Trump-managed golf course located in Rio Grande, PR? He was trying to prop it up on Twitter back in 2013.

Are Trump’s tweets complaining about Puerto Rico’s debt yet more projection, since the failed golf course was built with government-issued bonds?

Why did the Senate approve as FEMA director — who only left to tour the island FIVE GODDAMNED DAYS AFTER MARIA MADE LANDFALL — the man who was the Hurricane Program Manager for FEMA under the Bush administration during Hurricane Katrina?

This, from The New York Times:

The head of the Federal Emergency Management Agency, Brock Long, has received widespread praise for his handling of the federal response to Hurricane Harvey, the first major natural disaster faced by the Trump administration.

Somebody get me a concrete citation of a real accomplishment attached to some of this “widespread praise” for anything besides being “a calming presence in press briefings.” Has the bar slipped this low that calmly stringing together cogent sentences is worthy of accolades? Can the NYT stop fluffing Trump and his band of co-conspirators?

Because right now American citizens are suffering and likely dying as a result of this administration’s gross ineptitude and negligence, if not outright malignance.

Now Trump says he’s going to Puerto Rico next Tuesday. That’s TWO WEEKS after the storm. Can’t disrupt his golf game over last or the next weekend, don’t you know. What I particularly despise about Trump’s response to this crisis is that he makes this guy’s fly-by two days after Katrina look so much better.

Call your members of Congress and demand action. Yeah, that’s not a question. Suck it up; you’ve got electricity, communications, and access to clean water if you’re reading this. Millions of your fellow Americans in Puerto Rico don’t. Let’s fix this.

~ 2 ~
GRAHAM-CASSIDY-HELLER-JOHNSON NOT-A-HEALTH-CARE BILL

Have you called your senator and asked them to vote NO on the debacle Sen. Bill Cassidy can’t explain and over which Sen. Lindsey Graham is ruining any cred as a rational human being, while disabled health care activists recover from being hauled away by capitol police yesterday before the Senate Finance Committee’s hearing on the bill?

Have you documented and shared publicly your senators’ position on Graham-Cassidy, especially if they are up for re-election in 2018?

The number is (202) 224-3121 if you don’t have it memorized already.

Need a script to make it easier? Here you go.

As wretchedly bad as this obscene joke of a bill is, I can’t help wonder if GOP members of Congress and their staff are gaming this. Have they been working on something even worse than previous attempts at ACA repeal just to game the stock market and make a few bucks on the backs of worried citizens?

[graphic: Health Insurance stock chart, via Google Finance]

For grins you should look at Aetna’s chart for last Friday and note the jump it took when Sen. McCain expressed his reluctance to support Graham-Cassidy. Price jumped about the same time capitol police arrived to arrest protesters. Easy money, that, conveniently ahead of the market’s close.

~ 1 ~
IRAN ~AND~ PUERTO RICO

What question do these two disparate places prompt?

First, Trump tweeted about an Iranian missile launch as if it had ~just~ happened, within 24 hours of a reconstituted travel in which Iran is listed. But the missile launch ~didn’t~ just happen; it took place more than six months ago but was mentioned only this week in Iranian news.

Second, Trump took his fucking sweet time ensuring FEMA went to Puerto Rico; Hurricane Maria made landfall on September 20th, visible to anyone who watched weather networks, NOAA, and NASA reporting.

Is Trump ignoring any and all U.S. intelligence and government experts on matters foreign and domestic, relying instead on some other criteria for responding to events, including cable TV? Should we believe for a second he’s simply and accidentally flooding his source of information?

In the case of Iran’s missile program, it looks more like he deliberately used stale news to defend a new travel ban while making propagandistic false statements to the public. The Supreme Court canceled hearing the travel ban after the travel ban was rejiggered — does this suggest his manipulation of perception worked, not only on the public but on the Supreme Court?

~ 0 ~
One more time: call your Senators to ask NO on Graham-Cassidy and get their position on the record. Call your members of Congress to ask for urgent response and funding for aid to Puerto Rico. The number is (202) 224-3121. Put it on speed dial.

Viajar bien, mis amigos y amigas.

Monday: Fierce Dog

Hunger and fear are the only realities in dog life: an empty stomach makes a fierce dog.

— excerpt, personal journal of Capt. Robert Falcon Scott

This short film by Aaron Dunleavy was inspired by his childhood in Blackburn, Lancashire UK. The script was improvised and cast using locals.

All districts in Lancashire voted Leave during last week’s Brexit referendum, with 65% of Blackburn voters supporting Leave.

Worth noting an article in Lancashire Telegraph about an Aldi’s store under construction. Aldi’s is a German-owned grocery store chain; have to wonder if construction will be completed.

Brexit botch bits

  • @shockproofbeats on Brexit’s impact on Northern Ireland (Storify) — It’s messy now and promises to be even uglier.
  • Downside for China (and other foreign investors): Real estate purchases may be put on hold (SCMP) — Some deals in the works may be halted until the pound is more stable. On the other hand, Britain may step in and put the brakes on sales; too easy for overseas entities with big money to buy up property while pound is depressed.
  • Upside for China (and other banking centers): Business could pick up in Hong Kong (SCMP) — London is the second largest trading center of yuan next to Hong Kong; some of the business could shift back to Hong Kong, especially if HSBC bank choose to relocate its headquarters to HK from London.
  • No change in position on Brexit referendum since last Friday according to PM David Cameron (Independent-UK) — Though Cameron is now going to leave in September. He continued to push triggering of the Article 50 to his successor while taking pot shots at Labor Party over its purge this weekend. Not certain most Americans will notice just how Cameron has managed to shift the blame to both MPs and the people for a referendum he proposed, or how he has turned execution of Article 50 into a poisoned chalice. Lord Chancellor Secretary of State for Justice Michael Gove, Leave campaign proponent, was present at today’s session in Parliament but said nothing before disappearing. Boris Johnson, MP for Uxbridge and South Ruislip and Leave campaign proponent, was noticably absent. Wankers all three.

SCOTUS Week
Waiting around watching the court for good or ill until this morning is kind of like waiting for Shark Week — hey, it IS Shark Week! What a coincidence!

Miscellaneous trouble

Promises to be a busy week ahead. Stay tuned!

El Nino Scalia

Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.

The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.

First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.

But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.

Why? Okay, this is a quick take:

Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.

One law professor, Tim MacDonnell, put it this way:

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.

I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.

Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:

The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.

“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.

In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.

Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.

So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.

And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.

Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.

But, can they do that, will there be no Obama SCOTUS nominee confirmed, no matter what? I would not be shocked if that were not so. By the same token, the longest a confirmation battle has ever taken to confirm a SCOTUS Justice is 125 days (Obama has 361 left).

Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.

Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.

A Big Day at SCOTUS on Obamacare and Fair Housing

JusticeA little more than two hours ago, a fairly monumental day at the Supreme Court got underway. Two big boxes of opinion were brought out signaling at least two, and perhaps as many as four, new decisions were going to be announced. It was only two, but they are huge and critically important decisions King v. Burwell, better known as the “Obamacare case”, and Texas Dept of Housing v. Inclusive Communities Project, better known as the Fair Housing case.

Both King and Texas Housing are big, and both have been the cause of serious apoplexy and fear among liberals and progressives. And both were decided very much in the favor of the liberal position, so it was a very good day on both issues.

First off is King v. Burwell, and the full opinion is here. It is a 6-3 opinion written by Chief Justice Roberts. Many people seem shocked that the majority was 6-3. I am not. While I thought the challenger King plaintiffs had a cognizable legal argument, it always struck me as a losing one, and one the Chief Justice was unlikely to sign off on after his sleight of hand to keep the ACA alive in the earlier NFIB case.

Similarly, though Anthony Kennedy was a bigger concern because of his states rights history, he has a long history on protecting citizens on social justice issues (which is why we are about to get marriage equality, maybe as soon as tomorrow). And, once Obamacare was upheld in NFIB, and all the millions of additional Americans had been given health insurance access (which, let us keep in mind, is still different than actual healthcare), it really became a social justice issue, and thus one Kennedy would be very troubled to strip away.

As to the general overview, Rick Hasen at Election Law Blog has a great summary:

Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of deference to the IRS’s interpretation of ambiguity under the statute (under the so-called “Chevron” doctrine) as well as principles of federalism, which were used to argue for results for and against the Administration in the case. There were also questions about the standing of various plaintiffs. There were arguments about the intent of the drafters, and what MIT economist Gruber said, or may have said, or may have misspoken about the way the law was supposed to work. In the end, the Court rejected application of Chevron deference to the IRS and federalism made no appearance. Nor did standing or Gubert get discussed. Instead the Court’s analysis went basically like this:

The question whether tax subsidies applied to poor people in states that did not set up their own health care exchange is important, so important that it is hard to believe that Congress would have delegated that question to an agency (and particularly to the IRS, whose job it is to collect revenue not design health care policy). So there is no “Chevron” deference on the question. The court has to use its tools of statutory interpretation to decide the case. The law, read as a whole, is ambiguous. It is certainly possible to read the challenged language as giving subsidies only to people in state exchanges and not in the federal exchange. But there are other parts of the law, read in context, that only make sense if subsidies apply to those in state or federal exchanges. In such an ambiguous case, it is the purpose of the law that should govern. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Go read all of Rick’s post, it is also notable for its explanation as to why King is likely the last word on the ACA as a viable entity and Obamacare is here to stay. I concur.

I would like to point out one aspect of the King decision I find particularly rewarding – the lack of attention to all the extrinsic noise that has been generated over the many months the King case was pending by all the crazed pundits on both sides of the issue at heart. Absent was all the relentless sturm and drang about standing, loss of standing, federalism, what Hans, err Jon, Gruber said or didn’t say, post hoc interviews with Congress members, their staff and lobbyists and what it meant, and all other sundry sorts of faux legislative history by people that apparently would not recognize real “legislative history” if it hit them in the butt. That is very satisfying thing for somebody that thinks appellate decisions should, at their core, be based on the statutes, precedence and the record on appeal.

For this I am thankful for the clarity and cleanliness of Roberts opinion. As a side note, the majority’s scuppering of the Chevron basis has created a side issue among us in the legal chattering class as to whether it signals a weakening of the “Chevron Doctrine”. Rick seems to think there is a fundamental weakening here. I am not so sure of that at all, even though I have had sincere problems with Chevron pretty much as long as I have been practicing law, as it gives far too much deference to often out of control administrative agencies, and the appellate burden is very onerous to overcome bad administrative rulings.

We shall see how the components of today’s decision in King play out in the future, but it was a very good day for the law, and the ACA, today.

The second, and also huge, case handed down today is the Texas Fair Housing decision, and the full opinion is here. Although it will be overshadowed today by the more famous (infamous?) King Obamacare decision, the Texas case is absolutely critical to the ability to fight and control discrimination.

As the excellent Lawrence Hurley reports for Reuters:

On a 5-4 vote in a major civil rights case, the court decided that the law allows for discrimination claims based on seemingly neutral practices that may have a discriminatory effect. Justice Anthony Kennedy, a conservative who often casts the deciding vote in close cases, joined the court’s four liberals in the majority.

The ruling also was a triumph for President Barack Obama and his administration, which had backed Inclusive Communities Project Inc, a nonprofit group in Texas that claimed the state violated the law by disproportionately awarding low-income housing tax credits to developers who own properties in poor, minority-dominated neighborhoods.
…..
Although a broad win for civil rights advocates on the legal theory, Kennedy, writing for the court, indicated in the ruling that the Texas plaintiffs could ultimately lose when the case returns to lower courts.

The court was considering whether the 1968 law allows for so-called disparate impact claims in which plaintiffs only need to show the discriminatory effect of a particular practice and not evidence of discriminatory intent. There was no dispute over the law’s prohibition on openly discriminatory acts in the sale and rental of housing.

Kennedy wrote that Congress indicated in 1988 when it amended the law that it intended disparate impact claims to be available.

“It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification,” Kennedy added.

Kennedy also made clear there are limits to the types of claims that can be brought, saying that “statistical disparity” alone is not enough. Plaintiffs must “point to a defendant’s policy or policies causing that disparity,” Kennedy added.

As Adam Serwer said on Twitter (here and here), “banks and insurance companies have been trying to tee up this case for years because they thought the Roberts court would rule in their favor” and “without this law, it’s unlikely any of the banks would have paid any price for trapping minorities in bad loans regardless of credit”. That is right. But it goes further than that, the “disparate impact” claim is one of the most important tools available to fight discrimination that may not be apparent on the face of a cagily crafted provision or business model policy, but which nevertheless is effected by it. Discriminatory animus has gotten very sophisticated, and this tool under the Fair Housing Act of 1968 is necessary to have to fight it.

Texas Fair Housing was a 5-4 decision authored, somewhat surprisingly, by Anthony Kennedy where he joined the four justices of the “liberal bloc”. It is yet another indication of where Tony Kennedy is on “social justice” issues, again a trend that augurs well for marriage equality. We shall know soon enough!