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John Trumbull’s ‘Declaration of Independence.’ 1819

So, first of all, happy Independence day. My conservative friends may not believe me, but part of the reason I spend so much time criticizing politics in this country is because I think it really is a very great country. One of my favorite JFK quotes is “This is a great country, but I think it could be a greater country.”

[This is the same reason that when I write about football, I critique good teams–it’s way more interesting than criticizing lousy ones.]

With that in mind, let’s talk about the Supreme Court.

First off, let me talk about Chief Justice Roberts.  I can’t figure him out.  Liberals I know say he is just a Conservative who rules however the Conservatives want something to go.  But that’s obviously not true; or else he would have struck down the Affordable Care Act. So he isn’t just some guy who rules based on the party line.  He has some kind of judicial philosophy–the question is, what is it?

Second item: the latest Supreme Court case in the news is the Hobby Lobby case, wherein Chief Justice Roberts ruled, along with the Majority, that employers don’t have to pay for insurance plans covering contraceptives.  I’ve heard a lot of criticism of this ruling, saying it is a disaster for women and a re-ignition of the “War on Women” from 2012.

My opinion? Yes, but it’s even worse than that.

The trouble is, when religion gets involved, things always get murky.  I don’t want to insult anybody’s beliefs, but the fact of the matter is that religion is based on faith, not legal precedent or factual evidence.  Which is fine, but it makes it tough to deal with in a legal case, because it is about unquantifiable, supernatural things.  As the greatest legal mind in the English-speaking world, the Lord Chancellor from Gilbert and Sullivan’s Iolanthe, said:

Ah! but, my good sir, you mustn’t tell us what she [Chorused nature] told you — it’s not evidence. Now an affidavit from a thunderstorm, or a few words on oath from a heavy shower, would meet with all the attention they deserve.

There are a lot of different religions. And all of them give different versions of what God is supposed to have said what to do or not do.

My question is: how far does this really go? What if I’m a business owner and my religion forbids all health insurance?  Can I not provide coverage?  For that matter, if I’m a business owner, and my religion forbids following government safety mandates, can I get out of that, too?

Obviously, this Court ruling doesn’t really mean that. But the question is, why doesn’t it mean that? Because that is the implied logical precedent, it seems to me.

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Everyone is talking about the Supreme Court’s ruling on Obamacare.  But I don’t want to talk about that now.  I want to address another controversial 5-4 ruling, one that many said was the last one before this to garner such attention.  James Fallows alluded to it in his hyperbolic-yet-interesting-but-ultimately-irrelevant pre-ruling post: the curious case of Bush v. Gore.

Since I didn’t start blogging until nine years after that decision, I’ve never really talked about it on here.  It’s quite interesting.  What does our go-to source, Wikipedia, tell us? 

The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment”. Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.

So, Florida screwed up the recount, huh?  What the heck were they doing, counting in Greek numerals?  How can you screw up a simple vote count unless corruption is involved?  Well, whatever.  Then:

The Court stated that the per curiam opinion’s applicability was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

I have read this over and over.  I am no legal expert, but I can read English.  I am going to write, in a separate paragraph, in bold, my reading of this.  If you are a legal expert, please explain to me if I am making mistake in the following paragraph, for I can see no other interpretation.

The Court had to make sure their ruling applied only in that case, because otherwise it could conceivably call into question many other elections in the history of the United States, and future ones as well.  Certainly, every recount was now suspect.  According to their findings, known methods of vote counting may have been unconstitutional.  I mean, if they couldn’t recount votes in a constitutional manner, how could anyone be sure they had counted them right in the first place?

I am not saying the Court was wrong.  I am only saying that if they were right, there existed a possibility that the entire system was fundamentally flawed.  At least that’s how I read it.  Am I wrong?

However, this part was a 7-2 ruling.  The 5-4 ruling was the controversial one, the one that said they couldn’t try a constitutional recount.

Conservatives have been quick to point out that the Court did not decide the election for Bush because, had the recount continued in those counties, Bush would have won anyway.  they cite this New York Times story from 2001:

A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court’s order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.

The story went on to note:

But[…] Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots.

Please observe that the story is from 2001.  Not 2000.  That means that people only found out what would have happened almost a year later.  The Court making their decision knowing that if they stopped the recount Bush would win, whereas if the recount continued, it was unknown whether he or Gore would win.  Now, we learned after the fact that Bush would have won had they allowed the count in those counties to continue, thus rendering it a moot point, but they did not know that at the time.  We must evaluate their decisions based on the knowledge they possessed when they made the ruling:

  • Stop recount: Bush chance of victory = 100%
  • Continue recount: Bush chance of victory = x, where x < 100%

I think it’s clear what the dominant strategies are in this case for any political partisan, no?

But the Supreme Court is not political!  They are just a machine that ruthlessly interprets the law, not biased in any way, shape or form, right?  They wouldn’t decide an election based on anything other than legal precedent.  That wouldn’t be logical.  What would Vulcan High Command say?

Let’s hear from Justice Scalia on the matter:

There you have it.  They had to do it!  Everyone was laughing at us!

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The Supreme Court Justices. Image via Wikipedia

There are two major theories going around about the Supreme Court decision on Obamacare:

The first theory would mean that all the liberal celebration needs to stop.  The second would mean we have a Chief Justice who made a decision based on what people would think of him.  Neither option is very good, really.  But the most interesting interpretation I’ve heard is P.M. Prescott’s, which essentially states that what Roberts ruled was completely consistent with his pattern up to now.

I plan to do some more in-depth posts on the Supreme Court soon–the stuff I’ve been reading about the Court this past week is quite interesting.

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People are lauding Chief Justice Roberts for his decision.  It seems like he doesn’t like the law, but decided against overturning it because he felt there was not much of an argument for doing so.  Which is what Judges are supposed to do.  Don’t take my word for it, though.  Take this guy’s:

Anyway, it is rather funny that what saved the law was interpreting it as a “tax”.  The Democrats tried to desperately not to call it that, because people hate taxes, but in the end that is what it needed to be to stand.

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James Fallows at The Atlantic wrote a post on his blog called “5 Signs the United States is Undergoing a Coup“.  Then he thought better of it, and changed it to “5 Signs of a Radical Change in U.S. Politics”.  Here are the signs:

  • First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
  • Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
  • Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
  • Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
  • And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.

Well, the “coup” headline was quite wrong.  This isn’t a “coup”, because it doesn’t involve the military, it is non-violent,  and it is worked just by using the existing system.  The “radical change” headline is true, but generic and silly.  There are lots of radical changes in U.S. politics; what makes this one important?

For, make no mistake, it is important.  But it isn’t a coup.  It is nothing more or less than one political party working the system to its own advantage.  Or, as Charlie Sheen would say, “winning!”  The Republicans aren’t breaking the rules, they’re just bending them as much as they can to favor their side.  The filibuster is a perfect example: there’s nothing that says you can’t filibuster everything; you just aren’t supposed to. Likewise, there’s nothing that says the Supreme Court can’t make decisions purely in the interests of its preferred party–indeed, you could never prove they were doing that, as it would require telepathy–they just aren’t supposed to.  It’s hard to believe that no one noticed these massive loopholes sooner.

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I’m not a lawyer. I don’t anything about Constitutional law or any of the precedents involved in the present Supreme Court case on Obama’s health care plan.

But this Mother Jones article by Adam Serwer about it seems pretty vapid to me. Why, Serwer criticizes Solicitor General Verrilli, the guy defending the law to the court, for coughing. So what? Did his arguments make sense? He complains that Verrilli gave “a rambling, apprehensive legal defense” of the law, but doesn’t offer specifics as to what that means.

Well, read the transcript and make up your own minds.

One other thing: at one point, Chief Justice Roberts said:

You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren’t purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I — I don’t understand that distinction.

Verrilli answers:

The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care and broccoli is (interruption) And — and broccoli is not the means of payment for anything else.

Well, I suppose we could have a barter system, and maybe broccoli would be then. But we don’t. We have a fiat currency system. Currency, in fact, is a means of payment for things. And who is in charge of the currency? Yes, indeed; the government is. The government regulates the currency market. Does it compel everyone to have currency? No, not exactly, but see how far you get without it.

Now, even more specifically, does Congress have the power to regulate currency? Oddly enough, it does under the Constitution, but it voluntarily ceded that power to the Federal Reserve. Even more strangely, many of the libertarians I know who oppose the health care law because of the power it gives Congress also support abolishing the Federal Reserve and giving much greater power back to Congress.

As I see it, according to Libertarian logic, one or the other is unconstitutional, but not both. Of course, it could be neither. In fact, I rather think it is neither, and that both the Fed and Obamacare are quite alright. But it’s only right to offer you fellows a chance. I keep hearing you say you want to end the Fed and strike down Obamacare and it makes me curious.

But like I said, I’m no lawyer. I’m Joe Moron, the blogger. So, to you lawyers out there: explain the flaws in my thinking.