Commentary Magazine


Topic: Supreme Court

Elizabeth Warren and the Right

While many on the left seem to be pining for a populist 2016 campaign from the likes of Elizabeth Warren, the truth is that a Warren campaign probably has at least as many backers among conservatives. That’s not only because it would mean Hillary Clinton wouldn’t skate to her party’s nomination virtually unopposed (or opposed by Martin O’Malley, which is the same thing). It’s also because Warren was the last hope for the emergence of a serious intellectual liberalism. Yesterday’s Hobby Lobby ruling, however, made it clear such a liberalism is nowhere to be found.

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While many on the left seem to be pining for a populist 2016 campaign from the likes of Elizabeth Warren, the truth is that a Warren campaign probably has at least as many backers among conservatives. That’s not only because it would mean Hillary Clinton wouldn’t skate to her party’s nomination virtually unopposed (or opposed by Martin O’Malley, which is the same thing). It’s also because Warren was the last hope for the emergence of a serious intellectual liberalism. Yesterday’s Hobby Lobby ruling, however, made it clear such a liberalism is nowhere to be found.

On its list of liberal reactions on Twitter to the announcement of the Supreme Court’s decision, Mediaite includes this gem from Warren:

Can’t believe we live in a world where we’d even consider letting big corps deny women access to basic care based on vague moral objections.

Now, those who followed the case know that none of that is true. But just as disconcerting as the complete disregard for the facts is Warren’s dismissive attitude toward Christian belief. Warren sees opposition to abortifacients as “vague moral objections.” There was a time liberals argued that Warren was needed in the Senate to speak up for the people, to advocate for the Americans who weren’t getting a fair shake from their government. It turns out putting Elizabeth Warren in the Senate meant Americans would need protection for their basic freedoms against the government more than ever.

Warren’s delegitimization of religious belief and practice to empower government at the expense of the individual is coupled with her denial of the basic science behind Hobby Lobby’s objections to being forced to provide abortifacients. But it shouldn’t come as a surprise. Last month, National Review’s Patrick Brennan observed an event at which Warren joined French economist Thomas Piketty to talk about inequality.

Brennan notes that the two discussed some of Warren’s plans for college loan and tax reform, and that Warren’s plans are, from a policy standpoint, distinctly unimpressive. They are liberal crowd-pleasers, not informed and judicious attempts to solve problems. Brennan writes:

Warren’s agenda, left-leaning as it is, isn’t about rigorous progressive examination of what’s gone wrong with our system or how to fix it. It’s about intuitively appealing ideas and pleasing particular constituencies. Of course, this is pretty good politics — as the number of attendees who told me they want Warren to run for president seems to suggest.

But her fan base may end up disappointed.  For one, she was a reluctant Senate candidate, and a Warren for President campaign still seems a far-off dream. And Professor Piketty — perhaps sensing that she’s as good as the left wing of American politics has these days — wasn’t about to say it, but Elizabeth Warren isn’t an economic expert or a progressive policy crusader. She’s a talented populist who sells clever but unserious proposals with a sense of academic sophistication that makes Bostonians feel like they’re clapping for someone whose views are an intellectual cut above Ed Schultz’s. In the end, they’re not.

Conservatives had higher hopes for Warren too, because they believed for a time that she was proof it was still possible for a progressive politician to engage seriously in a policy debate. That ship has sailed.

Of course, it’s all relative. However unserious Warren’s response to Hobby Lobby, it had nothing on Hillary Clinton’s. The former secretary of state was at the Aspen Ideas Festival, where she was asked about the Supreme Court decision. According to the Atlantic, which sponsors the festival, Clinton actually said the following:

“I disagree with the reasoning as well as the conclusion,” Clinton said, almost before Isaacson had his question out. “I find it deeply disturbing.” …

“Part of the reason I was so adamant about including women and girls [in State Department efforts] is that they’re often the canaries in the mine,” Clinton explained. “It is a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism. Women’s bodies are used as the defining and unifying issue to bring together people—men—to get them to behave in ways that are disadvantageous to women but prop up rulers.”

Now, she said, something similar was happening in the United States, where religion was worming its way into government. “Many more companies will claim religious beliefs. Some will be some sincere, others maybe not. We’re going to see this one insurable service cut out for many women,” she said. “This is a really bad, slippery slope.”

This person is, by all accounts, running for president of the United States. Which makes it easier to understand conservatives pining for a Warren candidacy, I suppose. But conservatives looking for a Democratic candidate willing to have a serious debate on the issues will be waiting quite a while, it appears.

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The Opposition to Religious Liberty Is Partisan–And That’s What Is Dangerous

Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

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Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

Becerra was asked by host Chris Wallace whether business owners must violate their beliefs if the government mandates it. Here is the ensuing exchange (sic throughout; from the transcript):

BECERRA: The government will not violate anyone’s religious beliefs. But no one has the right to discriminate against a woman because of her own beliefs. I believe that the Supreme Court will find that no business –

WALLACE: She doesn’t have to work with the company.

BECERRA: – no business should be allowed to discrimination against women. And we’ve gone beyond that. We should also try to pay them equally for the work they do.

WALLACE: We’re not talking about that. We’re talking about the birth control mandate.

BECERRA: Let’s protect the woman’s rights to be able to earn the same pay and live their lives –

WALLACE: What about the owner’s right to his religious freedom, his religious beliefs?

BECERRA: The owner has a right to his or her religious beliefs, but that doesn’t mean you get to discriminate against women if a woman have different beliefs than what the owner has and the woman wants to exercise her rights under the Constitution.

Notice Becerra–twice–compares “religious beliefs” to any “beliefs.” The owner may hold religious beliefs that would be violated by the contraception mandate. But the employee believes the owner should provide her with any form of birth control she wants. Now we’re at an impasse, according to Becerra’s remarkably preposterous gibberish. According to Becerra’s mindset–and remember, he is offering the Democratic Party take on this case–religious beliefs are no different from political opinions. That is, for the purposes of constitutional law and practice, they don’t exist separate from any random employee demand.

Of course, the Supreme Court did not rule this way, because Becerra’s reasoning, such as it is, discounts the very first passage of the very First Amendment to the Constitution. But the violence Becerra wants to inflict on the Constitution should not be ignored even after the high court rejected it, because it reflects the reason we have this case to begin with: when forced to choose between religious freedom and government coercion, the left will choose government coercion. Combine that with the extent to which the left seeks to expand government power, and you have a troubling erosion of civil society and the private sphere.

That’s evident from this piece by Yishai Schwartz in the New Republic. Schwartz argues that the left is wrong to dismiss the religious freedom issues at play here. He knocks the deeply silly talking point so popular on the left that “corporations aren’t people” and “corporations don’t have beliefs.” He writes: “I certainly hope The New Republic has free-speech rights and the local church has free-exercise rights, even though they are corporations.”

Having acknowledged the legitimacy of the religious protections Hobby Lobby sought, Schwartz also praises the religious freedom “consensus” that has prevailed … until now. What happened? Here Schwartz makes a novel, though thoroughly noxious, attempt at misdirection: “the GOP’s scorched-earth attack of the Affordable Care Act has already claimed its primary victim: religious freedom.”

Schwartz then tries, in vain, to defend his assertion that the party fighting on behalf of religious freedom is really its enemy, and the party assaulting the religious freedom consensus is innocent:

But as conservative media seized on religious freedom suits like Hobby Lobby to bludgeon Obama, the left has increasingly abandoned RFRA. Where liberals once championed a law meant to protect small religious groups from callous majorities, they now see an endless slippery slope of religious conservatives obeying whatever laws they happen to find acceptable.  In religious freedom, the left now sees only a shield that will allow religious conservatives to discriminate against gays and harm women’s reproductive health. In the partisan rancor that has consumed today’s Washington, the consensus in favor of religious accommodations has been shattered.

ObamaCare’s HHS regulations infringed on the religious freedom of Christians. After that infringement, Americans fought for their previously recognized religious rights. According to Schwartz, conservatives should have silently accepted this abrogation of constitutional protections because if they made a scene, liberals would finally concede that they don’t really believe in those protections, and in a fit of rage revolt against the very idea of religious freedom–simply because conservatives are loudly defending it.

I don’t know the Democrats that Schwartz is talking about, but they seem consumed by anger and absolutism. And they–and their apologists like Schwartz–are living proof of just how important it is to fight for and codify these rights. Any political movement that hates conservatives enough to abandon the Constitution because conservatives support it, as does the version of American liberalism Schwartz profiles, is a perpetual argument in favor of conservatives’ effort to preserve religious liberty.

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Proroguing the Congress

The Supreme Court wimped out on the recess appointment power today.

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The Supreme Court wimped out on the recess appointment power today.

It ruled, unanimously, that President Obama had overstepped his powers when he made three recess appointments to the National Labor Relations Board while the Senate was holding pro-forma sessions. In other words, the Senate, not the president, gets to decide when it is in session.

I have not yet read the opinion, which is a long one, but five justices (the four liberal ones and Justice Kennedy), decided to sustain the long-standing practice of presidents making appointments during intra-session recesses (for holidays, etc.) not just inter-session recesses when the Senate has recessed sine die (Latin for “without a day,” i.e. without setting a date to resume). It also ruled that vacancies don’t need to occur during the recess to be filled by the recess appointment power. Again, this is long-standing practice, but it is not what the Constitution says.

The recess appointment clause (Article II, Section 2) says that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, …” and the D.C. Court of Appeals had ruled that it meant what it said: “the recess,” not “a recess,” and vacancies must occur during the recess, not simply exist during the recess. In today’s world, the recess of the Senate is very short. They rarely adjourn before the middle of December and the next session begins, under the 20th Amendment, on January 3. Had the Supreme Court followed that reasoning, and four justices led by Justice Scalia argued forcefully that it should have, the recess appointment power would have been, for all intents and purposes, dead.

Now the long-standing but unconstitutional practice has the imprimatur of the Supreme Court. All sorts of mischief can occur as a result. If the presidency and the two houses of Congress are in the hands of one party, there’s no problem. But if the Senate is in the hands of the other party, it can prevent recess appointments only by staying in pro-forma sessions. If the Senate is in the hands of the president’s party, but the House is not, as is the case presently, then the House can prevent a recess by simply staying in session itself. Neither house can adjourn for more than three days without the agreement of the other house (Article I, Section 5).

But there’s a little noticed clause in the Constitution (Article II, Section 3) that says, “… in Case of Disagreement between them [the two houses], with Respect to the Time of Adjournment, he [the president] may adjourn them to such Time as he shall think proper; …” As far as I know, this power has never been exercised. But here’s a scenario. Obama wants to appoint someone who would have trouble being approved by the Senate, so Harry Reid moves to adjourn the Senate for a week, the House refuses to go along, and the president then adjourns them for two weeks, and appoints his man.

The king of England lost his power to prorogue Parliament in the Glorious Revolution of 1688. The Supreme Court may well have given it back to the president of the United States.

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Demonizing SCOTUS: The OCare Precedent

When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

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When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.

Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.

Critics say Democratic leaders used a similar strategy in 2010, when they piled on the court for striking down the ban on political spending by corporations in Citizens United v. Federal Election Commission.

Some court watchers speculated that Chief Justice John Roberts felt chastened by the angry reaction and sought to avoid another uproar, when he crafted the majority decision in 2012 that largely upheld ObamaCare.

“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”

And it’s not just a public disinformation campaign:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Rules Committee Chairman Charles Schumer (D-N.Y.) plan to hold hearings on the court’s ruling in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign donations. …

Senate Majority Harry Reid (D-Nev.) panned it for granting greater influence to wealthy donors, such as Charles and David Koch, the wealthy conservative donors, whom he again slammed on the Senate floor Monday.

Of course Reid would find a way to turn a complaint about the court into another tool in his quest to turn libertarian activists into former people. In one sense, this is irrational, because it has no intellectual merit and should be beneath the leaders of the world’s greatest deliberative body. But in another sense, it’s completely rational: people respond to incentives, and in his ObamaCare ruling Roberts incentivized demonizing–that’s the Hill’s word–the Supreme Court.

The story notes that chief among the left’s worries is the upcoming ruling on the ObamaCare contraception mandate. And on that note, the best line in the story has to be this: “Democrats say the present-day court lacks the experience to understand the corrupting influence of money in politics, because none of its members have held publicly elected office.” Democrats just don’t believe that law abiding, upstanding men and women who have never been offered a bribe could ever really understand ObamaCare. And you’ve got to admit, they have a point, don’t they?

We may or may not find out if the pressure campaign works. After all, a decision on the case may not be a result of the intimidation tactics, either as a concession to them or as an act of defiance against them. It may be just another ruling on the merits of the case. But that’s one of the consequences of the Democrats’ shenanigans: the idea that the court will rule on the merits of the case becomes only one of several possibilities. Roberts thought he was protecting the legitimacy of the court in his 2012 decision. It’s quite clear now that he has done precisely the opposite.

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Left Is Outraged Charles Koch Would Defend Himself

There are few things that seem to bother people more than hearing rich people complain. At times their complaints really are quite absurd: twice in the last few months a prominent billionaire has compared the plight of America’s wealthy to Nazi Germany’s victims. But that has also, unfortunately, led to a tendency on the part of the chattering classes to pretend that is what wealthy personalities always say, even when it plainly isn’t.

It’s some distant cousin of reductio ad Hitlerum. And it’s what happened when Charles Koch, chairman of Koch Industries, wrote an op-ed in today’s Wall Street Journal defending himself. The Kochs have been the subject of increasingly unhinged attacks from the left because they donate to libertarian political causes, and there are few things the left despises more than a robust defense of individual liberty in the age of Obama, whose nominating convention was treated to the creepy video proclaiming that “government is the only thing that we all belong to.”

But the very idea that a wealthy person would have the temerity to respond to public attacks on their reputation seems to take people by surprise. Hence, Koch’s Journal column includes the following paragraph:

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There are few things that seem to bother people more than hearing rich people complain. At times their complaints really are quite absurd: twice in the last few months a prominent billionaire has compared the plight of America’s wealthy to Nazi Germany’s victims. But that has also, unfortunately, led to a tendency on the part of the chattering classes to pretend that is what wealthy personalities always say, even when it plainly isn’t.

It’s some distant cousin of reductio ad Hitlerum. And it’s what happened when Charles Koch, chairman of Koch Industries, wrote an op-ed in today’s Wall Street Journal defending himself. The Kochs have been the subject of increasingly unhinged attacks from the left because they donate to libertarian political causes, and there are few things the left despises more than a robust defense of individual liberty in the age of Obama, whose nominating convention was treated to the creepy video proclaiming that “government is the only thing that we all belong to.”

But the very idea that a wealthy person would have the temerity to respond to public attacks on their reputation seems to take people by surprise. Hence, Koch’s Journal column includes the following paragraph:

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.

Which led to this bizarre response from Dave Weigel, under the snarky headline “If You Criticize Wealthy Donors, You’re Basically Hitler”:

You know who else was a despot in the 20th century? The Charles Koch standard is problematic if you think (like I think) that campaign donations should be uncapped but totally disclosed. That, according to the donors (though not McCutcheon himself), leads to character assassination. Donors have a First Amendment right to give money, but their opponents flout that right when they criticize them. Why? That’s an excellent question.

That’s not what Koch said though. Apparently you don’t have to actually compare someone to Hitler to be accused of comparing someone to Hitler. You only have use the word “despot” and the phrase “20th century” in the same sentence. More importantly, when did Koch say his First Amendment rights are being flouted when people “criticize” him? That’s easy–he didn’t!

What Koch is talking about, and what Weigel surely knows, is that Koch is speaking up because he has been the target of constant attacks from the United States Senate majority leader from the chamber floor. Harry Reid actually worked an attack on the Kochs into his reaction to yesterday’s Supreme Court ruling on campaign finance, as he does for almost anything. Remember, he blamed the debate over aid to Ukraine on the Kochs too.

Even if the effort fails, part of the purpose of this is to find ways to limit political speech, legislatively if necessary. Though Koch doesn’t say it, this actually is a violation of First Amendment protections, which is why such challenges keep ending up in front of the Supreme Court. Additionally, naming and shaming conservative and libertarian donors has another purpose: as we saw recently, those who disagreed with the president were discriminated against by government agencies, including the IRS. They also had private information leaked to political opponents.

Does Weigel not think any of this is a problem? Of course he does–he wrote about it here. He’s less troubled by it than perhaps he should be, but that’s a matter of opinion, and anyway he didn’t ignore it.

Ironically, much of this makes Koch’s point for him. Why is it necessary for writers on the left to pretend Koch said something he didn’t? Because his actual argument is pretty unobjectionable. There seems to be this idea that the wealthy ought to be piñatas–silent as the staggering masses beat the stuffing out of them. Koch didn’t claim he’s deserving of anyone’s pity. But as a businessman whose reputation is being subject to repeated dishonest attacks by prominent politicians, it would be ridiculous for him–and irresponsible to his shareholders–not to defend himself in the public sphere.

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Hobby Lobby and the Shellacking, Part II

During the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores, Inc., there was an important colloquy between Justice Elena Kagan and Hobby Lobby’s counsel, Paul Clement. The issue was whether the government has a “compelling interest” in enforcing ObamaCare against employers whose undisputed fundamental religious beliefs would be violated. Clement argued that the existence of the grandfather clause in the law shows there is no such interest:   

MR. CLEMENT: … I think the grandfather provisions of this statute really are devastating for the government’s argument that it has a compelling interest [to mandate insurance that violates Hobby Lobby’s religious beliefs]. When the government pursues compelling interest, it demands immediate compliance. … I can’t imagine Congress passing Title VII [of the Civil Rights Act of 1964] and saying, “Stop discriminating on the basis of race, unless of course you have a pre-existing policy that discriminates on the basis of race, and then you can keep it as long as you’d like.”

JUSTICE KAGAN: … you know, initially Title VII did not apply to any employers with fewer than 25 employees. And then gradually, Congress brought the number down because Congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest, you know, should be applied uniformly across all employers.

MR. CLEMENT: … [It’s consistent with a compelling interest] to say we’re going to focus on the people who actually employ the most people and therefore can engage in the most discrimination. It’s quite a different matter, and I don’t think anybody would think that Congress would pass a Title VII that said, “Hey, as long as you have a pre-existing discriminatory policy, you’re allowed to keep it.” [Transcript at pp. 30-31]

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During the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores, Inc., there was an important colloquy between Justice Elena Kagan and Hobby Lobby’s counsel, Paul Clement. The issue was whether the government has a “compelling interest” in enforcing ObamaCare against employers whose undisputed fundamental religious beliefs would be violated. Clement argued that the existence of the grandfather clause in the law shows there is no such interest:   

MR. CLEMENT: … I think the grandfather provisions of this statute really are devastating for the government’s argument that it has a compelling interest [to mandate insurance that violates Hobby Lobby’s religious beliefs]. When the government pursues compelling interest, it demands immediate compliance. … I can’t imagine Congress passing Title VII [of the Civil Rights Act of 1964] and saying, “Stop discriminating on the basis of race, unless of course you have a pre-existing policy that discriminates on the basis of race, and then you can keep it as long as you’d like.”

JUSTICE KAGAN: … you know, initially Title VII did not apply to any employers with fewer than 25 employees. And then gradually, Congress brought the number down because Congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest, you know, should be applied uniformly across all employers.

MR. CLEMENT: … [It’s consistent with a compelling interest] to say we’re going to focus on the people who actually employ the most people and therefore can engage in the most discrimination. It’s quite a different matter, and I don’t think anybody would think that Congress would pass a Title VII that said, “Hey, as long as you have a pre-existing discriminatory policy, you’re allowed to keep it.” [Transcript at pp. 30-31]

ObamaCare was enacted on the president’s oft-repeated assurances that everyone who liked their existing insurance plans could keep them–period! Everyone was grandfathered! It was only the freeloaders going to emergency rooms without insurance who–so the argument went–would be mandated into the system. And once those people were in the system, costs for everyone would go down (by $2,500!), the deficit would be cut (by a hundred billion a year!), and people would love the law (once they found out what was in it).

All this turned out to be untrue. The administration issued a grandfather regulation so narrow that virtually everyone’s existing insurance in the individual market got cancelled, which got the administration into huge political trouble. So the president issued a new exemption (via a press conference), and then unilaterally delayed the employer mandate lest the same thing happen later this year in a market 20 times as large. But the existence of the grandfather clause–as well as the exemptions issued left and right–puts the administration in legal jeopardy in the Court, because it cuts into the heart of the “compelling interest” argument. Justice rarely gets more poetic.

Political justice may take a little longer, but it may be coming. There has likely never been a law passed with more fraudulent arguments, using more fraudulent procedures, rushed through more quickly on a strictly partisan vote, while opinion polls (and the Massachusetts special election) showed the public and voters firmly opposed, both back then and now.

Now that everyone has not only learned what is in the law, but has seen how it has been implemented–with a website that didn’t work, exemptions and extensions handed out without the consent of Congress, supporters or key voting groups given immense leeway while opponents are taken all the way to the Supreme Court, and as Jonathan Tobin notes, a nonstop continuing chaos–there may be a new horror movie coming in November to a polling place near you. Call it The Shellacking, Part II.

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Religious Bias and the Washington Post

Here we go again.

The Washington Post–which years ago published a story referring to followers of the Christian right as “largely poor, uneducated, and easy to command”–yesterday published a front-page story titled, “High court with vocally devout justices set to hear religious objections to health-care law.”

Get it? The story, written by the Post’s Supreme Court reporter Robert Barnes, is meant to focus attention on–and raise our concerns about–whether justices with deep (and vocal) religious faith can rule fairly on a religious liberties case. (Two cases, including Sebelius v. Hobby Lobby Stores, Inc., will be argued before the Supreme Court today. Hobby Lobby is a chain of arts and crafts stores owned by David and Barbara Green, business owners who are evangelical Christians and seeking a religious exemption from parts of Affordable Care Act’s contraception mandate.)

We’re told, for example, that “Justice Clarence Thomas is a former seminarian who says God saved his life.” Alarming, yes, but that’s not the worst of it:

Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be “fools for Christ” and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, “is getting people not to believe in him or in God.”

Mr. Barnes later devotes two more paragraphs to the interview Scalia did with New York magazine in which he spoke about his belief that the Devil exists. Apparently some members of the elite media find this a stunning admission. (Those of us who love The Screwtape Letters do not.) 

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Here we go again.

The Washington Post–which years ago published a story referring to followers of the Christian right as “largely poor, uneducated, and easy to command”–yesterday published a front-page story titled, “High court with vocally devout justices set to hear religious objections to health-care law.”

Get it? The story, written by the Post’s Supreme Court reporter Robert Barnes, is meant to focus attention on–and raise our concerns about–whether justices with deep (and vocal) religious faith can rule fairly on a religious liberties case. (Two cases, including Sebelius v. Hobby Lobby Stores, Inc., will be argued before the Supreme Court today. Hobby Lobby is a chain of arts and crafts stores owned by David and Barbara Green, business owners who are evangelical Christians and seeking a religious exemption from parts of Affordable Care Act’s contraception mandate.)

We’re told, for example, that “Justice Clarence Thomas is a former seminarian who says God saved his life.” Alarming, yes, but that’s not the worst of it:

Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be “fools for Christ” and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, “is getting people not to believe in him or in God.”

Mr. Barnes later devotes two more paragraphs to the interview Scalia did with New York magazine in which he spoke about his belief that the Devil exists. Apparently some members of the elite media find this a stunning admission. (Those of us who love The Screwtape Letters do not.) 

On the matter of Scalia’s use of the phrase “fools for Christ,” let me offer some context. When Scalia said what he did in 2010, he was speaking to members of the St. Thomas More Society of Maryland. Justice Scalia was honored with the Society’s “Man for All Seasons Award,” given to members of the legal profession who embody the ideals of St. Thomas More.

Here’s how Catholic Review reported on the event:

Scalia outlined a long list of Christian beliefs that he said are greeted with derision by the worldly – dogmas including Christ’s divinity, the Virgin birth and Christ’s resurrection.

“Surely those who adhere to all or most of these traditional Christian beliefs are regarded in the educated circles that you and I travel in as, well, simple-minded,” Scalia asserted.

The Catholic justice cited a story in the Washington Post that described Christian fundamentalists as “poorly educated and easily led.”

“The same attitude applies, of course, to traditional Catholics,” Scalia said, “who do such positively peasant-like things as saying the rosary, kneeling in adoration before the Eucharist, going on pilgrimages to Lourdes or Medjugorje and – worst of all – following indiscriminately, rather than in smorgasbord fashion, the teachings of the pope.”

Scalia said believers should embrace the ridicule of the world.

“As St. Paul wrote to the Corinthians,” he said, “we are fools for Christ’s sake.”

Scalia noted that Christ described his followers as sheep and said no one will get into heaven without behaving like “little children.” Scalia warned, however, that reason and intellect must not be laid aside where matters of religion are concerned.

“Assuredly, a faith that has no rational basis is a false faith,” Scalia said.

The actual account leaves a different and more textured impression than the Post account, no? And did you notice something? Mr. Barnes didn’t report fully on what Scalia said, which is this: “As St. Paul wrote to the Corinthians, we are fools for Christ’s sake.” (Emphasis added.)

Most people would agree that there’s quite a difference between saying, “[Scalia] urged fellow intellectuals to be ‘fools for Christ’” and saying, “Scalia, in a speech in which he was honored by the St. Thomas More Society of Maryland, quoted the Apostle Paul in urging his fellow Catholics to be ‘fools for Christ.’”

It is a phrase most committed Christians would immediately recognize, and they would understand what it means: People who take their faith seriously will be viewed by those in the world who don’t share that faith as benighted, unenlightened, zealous, perhaps even something of a threat. Remarkably, St. Paul offered these thoughts even before he could cite the Washington Post’s coverage of Christians in public life as evidence for his claim.

Judge for yourselves, but it strikes me that the point of the story is fairly obvious: A devout person of faith is automatically suspect when it comes to judging on religious liberty matters. As a friend of mine put it to me, it’s “setting the stage for the argument that all but atheist progressives should recuse themselves from considering the legitimacy of the latest bold advance of atheist progressivism.” (We know how these things work. Liberals on MSNBC, having heard the secular dog whistle, are already raising doubts of whether “the court that will decide [the religious liberty cases] includes six Catholic justices, some of whom have not been shy about asserting their religion.”)

It would of course be offensive if the Post had (hypothetically) run a front-page article raising questions about whether a black justice could fairly rule on Brown v. Board of Education or if a Jewish justice could fairly rule on National Socialist Party v. Skokie. Does one’s sexual orientation–gay or straight–compromise one’s ruling on cases like Lawrence v. Texas? Would it be fair to raise doubts about the objectivity of non-Christian justices if they rule against the Greens in Sebelius v. Hobby Lobby? Exactly where does this identity politics begin and end?

Let me make one final observation. Everyone is motivated by a philosophical view of the world. It may be informed by religious faith or not. It may be Catholic or evangelical–or materialism or pragmatism. It may be based on the teachings of Jesus–or Kant’s categorical imperative, Mill’s theory of utilitarianism, Nietzsche’s Will to Power, or Derrida’s deconstructionism. One’s view may be shaped by Maimonides, Aristotle, John Rawls, or Richard Dawkins. It may be a very odd combination of all of the above. Or none of the above.

My point is we all have certain views about the human person and about human dignity–if the latter exists and if so, what it is based on. We all bring certain assumptions and precepts, some well formulated and others not, on how we interpret the world around us. Yet for people of a certain cast of mind, the only time this matter becomes controversial is when the worldview is Christian–particularly orthodox and traditionally Christian. (Many journalists tend to be less troubled by people of religious faith if their faith leads them to a liberal outcome. This explains why Jerry Falwell was treated much more harshly than Sojourner’s Jim Wallis, even though they are different sides of the same coin.)

When four years ago Justice Scalia said, “Surely those who adhere to all or most of these traditional Christian beliefs are regarded in the educated circles that you and I travel in as, well, simple-minded,” he knew of what he spoke. See the story by Robert Barnes, supra.  

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“Kelo”: The Shame of a Nation

When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

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When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.”

The excuses! We once had a consensus on public use, which amounted to: words have meaning. The courts now admit that, well, words are pregnant with meaning, aren’t they? A test of rights that would be “difficult to administer” becomes justification to discard those rights. Constitutional rights prove “impractical,” because of the “always evolving needs of society.” And who better than the government to interpret which rights go out the window when the “needs of society”–as divined by pompous politicians at the top of local political machines given unconscionable imprimatur of the United States Supreme Court–assert themselves?

I should like to know what other rights are “impractical.” The obvious response to this ridiculous display of state power is: if you think governing according to the Constitution and the God-given rights of a free people is too difficult, then get out of government. And don’t let the door hit you on the way out. Instead, the court seems to sympathize. The state is taking from the poor and giving to the rich, in most cases and almost by definition of this interpretation. But according to the court, the victims here just don’t understand that their further impoverishment and displacement so the government can give their property to those they prefer have it is really about the “always evolving needs of society.”

In 1999, the esteemed historian of Russia Richard Pipes took a break from his usual work to publish a book called Property and Freedom. “The subject of this book differs from that of every book I have ever written, all of which (apart from a college textbook on modern Europe) have dealt with Russia, past and present,” Pipes wrote. “And yet it grows naturally out of my previous work. … In the case of Russia, it is not the presence but the absence of property that is taken for granted.”

Pipes notes that the Western understanding of property has expanded from tangible assets to intellectual property. But it didn’t stop there. He explains that “in Western thought during the seventeenth and eighteenth centuries it acquired a still more comprehensive meaning to include everything that one can claim as one’s own, beginning with life and liberty. The whole complex of modern ideas connected with human rights has its source in such an extensive definition of property. This was noted two hundred years ago by James Madison.”

He goes on to quote Madison to that effect. Respect for private property rights is an essential foundation for a free society–and our Founders knew it and said so. The court’s decision in Kelo looks worse with every passing year, and we shouldn’t forget it for a moment.

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ObamaCare, Religious Liberty, and a Crucial Supreme Court Showdown

The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

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The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

So there’s an attack on allowing employers to be required to provide this insurance coverage on insurance that employees pay for, at the same time that there’s an attack on public availability through clinics.

One more time: there’s an attack on allowing employers to be required to provide this insurance. To the left, there is no freedom without government coercion. This is either incoherent or Orwellian, or both. But that’s the argument the left is running with: they want you to be forced to provide the funding for even their most private activities; only then will you be truly free.

But Fluke isn’t the only one making this argument. Mediaite has the video of an MSNBC roundtable on the issue, in which the panelists are panicked at the thought of affording Americans full religious liberty because, essentially, it’s then a slippery slope to protecting all constitutional rights. And then–mayhem, or something:

“This is another reason why we should have moved toward a single payer system of health coverage, because we’re just going to end up with one challenge after another – whether it’s in the courts or outside of the courts – and I just don’t see an end to this,” Herbert submitted.

“We’re already on the slippery slope of corporate personhood,” he continued. “Where does it end?”

“Where does it end” is the attention-getter in that comment, but I think Herbert’s plea for single-payer health insurance is just as telling. Put the government in charge of the country’s health care, Herbert argues, because then it will be much more difficult for Americans to “challenge” the government’s infringement on their freedom. It’s not just legal challenges either. Herbert says those challenges can be brought “in the courts or outside of the courts,” the latter perhaps an allusion to the shady world of participatory democracy.

So this is much more than a fight over birth control, or even health insurance. It’s about two fundamentally different views on American constitutional freedoms. Conservatives want those freedoms to be expansive and protected, as the Founders did. Liberals want those freedoms to be curtailed lest the citizenry get greedy or the democratic process imperil the state’s coercive powers.

The Founders saw religious freedom as elemental to personal liberty in America. But they were not alone in thinking that unimpeded religious worship was a guard against an overly ambitious or arrogant national government. As Michael Burleigh writes about the role of religion in post-French Revolution European politics, with a supporting quote from Edmund Burke:

The political function of religion was not simply to keep the lower orders quiescent, as has been tiresomely argued by generations of Marxists, but also to impress upon those who had power that they were here today and gone tomorrow, and responsible to those below and Him above: ‘All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.’

Religion was not the “opiate of the people,” intended to keep them in line. It was, rather, to keep the government in line. This was not a revolutionary idea; it predated the American Constitution, certainly. As Francis Fukuyama writes in The Origins of Political Order: “The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The assertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made.”

A battle over the constitutional protection of religious liberty is not an abstraction nor, as in cases like the birth-control mandate, a minor social-issue front in the culture war. Such battles go to the heart of how we seek to govern ourselves and how we understand the fundamental documents that serve as the explication of our national political identity. Americans should watch this case closely and take its implications seriously.

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Media Clings to Disproven Narrative; Hilarity Ensues

As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

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As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

Viewed in isolation, the Supreme Court term that just ended had elements of modesty. The court declined to do away with affirmative action, gave Congress another shot at salvaging the Voting Rights Act and refused to find a constitutional right to same-sex marriage.

But glancing at an end-of term snapshot can be misleading….

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.

His patient and methodical approach has allowed him to establish a robustly conservative record while ranking second only to Justice Anthony Kennedy as the justice most frequently in the majority.

This is a stunningly honest statement of the Times’s extremism on legal issues. Roberts has, the Times tells us, made major ruling after major ruling upholding liberal conventional wisdom on a host of cultural and political issues deemed essential to the liberal project, and he has often sought not to use the court majority to push through wholly conservative opinions but instead to engage with the liberal justices, find common ground, and forge compromises that meet in the middle.

That may sound like an eminently reasonable and, from a political standpoint, admirable record. But the Times strongly disapproves of such behavior, because it does not want the court to possess such legitimacy and it does not approve of compromise with conservatives it believes should only be the object of demonization.

The Times tells us that a larger-than-usual percent of the court’s decisions were unanimous this year. But that, too, is bad news, because the article also tells us that Obama’s solicitor general has had below-average success in front of the court defending administration preferences. To the Times, that means the liberal justices are complicit in a rightward shift. The reality, of course, is that President Obama, a supposed constitutional law expert, is uniquely poor at governing according to the Constitution.

The Washington Post also tries to fit this week’s court decisions into its larger narrative about the Roberts court, with similar results. It reviews the liberal decisions handed down by the judges recently and then quotes a former lawyer in the Obama White House: “If you weren’t paying close attention, you might say, ‘What a liberal Supreme Court we have.’ ”

That’s an interesting phrase, “if you weren’t paying close attention.” And it basically sums up the way the media, confronted with the essential and obvious fraudulence of its narrative about the Roberts court, has explained away its journalistic advocacy.

Don’t be fooled by the moderate and ideologically diverse record of the Roberts court, they say, and don’t be fooled by the lengths to which Roberts will go to compromise with liberal justices and craft decisions that all the judges can get behind. That may be the reality, but it conflicts with the press narrative and one of them must be wrong. It can’t be the press, can it?

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On Turning Political Opponents into Moral Monsters

I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

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I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

It’s worth pausing over what Justice Scalia is saying here, which is that we’re all susceptible to weaving narratives that are black and white, that truth is often more complicated than that, and that it’s hard to admit that one’s political opponents are not monsters, especially in a struggle like this one.

I’ve written in the past about this phenomenon. We often deny to those with whom we disagree any benefit of the doubt, since we assume they see facts, events and justice just as we do. This makes their differing conclusions from us very nearly impossible to comprehend–and in turn makes it easy to characterize one’s opponents as pernicious. It would help our political culture if we understood that every one of us has an imperfect angle on reality; that our perception of justice is always at least a bit distorted; and that all of us see through a glass darkly and know things only in part. 

To be sure, this is not an argument against spirited and intense disagreements (I’ve been involved in a few of those myself over the years). Nor do I mean to imply that some people aren’t closer to perceiving truth and wisdom than others. It’s simply to say that Justice Scalia is correct; in politics, in judicial and theological disputes, and in life generally, it’s sometimes hard to admit that our political opponents, while they may be wrong, are not monsters. They are, in fact, fellow citizens. Which is probably worth remembering on days like this and in the aftermath of decisions like this.

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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On DOMA, SCOTUS Follows the Culture

Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

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Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

For example, even today as much of America celebrates the newly enshrined concept of marriage equality, few seem to have any problem prohibiting two or three women from marrying the same man and in treating such “Big Love” marriages as being beyond the pale of the law’s protection. Under the logic of the DOMA decision, that ought not to be true. But even to ask the advocates of gay marriage if their victory should extend to polygamous spouses would probably be viewed as a provocation rather than a reasonable question. Perhaps that will no longer be true in a generation, but unless the entertainment industry is prepared to start including more “plural marriage” characters in its situation comedies, I wouldn’t bet on it.

The defenders of traditional marriage can console themselves that the majority in the DOMA case did not overreach in the manner of the authors of the Roe v. Wade decision and have not attempted to mandate gay marriage throughout the country. They have wisely left the decision about whether to legalize such unions to the states. Doing so reaffirms the basic concepts of federalism and allows those states that refuse to accept gay marriage to go on doing so. That may change if Hillary Clinton is elected president in 2016 and is able to replace some of the court’s conservatives with liberals. At that point the court may strike down all state laws or constitutional amendments that do not conform to this standard, which is something they refused to do in the California Proposition 8 case today where they merely said the plaintiffs had no standing to defend the statute.

But the point here is that gay marriage advocates won the legal war because they first won the culture war. Those conservatives who hope to avoid the same outcome on other issues would do well to remember that. 

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Money, Speech and Morgan Freeman

Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

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Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

Scalia: You can’t separate speech from the money that facilitates the speech.

Morgan: Can’t you?

Scalia: It’s utterly impossible. Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper?

Exactly. If you limit the amount of money that can be spent on speech, you are consequently limiting the speech. It’s true that some people have more to spend on this than others. But there are all kinds of inequalities when it comes to speech. Some people run newspapers. Some people have radio shows. Some people have prominent jobs that provide them with platforms to reach large audiences.

And then there are those who choose to spend their own money to express their voices on politics. Freeman apparently gets it. When will Senate Democrats figure it out?

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Chief Justice’s Approval Rating Dives 40 Points With Republicans

Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

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Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

Republicans aren’t going to forgive Roberts anytime soon. But what about the other conservative justices on the Supreme Court who were reportedly furious with him?

Time heals all wounds, as the saying goes, and according to a couple of justices, the rancor at the U.S. Supreme Court in the wake of the Affordable Care Act decision probably won’t survive the summer.

“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” one justice told the National Law Journal. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”

Another justice echoed those sentiments, for the most part. “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration,” the NLJ reported a second justice as saying.

This seems much more intense than the usual “overlay of frustration.” Have there ever been this many leaks after a Supreme Court decision? That alone tells you the extent of the friction. Roberts didn’t just have a disagreement with his conservative colleagues; he basically threw them under the bus on what may be the defining case of his tenure.

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A COMMENTARY Guide to ObamaCare

While the country waits for the Supreme Court’s decision on ObamaCare, we invite readers to enjoy Tevi Troy’s recent series of COMMENTARY articles on American healthcare and its political and legal journey. Troy, a former deputy secretary of Health and Human Services, begins the incisive series with April 2010’s  “Health Care: A Two-Decade Blunder,” explaining how the issue first became so highly politicized, and ends with May 2012’s “Three Days that Shook ObamaCare,” detailing the pivotal Court arguments that took place in March. The articles make for a comprehensive resource on this pivotal national issue and, moreover, they’re all great reads.  See links below.

 

While the country waits for the Supreme Court’s decision on ObamaCare, we invite readers to enjoy Tevi Troy’s recent series of COMMENTARY articles on American healthcare and its political and legal journey. Troy, a former deputy secretary of Health and Human Services, begins the incisive series with April 2010’s  “Health Care: A Two-Decade Blunder,” explaining how the issue first became so highly politicized, and ends with May 2012’s “Three Days that Shook ObamaCare,” detailing the pivotal Court arguments that took place in March. The articles make for a comprehensive resource on this pivotal national issue and, moreover, they’re all great reads.  See links below.

 

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SCOTUS Hands Victory to Supporters of Citizens United

The biggest news out of the Supreme Court today is its decision on the Arizona immigration law, but it also handed a victory to supporters of Citizens United by knocking down a Montana law banning in-state corporate political spending. WSJ reports:

The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. Court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the Court wrote.

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The biggest news out of the Supreme Court today is its decision on the Arizona immigration law, but it also handed a victory to supporters of Citizens United by knocking down a Montana law banning in-state corporate political spending. WSJ reports:

The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. Court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the Court wrote.

The 5-4 decision — which broke across the same lines as the Citizens United decision — was a reaffirmation that free speech rights of corporations extend to state and local elections. Senate Minority Leader Mitch McConnell, a long-time champion of this issue, released a statement praising the verdict:

“In another important victory for freedom of speech, the Supreme Court has reversed the Montana Supreme Court, upholding First Amendment free speech rights that were set out in Citizens United. As I pointed out in an amicus brief that I filed in the Montana case, a review of Federal Election Commission records of independent spending supporting the eight Republican presidential candidates earlier this year showed only minimal corporate involvement in the 2012 election cycle. Not one Fortune 100 company contributed a cent to any of the eight Republican Super PACs, as of the end of March, according to FEC records. The records also showed that of the $96 million contributed to the eight Super PACs through March 31, an overwhelming 86.32 percent of that money came from individuals while only 13.68 percent came from corporations and 0.81 percent from public companies. Clearly, the much predicted corporate tsunami that critics of Citizens United warned about simply did not occur.”

The decision is likely to prompt more cries from the left that the Supreme Court is far-right and illegitimate. While it’s a setback for the anti-Citizens United crowd, the decision wasn’t unexpected, and it’s not going to stop the liberal clamor to repeal protections on corporate speech.

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Killing Obamacare Could Help the President

Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

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Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

Yet, the death of Obamacare would lift a vast amount of uncertainty from the marketplace, and uncertainty, even more than bad news, depresses markets. As Betsy McCaughey pointed out recently in IBD, the requirement that employers with 50 or more employees provide a specified level of health insurance beginning in 2014 or pay a $2000 fine per employee will greatly increase labor costs, by an average of $1.79 an hour for each employee. That would be the biggest government-mandated labor cost hike in American history. This has made employers reluctant to hire, as their future labor costs are to a significant degree currently unknown. And those firms with nearly 50 employees have been very reluctant indeed to cross that threshold, for fear of becoming subject to the mandate.

With that uncertainty suddenly removed, there could be an immediate marked increase in hiring, leading to a fall in the unemployment rate. That would be a Godsend to the Obama campaign.

With the chattering classes collectively holding their breaths, the decision could come Monday. (Actually, I’m betting against Monday. At the penultimate sitting of the Court in June, the chief justice usually announces that the next sitting will be its last before the Court recesses for the summer. Chief Justice Roberts did not make such an announcement last Thursday, and so Monday probably won’t be the last decision day this term. The biggest decision of the year—in this case, the biggest decision in decades—is almost always announced on the last day of the term.)

But if it does come Monday and you want to get the news first, log onto scotusblog.com at ten o’clock tomorrow morning. They’ll be liveblogging the decisions being handed down at that time. The health care opinion is likely to be written by the most senior justice in the majority and so will be among the last to be announced, as decisions are read beginning with those written by the most junior justice. If Chief Justice Roberts is in the majority—which most likely means all or part of the law will be struck down—it will be announced last.

For what it’s worth, the Intrade odds as of Sunday morning are at 78.2 percent that the individual mandate will be thrown out, better than 3-to-1 and up sharply in the last few weeks.

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Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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McConnell Vows to Defend Citizens United

Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

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Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

The latest example is David Axelrod, who promised earlier this week that if Obama wins a second term, he will pursue any option — including a constitutional amendment — to restrict these rights:

“When we win, we will use whatever tools out there, including a constitutional amendment, to turn this back. I understand the free speech argument, but when the Koch brothers can spend $400 million, more than the McCain campaign and the Republican Party spent last time, that’s very concerning.”

At AEI, McConnell blasted Axelrod and the Obama administration for the proposal.

“Amending the First Amendment for the first time in history is an act of radicalism,” said McConnell.

There are other indications that the issue of political money will be back at the top of the news this summer. The Supreme Court reportedly met earlier this week to consider a Montana case that challenges some aspects of the Citizens United decision and a subsequent Appellate Court ruling on unlimited political contributions. The Los Angeles Times reports that the appeal isn’t expected to be denied, and the Supreme Court may either decide to hear the case or write a summary opinion defending the Citizens United ruling.

McConnell said as the election nears, some Republicans may be tempted “to take the issue off the table or make concessions.”

“My advice is to resist the temptation,” he said.

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