Commentary Magazine


Topic: Supreme Court

Drawing District Lines

In 2000, the people of Arizona, by initiative and referendum, took away from the state legislature the power to draw district lines for both the state legislature and for Congress. The argument that allowing the legislature to do so is an obvious conflict of interest, a conflict of interest that has been exploited to the hilt over the last two centuries in most states. The Arizona State Legislature sued in federal court, arguing that the Constitution’s elections clause, Article I, Section 4, gives the legislature the exclusive right to set the lines. On Monday, the Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission ruled in favor of the Redistricting Commission, 5-4. Read More

In 2000, the people of Arizona, by initiative and referendum, took away from the state legislature the power to draw district lines for both the state legislature and for Congress. The argument that allowing the legislature to do so is an obvious conflict of interest, a conflict of interest that has been exploited to the hilt over the last two centuries in most states. The Arizona State Legislature sued in federal court, arguing that the Constitution’s elections clause, Article I, Section 4, gives the legislature the exclusive right to set the lines. On Monday, the Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission ruled in favor of the Redistricting Commission, 5-4.

Gerrymandering is a uniquely American perversion of democracy, unknown elsewhere in the English-speaking world, where independent, non-partisan districting commissions are the norm. It’s end of this blot on American democracy would be more than welcome. But does this decision make a good constitutional argument? I don’t think so.

The elections clause says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; . . .” Justice Ginsburg, writing for the majority, argues that since Arizona has initiative and referendum, “the people” constitute a legislature and thus the Arizona system comports with the Constitution. Chief Justice Roberts, in withering dissent, says that that is nonsense as the Constitution frequently uses the terms “legislature” and “the people” and never, ever interchangeably. In 1787, the idea of initiative and referendum — a reform of the Progressive era to circumvent legislative corruption — was unheard of. It seems incontestable that when the delegates to the Constitutional Convention wrote “legislature,” they meant a body of elected men empowered to write laws.

But does “Time, Places and Manner of holding Elections” encompass the drawing of district lines? Certainly “Time” and “Places” have obvious meanings. But does “Manner” mean anything more than the method of voting on Election Day, such as raising hands, paper ballots, etc.? I’m not at all sure that it does.

Gerrymandering was also unknown in 1787. It was invented in 1812 by Governor Elbridge Gerry of Massachusetts. When one politically self-serving district he drew was said to resemble a salamander, a portmanteau word was born. (The governor’s name is pronounced with a hard G, however.) And I am not at all sure that the delegates even considered the problem of districting at all. The only precedent they had was the British Parliament, and it hadn’t been redistricted since the reign of Henry VIII.

Not even the conclave of geniuses that sat in Philadelphia in the hot summer of 1787 could anticipate everything. Just as they failed to anticipate the rise of factional parties so they failed to anticipate gerrymandering or, perhaps, the problem of districting at all.

And if the Constitution is silent on the subject of districting, are not the states free to handle the problem as they please, subject only to the Congressional override that Article I, Section 4 also provides for?

In other words, by narrowly construing the word “Manner” rather than very broadly construing the word “Legislature,” Justice Ginsburg could have achieved her end without doing unnecessary violence to both the Constitution and the English language.

 

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An Increasingly Autocratic EPA Encounters a Roadblock

Conservatives who have come to view the Supreme Court led by Chief Justice John Roberts with contempt in recent years had that belief vindicated by a variety of decisions the Court handed down this term. The Court bent over backward and virtually rewrote the statute (again) in order to preserve the Affordable Care Act. It found a constitutional right to same-sex marriage whereas no such right to heterosexual marriage exists in that same document’s ever-evolving penumbra. Though the Supreme Court determined that the use of lethal injection drugs by the state did not violate the constitution, a handful of liberal justices concluded that the practice of capital punishment authorized in the Fifth Amendment suddenly violated the Eighth. In the future, a majority of the nine in black who are apparently so susceptible to societal pressure might soon agree with what is at present a minority opinion. But the Court gave forlorn conservatives at least one reason to smile at the end of this term. In a 5-4 decision in Michigan v. EPA on Monday, the Supreme Court correctly addressed a matter genuinely outside the voters’ control: the rapid expansion of the regulatory state. The Court’s decision in a case involving a pervasive proposed regulation from the Environmental Protection Agency could inaugurate a process of curtailing the power of America’s unelected bureaucracy.  Read More

Conservatives who have come to view the Supreme Court led by Chief Justice John Roberts with contempt in recent years had that belief vindicated by a variety of decisions the Court handed down this term. The Court bent over backward and virtually rewrote the statute (again) in order to preserve the Affordable Care Act. It found a constitutional right to same-sex marriage whereas no such right to heterosexual marriage exists in that same document’s ever-evolving penumbra. Though the Supreme Court determined that the use of lethal injection drugs by the state did not violate the constitution, a handful of liberal justices concluded that the practice of capital punishment authorized in the Fifth Amendment suddenly violated the Eighth. In the future, a majority of the nine in black who are apparently so susceptible to societal pressure might soon agree with what is at present a minority opinion. But the Court gave forlorn conservatives at least one reason to smile at the end of this term. In a 5-4 decision in Michigan v. EPA on Monday, the Supreme Court correctly addressed a matter genuinely outside the voters’ control: the rapid expansion of the regulatory state. The Court’s decision in a case involving a pervasive proposed regulation from the Environmental Protection Agency could inaugurate a process of curtailing the power of America’s unelected bureaucracy. 

In the Obama era, the EPA has been defined not as an institution designed to safeguard public health but to sabotage the American economic engine in the name of vague and ill-defined climatological concerns. To that end, the agency was authorized to regulate mercury, arsenic, and acid gasses emitted by coal-fired power plants. In practice, the move was almost explicitly designed to accelerate the process of mothballing America’s coal-fired power plants. The EPA gave no consideration to the costs incurred by firms trying to meet its new regulatory guidelines. The House GOP’s measures introduced in 2011 that were designed to reduce the technological thresholds industrial facilities would be required to meet to comply with the EPA rules never made it out of Congress. On Monday, the Court put a halt to the implementation of this rule that was expected to cost nearly $10 billion. By some estimates, they would have raised the costs of electricity by as much as $1,200 per year for every American household.

The majority opinion, authored by Justice Antonin Scalia, found that the EPA “unreasonably” interpreted the Clean Air Act to constitute a vehicle by which the environmental regulatory agency could institute new guidelines that were all but overtly aimed at shuttering “dirty” power plants. “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants,” the opinion read. That’s significant; contrary to the wealth of shallow emotionality that suffices for modern political commentary, profits matter. Individual livelihoods and the economic health of the nation are still protected by the Constitution, and they should not be subordinated to environmental sustainability in the zero-sum game that has become America’s regulatory culture.

In her dissent, Justice Elena Kagan scolded her colleagues for engaging in the “micromanagement of EPA’s rulemaking.” The justice’s newfound concern for judicial restraint is heartrending, but her admonition is doubly ironic. It’s fitting that an agency that views as its mission micromanaging whole industries to death would itself become the target of meddlers. The agency founded to protect America’s natural landscapes and safeguard the public from disreputable polluters has instead transformed into a revolutionary advocacy organization that wields immense power and recklessly deploys it against its perceived enemies.

Coal is not the agency’s only target. The improved exploitation of oil and natural gas in America that has resulted from the development of new technologies and extraction processes has proven uniquely vexing for this regulatory agency. The EPA tightened the rules on firms engaged in hydraulic fracturing (“fracking”) in March that required them to disclose the proprietary chemicals used in the process and to build large barriers to protect nearby water sources. Three months later, the agency’s own study of the practice found that water contamination as a result of fracking was neither “widespread” nor “systemic.” The agency’s new rules were a solution in search of a problem. That is, unless one views the problem as the practice of fracking itself.

Nor is curtailing industry the EPA’s only infringement on American liberties. In 2008, Idaho couple Mike and Chantell Sackett purchased a plot of land near their home in Idaho with the intention of building a new structure. After obtaining all the necessary local permits, the EPA halted their project and they were told to restore the land they had purchased to its pre-construction state or face thousands of dollars in fines. It turned out that the couple was building on what the EPA determined were protected wetlands, despite the fact that it had already been built upon and was purchased with a pre-installed sewer main. After four years, the Supreme Court of the United States unanimously ruled the EPA had unilaterally seized property and arbitrarily dubbed it “wetlands” after the fact.

“[T]he agency ought to have asked itself years ago whether it really needed to hassle a couple seeking to build a home in an existing subdivision, helping to justify every negative caricature of the EPA that Republican presidential hopefuls peddled during the primary race,” The Washington Post‘s editorial board advised. “Perhaps the agency would have been able to keep more of its regulatory power if it had been more judicious.” That admonition has surely fallen on deaf ears at the EPA. In May, the agency just expanded its regulatory authority over waterways to include small ponds, those subjectively defined “wetlands,” and agricultural irrigation ditches, none of which run off into navigable waterways.

In 2010, senior EPA official Al Armendariz resigned after he was discovered to have said that his agency’s philosophy toward polluters should be similar to the Roman practice of mass and indiscriminate crucifixion in order to tamp down rebellion. It was a window into the dominant line of thought that pervades this bureaucracy, one of the most onerous members of America’s vast and expanding regulatory rubric. Armendariz resigned in disgrace, but the mentality he identified still prevails at the agency he once helped to manage. In a small victory for individual liberty and state sovereignty, the Supreme Court narrowly curtailed the growing power of America’s most intrusive regulatory agency. If history is any guide, however, these gains will be temporary and elusive unless the agency’s reform becomes a political priority for the next Republican administration.

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The GOP 2016 Field Prepares New Assaults on ObamaCare

If those who declared debates over the onerous Affordable Care Act dead and buried in the wake of the Supreme Court’s verdict in King v. Burwell had any sense of history, they would have known that their prediction was more a statement of faith than objective assessment of prevailing political realities. ObamaCare will never be the “settled law” its supporters wish it were until the public sheds its suspicion of it. Jonathan Tobin is correct to observe that the Court’s decision in King likely preserves elements of the law as part of the American social compact, although that was probably the case the moment the bill was signed. Those who want to see the law repealed root and branch and return to the status quo ante are going to have to give up that ghost, but the idea that the ACA as a political issue is now moot is groundless. In fact, the Court’s decision in King has only made it more likely that the GOP will continue its crusade against Barack Obama’s health care reform law. Read More

If those who declared debates over the onerous Affordable Care Act dead and buried in the wake of the Supreme Court’s verdict in King v. Burwell had any sense of history, they would have known that their prediction was more a statement of faith than objective assessment of prevailing political realities. ObamaCare will never be the “settled law” its supporters wish it were until the public sheds its suspicion of it. Jonathan Tobin is correct to observe that the Court’s decision in King likely preserves elements of the law as part of the American social compact, although that was probably the case the moment the bill was signed. Those who want to see the law repealed root and branch and return to the status quo ante are going to have to give up that ghost, but the idea that the ACA as a political issue is now moot is groundless. In fact, the Court’s decision in King has only made it more likely that the GOP will continue its crusade against Barack Obama’s health care reform law.

Republicans are rightfully aghast at the deplorable logic the majority of Supreme Court justices used to justify yet another reinterpretation of the Affordable Care Act. The Court abandoned its role as a neutral arbiter of legal text, ignored precedent, and virtually rewrote the statute so that the federal government could do legally what it had been doing illegally for months. The GOP’s more cynical elements are surely thanking the Supreme Court under their breaths, however, for this latest bit of jurisprudential gymnastics. If the Court had ruled in the opposite direction, Republicans would have faced a dramatic political conundrum. They would have been compelled to reintroduce those subsidies the Court stripped from the law into the majority of states that did not elect to establish their own federal insurance exchange marketplace. They would have been forced to endorse, all or in part, the mandates that oblige Americans to purchase a product from a private service provider at gunpoint. They would have invited a civil war that would have torn the party apart and might have cleaved the conservative wing away from the GOP permanently. The Roberts Court rescued the Republican Party from this trap.

The Affordable Care Act now continues its fraught implementation without having any bipartisan imprimatur. The GOP put not a single fingerprint on this law in 2010, and they were not compelled to lay a hand on it in the intervening years. As such, Republicans can continue to campaign against this law in whole rather than in part, and a variety of prominent 2016 candidates have elected to do just that.

The next stage in the GOP’s fight against the Affordable Care Act will be a legislative one. It has centered on the expansion of the “nuclear option” invoked by former Senate Majority Leader Harry Reid in 2013. While in the majority, the outgoing Democratic Senate leader altered Senate guidelines so that rule changes need only be approved by a simple majority and then eliminated the minority right of filibuster for judicial nominations. Now, a handful of Republican 2016 candidates contend that this rule change should be expanded so that the filibuster cannot prevent a narrow GOP majority from repealing the ACA altogether in 2017.

“I think we Republicans first need to unify behind the replacement,” former Florida Gov. Jeb Bush told radio host Hugh Hewitt last week. When asked if he would be open to breaking the filibuster to “ram though repeal and replacement,” Bush said that he would “consider that.”

Another frontrunner in the race to secure the Republican Party’s presidential nomination, Wisconsin Gov. Scott Walker, endorsed the idea more emphatically.

“There are a lot of Republican Senators who love the filibuster. Rick Santorum told me you don’t need to break the filibuster to repeal ObamaCare,” Hewitt asked the Badger State governor. “But if it’s necessary to do so, will you urge your Republican colleagues to invoke the Harry Reid rule that he used last year that he used to break the filibuster to repeal ObamaCare root and branch?”

“Yes,” Walker replied. “Absolutely.”

Expect this new line of attack against ObamaCare to soon become part of the Republican Party’s 2016 platform.

When Democrats sacrificed the rights of the minority in the Senate for fleeting and temporary gain, they knew they would be inviting this sort of backlash. But, despite myriad provocations, the GOP Senate majority has thus far declined to give their colleagues a dose of their own medicine. In February, Democrats successfully blocked a proposal to defund elements of the Department of Homeland Security that would forestall the implementation of the president’s constitutionally dubious executive actions on immigration. The move was so brazen that it “radicalized” even otherwise temperate voices within the party like the columnist Charles Krauthammer. “Go bold. Go nuclear. Abolish the filibuster,” he advised. But Majority Leader Mitch McConnell declined to scorch the earth.

His was a move that proved prescient; if the GOP accelerates the pace of the dilution of minority rights in the upper chamber begun by Democrats, they should do so only when the party’s governing coalition is at stake. If a Republican presidential candidate won the White House in November 2016, he or she would almost certainly also have Republican majorities in Congress. To fail to do all within their power to dismantle ObamaCare in that eventuality would rightly be seen as a gross betrayal of the new governing majority’s mandate.

Let’s be clear: there is a lot not to like about the virtual abolishment of the filibuster. Minority rights are a cherished parliamentary tool, and growing factionalism in Congress will only be exacerbated by the filibuster’s effective elimination. Moreover, it’s quite untoward for presidential contenders like Walker and Bush to fail to observe that their province as president ends at the steps of the Capitol Building. It would perhaps have been more republican if they had responded to this line of inquiry by deferring to the leader of the Senate in the 115th Congress, whoever that might be. But the estimable era of Coolidge-esque stoicism is over. It is now the role of America’s chief executive to lead on virtually all matters of state, including those that should be the exclusive domain of the legislative branch.

The fight over the Affordable Care Act is far from over, although the nation might have witnessed the end of the beginning last week. The battle over the future of this controversial law and its impact on American society now shifts back to the political battlefield, onto the shoulders of the field of presidential contenders and, ultimately, the 2016 electorate.

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The Intellectual Dishonesty of John Roberts

I’ve written before about confirmation bias — the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories. But rarely have I seen it more on public display than in the case of the majority decision on the Affordable Care Act (ACA) by Chief Justice John Roberts. Read More

I’ve written before about confirmation bias — the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories. But rarely have I seen it more on public display than in the case of the majority decision on the Affordable Care Act (ACA) by Chief Justice John Roberts.

To quickly summarize: In King v. Burwell, the Court, in a 6-3 ruling, determined that the language in the ACA limiting insurance subsidies to “an Exchange established by the State” really means “an Exchange established by the State or the Federal Government.” Justice Scalia’s withering dissent shows how neither the plain text of the Act nor the context of the text justifies the majority’s decision. In reading the majority opinion, one senses that even Chief Justice Roberts doesn’t believe his own arguments; that even he knows that the reason the words “by the State” were included in the Act was to limit credits to state Exchanges. As Justice Scalia methodically pointed out, “Under all the rules of interoperation … the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

And so it has been, twice now, thanks to Chief Justice Roberts. For reasons that only he must know, Roberts decided to take it upon himself to salvage the Affordable Care Act by rewriting it. He decided to become a legislator in order to repair a failing law, which is not the proper role of a Supreme Court justice. And in the process John Roberts decided to become the Supreme Court’s version of Jacques Derrida. (Derrida, a French philosopher, was the originator of a form of analysis known as deconstructionism, a theory that questions the ability of language to represent reality and emphasizes that a text has no stable reference or identification.)

In this case, Roberts decided that the clear meaning of words counts for nothing at all. They can be twisted and reinterpreted and reinvented to his heart’s delight, to the point that “an Exchange established by the State” means “an Exchange not established by the State.” All in order to save the Affordable Care Act. That was the Roberts mission.

Chief Justice Roberts succeeded in that mission, although in the process he did irreparable damage to his reputation. His decision was not just shallow but downright intellectually dishonest. He has to know he manufactured extraordinarily weak justifications to save the Affordable Care Act. And if he ever forgets that, he only needs to read Antonin Scalia’s devastating dissent to remind him.

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Obama Instructs the Court

Presidents nearly always come with fully-functional egos. After all, climbing the greasy pole of American politics requires rich reserves of self-confidence. And self-confidence is equally necessary to being an effective president. No one wants a Captain Queeg in the White House. But Barack Obama combines his egocentricity with an almost boundless intellectual arrogance. It is one of the primary reasons his presidency has been so devoid of successes and so filled with failures and disasters. Only Woodrow Wilson comes anywhere close to being in the same league. And look what happened to him.

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Presidents nearly always come with fully-functional egos. After all, climbing the greasy pole of American politics requires rich reserves of self-confidence. And self-confidence is equally necessary to being an effective president. No one wants a Captain Queeg in the White House. But Barack Obama combines his egocentricity with an almost boundless intellectual arrogance. It is one of the primary reasons his presidency has been so devoid of successes and so filled with failures and disasters. Only Woodrow Wilson comes anywhere close to being in the same league. And look what happened to him.

The reason, as Noemie Emery points out in the Washington Examiner, is that men like Obama and Wilson can’t learn from their mistakes because they cannot admit, or even conceive, that they can make mistakes.

The conventional view of what has gone wrong — that Obama lacked experience, and that first-term senators should be viewed with suspicion — is undercut by the fact that he has had six years of experience, and failed to learn from it. At home and abroad, Obama makes mistakes over and over, with the same result, and takes nothing from them. He disses his friends, placates aggressors and seems surprised that aggressors advance and whole regions catch fire.

His arrogance keeps him from even listening to anyone who disagrees with him.

He refuses to bargain with Congress, insults opponents, imposes unpopular policies by fiat and seems surprised when his measures result in court challenges, when polarization increases, opposition solidifies, divisions harden and gridlock prevails. Deal-making is the essence of politics, but Obama finds it demeaning, so he resorts to brute force when he has the means to (as in the still-festering matter of healthcare). Alternatively, as with immigration, Obama resorts to executive actions that stir angry resistance and are frequently halted by courts.

Yesterday, at a news conference in Germany, Obama criticized the Supreme Court for a decision the court has not yet even made. It is not uncommon for presidents to criticize the court after decisions they don’t like (Andrew Jackson famously said in one case, “the court has made its decision, now let it enforce it”), but only Obama, as far as I know, has shown so little respect for a co-equal branch of government as to, effectively, instruct the court on its duty. He’s done it before.

Yesterday’s instructions to the court are with regard to King v. Burwell and whether federal subsidies are available in the federal health insurance exchanges. Obama said that it, “should be an easy case. Frankly, it probably shouldn’t even have been taken up.” I imagine the Supreme Court justices — not without their own egos by any means — appreciated that from someone who has not spent 30 seconds on even a night court bench. The decision, opines Obama, is “not something that should be done based on a twisted interpretation of four words, in, as we were reminded repeatedly, a couple-thousand-page piece of legislation.”

Is it really a “twisted interpretation” to think that “established by the states,” means, well, “established by the states”?

We’ll all find out what the Supreme Court thinks it means by the end of the month. It is not unprecedented, by any means, for the court to change its mind at the last minute. Telling the court what its obligations are is a pretty good way of nudging a justice or two to decide against the administration.

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The Left Frets: What If the Supreme Court Recognizes the Dignity of Christians?

A nagging question I’ve had while watching local businesses sued into oblivion for the Christian thoughtcrimes of their proprietors is: What will it take for liberals to finally have second thoughts about the way in which gay marriage is being legalized? Few dispute that it will be fully legalized, and probably soon, and probably by the Supreme Court. But would liberals, once assured of total victory, have any pangs of conscience about salting the earth behind them? No, it turns out–but we have finally discovered something that makes them nervous about the recognition of a right to same-sex marriage: the possibility that conservatives, especially Christians, might somehow benefit as well.

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A nagging question I’ve had while watching local businesses sued into oblivion for the Christian thoughtcrimes of their proprietors is: What will it take for liberals to finally have second thoughts about the way in which gay marriage is being legalized? Few dispute that it will be fully legalized, and probably soon, and probably by the Supreme Court. But would liberals, once assured of total victory, have any pangs of conscience about salting the earth behind them? No, it turns out–but we have finally discovered something that makes them nervous about the recognition of a right to same-sex marriage: the possibility that conservatives, especially Christians, might somehow benefit as well.

Along those lines, there is something deeply disturbing about Jeffrey Rosen’s otherwise insightful piece in the Atlantic on how the justices during oral arguments this week seemed supportive of the idea of there being a right to dignity, and that this dignity is being withheld from gay couples seeking to marry. It’s a smart essay in many ways, since Rosen picks up on something not many supporters of same-sex marriage pay attention to: the importance of the method and the reasoning by which gay marriage is ultimately recognized by the state.

Most supporters of gay marriage have held to an any-means-necessary outlook. Rather than trying to convince the rest of the public to catch up to the sudden majority in favor of gay marriage, they have been using mob McCarthyism to ruin the lives of those with whom they disagree, while also pressing the courts for a gay-marriage version of Roe v. Wade; that is, a court decision that would hand the left a victory but guarantee the issue would be polarizing and its adoption nondemocratic.

Gay marriage itself is on course for overwhelming acceptance. The only question is whether its legal establishment will be the beginning or the end of it as a contentious political issue. Liberals prefer it to be the beginning of a long fight.

That might not seem to matter all that much, but in fact it matters a great deal to the minority who oppose gay marriage. Were liberals to pursue the establishment of gay marriage in such a way as to prevent a Roe situation and thus end an acrimonious process, they would be incentivizing opponents to cooperate in their own ideological or religious defeat. But if religious Americans are made to understand that this is only the beginning of the fight, then they would be hugely mistaken to acquiesce. The message from the left is that once their premise is accepted, dissenting voices will be rooted out ruthlessly and with the full force of the state behind the witch hunt.

Which brings us to what is finally making the left nervous: any ruling that would legalize gay marriage but would also curb their ability to carry out those witch hunts. Rosen discusses potential swing justice Anthony Kennedy’s attachment to the dignity of the those before the court:

Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

Rosen gives us some jurisprudential and historical context on dignity, and concedes “the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship.” But, he cautions, “constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret.”

Why might that be the case? Because of the dystopian future this could create: what if the courts decide that–gasp–conservatives also have dignity? Imagine the terrifying world in which conservatives are treated with dignity:

If dignity is defined so elastically, then conservatives (sic) judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my (sic) language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians.

And there it is. If the court recognizes a right to dignity, liberals will be forced to reckon with a situation in which conservative Christians are equal under the law. And that means they have dignity too.

To judge by the reaction, this might be a step too far for the left. But it’s instructive nonetheless because Rosen’s piece grapples with what happens when the winning team sets precedent: with great power comes great responsibility. Liberals may want to argue that people have a right to be treated with dignity by the state, and therefore gay couples’ right to marry should be anchored in constitutional law. But how comfortable are they with the idea that Christians are people too?

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The Supreme Court and Religious Freedom: A Step Back?

As a teenager applying for a job at The Gap, I wore my yarmulke to the interview. There were no questions about my head covering, and I got the job. I can’t imagine the kippah violated a store dress code (though I don’t think I checked before applying), and I had a tendency to wear black knitted kippot which, atop a head of dark brown hair, were probably barely noticeable. But of course, it doesn’t feel that way to the person wearing the religious head covering in an environment in which no one else does (in this case, a clothing store), especially to a self-conscious teen. Which is to say that what happened to a Muslim teenager named Samantha Elauf would almost certainly never happen to me in the same situation. And what happened to Samantha Elauf appears to be blatant religious discrimination.

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As a teenager applying for a job at The Gap, I wore my yarmulke to the interview. There were no questions about my head covering, and I got the job. I can’t imagine the kippah violated a store dress code (though I don’t think I checked before applying), and I had a tendency to wear black knitted kippot which, atop a head of dark brown hair, were probably barely noticeable. But of course, it doesn’t feel that way to the person wearing the religious head covering in an environment in which no one else does (in this case, a clothing store), especially to a self-conscious teen. Which is to say that what happened to a Muslim teenager named Samantha Elauf would almost certainly never happen to me in the same situation. And what happened to Samantha Elauf appears to be blatant religious discrimination.

Elauf’s case is before the Supreme Court, which heard oral arguments on the issue last week. The story is this, neatly explained by the Atlantic: When Elauf was 17, she applied for a job at an Abercrombie Kids shop in Tulsa, Oklahoma. She wore her headscarf to the interview. The hiring manager understood the headscarf violated the company’s dress policy, but realizing that it was probably religious, she asked the district manager if an exception could be made. The answer was no; Elauf was turned down.

It was unjust, and it probably was a bit mortifying for teenager seeking to blend in, or at least attain a measure of acceptance, in a mainstream American clothing store. And the Equal Employment Opportunity Commission thought it was illegal, and filed a discrimination suit. After all, employment law requires religious accommodation unless it will create “undue hardship” on the business. But it’s apparently not so simple.

In what sounds like a parody of a Talmudic dispute, the case is before the Supreme Court because, according to the Atlantic, “the Tenth Circuit Court of Appeals ruled that correctly assuming that Elauf’s headscarf was religious is not the same as actually knowing her headscarf was religious.”

Over at SCOTUSblog, Amy Howe explains how the Supreme Court justices, during oral arguments, got tripped up by the fact that Elauf did not ask for a religious exemption; it was clear she needed some exemption, and the reason for it was assumed, and she was denied the exemption. Thus did the justices dive down the rabbit hole over the very meaning of knowledge:

Justice Antonin Scalia was, to put it mildly, dubious about how “straightforward” the government’s test actually is.  He pressed Gershengorn to explain the difference between “knowing” something and “correctly understanding” it; when Gershengorn tried to elaborate, Scalia told him that “that doesn’t make any sense to me.”

And although Justice Anthony Kennedy suggested that there was “substantial force” to the government’s argument that an applicant doesn’t have to take the initiative to mention the religious practice to a would-be employer, he emphasized that the government’s reliance on the word “understand” rather than “know” was “confusing.

Even Justice Elena Kagan – whose vote we would expect the government to need to prevail – expressed some skepticism about how the government’s rule would apply.  If an employer doesn’t have to be certain that a job applicant’s practice derives from her religion, she asked, what level of confidence does it need?  Would it be enough for an employer to be two-thirds certain that a potential conflict with its work rules is the result of the applicant’s religious practices?  What about fifty-percent certainty, she queried?

Justices Sotomayor and Alito broached similar versions of a compromise, in which the employer would mention a rule and ask if the applicant could abide, something like: “We have a no-head covering rule. Could you comply?”

And that could work–for headscarves. Or beards, another one of the possibilities offered by the justices. Howe says several justices, “perhaps enough to form a majority,” sounded like they approved of the compromise. But there are two obvious problems with it that the Court really ought not ignore.

The first is scope: According to Howe, Scalia asked a question along the lines of: “what if an applicant could comply, but it would make her uncomfortable?” Maybe he’s talking about modesty, which would certainly force the employer to wade into various scriptural interpretations.

A more pressing problem is Chief Justice Roberts’s objection: such a rule would not “cover anything that’s not readily apparent.” The other justices didn’t seem to be so bothered by this, but I think it’s a fatal flaw in the compromise. You could argue, I suppose, that if you don’t notice it then it’s probably not a violation of a dress code. But that might also depend on the store.

It seems to me common sense needs to play a role here. If a manager guesses correctly that certain garb is religious, we don’t need to split hairs over whether they actually “know.” What happened here in this case is that a manager took a look at teenage girl wearing a headscarf, understood it was because she was a devout Muslim, and denied her the job because of it.

The Atlantic quotes an attorney for the district manager as paraphrasing his argument this way: “if we allow this then someone will paint themselves green and call it a religion.” I don’t know if anything sums up the current trend in the culture wars better than employers worrying that making accommodations will lead to lots and lots of religious freedom.

And the slippery slope argument fails here just as it did in the Hobby Lobby case, in which the Court ruled that the government could not force the company’s owners to pay for contraceptives and abortifacients to which they had religious objections. Although the standard there was slightly different, the truth is in this case there is no blanket religious protection: if it causes “undue hardship” to the company, the exemption can be denied.

Maybe the green man of the attorney’s construction would hurt the business, maybe not. But Elauf’s adherence to her religious practice was apparent and would not have wrecked the company’s bottom line. It was rank religious discrimination, and no quibbling over degrees of certainty can change that.

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Gerrymandering: an American Perversion of Democracy

Everyone is waiting for Wednesday’s Supreme Court argument regarding King v. Burwell and whether the phrase in the Affordable Care Act, “established by the states,” means what it plainly says. It’s the most important case on the Court’s docket this term because if the Court rules against the administration, ObamaCare will probably become financially untenable and so crash and burn, quite possibly taking the Obama presidency with it
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Everyone is waiting for Wednesday’s Supreme Court argument regarding King v. Burwell and whether the phrase in the Affordable Care Act, “established by the states,” means what it plainly says. It’s the most important case on the Court’s docket this term because if the Court rules against the administration, ObamaCare will probably become financially untenable and so crash and burn, quite possibly taking the Obama presidency with it
But there is an important case being argued tomorrow morning, Arizona State Legislature v. Arizona Independent Redistricting Commission, that could adversely impact the movement to eliminate gerrymandering from American politics. It should be paid attention to.

Gerrymandering is named after Governor Elbridge Gerry of Massachusetts, who came up with the idea (although his name is pronounced with a hard G and the eponymous—and nefarious—practice he invented is pronounced with a soft one). It involves the setting of legislative district lines—whether state or federal—so as to give one party or the other partisan advantage. As someone described it, democracy is where the voters choose their representatives. Gerrymandering is where the representatives choose their voters. It is a wholly American perversion of democracy, unknown elsewhere in the English-speaking world.

The Court has always declined to flatly outlaw gerrymandering, although many people (myself included) think that it violates the 14th Amendment’s equal protection clause. After all, if you’re a Democrat living in a district carefully designed to return a Republican legislator, you are effectively disenfranchised. Your vote is worthless. That’s why Baker v. Carr (1962) rewrote the Court’s doctrine on “political questions” in order to require “one man, one vote.”

In 2002, Arizona voters in a public referendum took away the hopelessly self-interested state legislature’s power to draw district lines and established an independent commission to do it instead. The Arizona legislature sued, claiming that because the Constitution (Article I, Section 4) says that “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; . . .” only the state legislature has the right to set district lines. A special three-judge district court ruled (2-1) in the commission’s favor and the legislature appealed to the Supreme Court.

There is a standing issue, but if the state legislature survives that and the Court gets to the merits, George Will thinks the Court should give the state of Arizona a lesson in remedial reading. He accepts as self-evident the legislature’s argument that the “Manner of holding elections” includes setting district lines. To me, it means nothing more than deciding how the vote should be taken: paper ballots, machines, online voting, early voting, a raising of hands, etc.

Other states, including California, have been moving in this direction, especially as computers have made it possible to draw district lines with exquisite precision, even house by house, and so make more and more districts uncompetitive.

This also makes American politics more extreme. One of the reasons the center of American politics has largely emptied out in recent decades (although not the only one) is that as general elections have become less and less determinative, primaries have become more so. In primaries, the left in Democratic races and the right in Republican ones exert much more influence, pulling candidates one way or another. Indeed the word primary has recently become a verb, as in “If Congressman Snoot doesn’t vote this way on the widget bill, he’ll probably be primaried.”

Gerrymandering does not belong in the world’s oldest democracy.

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RE: ObamaCare Lies and Democracy

Jonathan’s post details how the advocates of ObamaCare hid the truth behind a bodyguard of lies (to use Churchill’s marvelous phrase) in order to fool the people and get the bill passed. No wonder it has been deeply unpopular from the beginning.

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Jonathan’s post details how the advocates of ObamaCare hid the truth behind a bodyguard of lies (to use Churchill’s marvelous phrase) in order to fool the people and get the bill passed. No wonder it has been deeply unpopular from the beginning.

This is not how democracy (from the Greek demos, meaning people, and kratos, meaning power) is supposed to work. But modern-day liberals and progressives (like those who run “people’s republics”) have never been in favor of people power. They want power to be exercised by fiduciaries for the people, which is to say themselves. They regard the common man as too stupid to know what is good for him. In explaining his now regretted remarks, Jonathan Gruber defended himself by saying they were off-the-cuff remarks made at an academic conference. Translation: The peasants weren’t supposed to have heard them. And he could only bring himself to say that the remarks had been “inappropriate,” not that they were incorrect.

He then proceeded to tell another lie in hopes of duping the people (and a Supreme Court justice or two) again. He repeatedly referred to the phrase in the law saying that subsidies could only be given to those who purchased insurance on the exchanges created by states as a “typo.” Well, thanks to Power Line here’s the text of the law:

The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—

(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act…. [emphasis added]

That sure doesn’t look like a typo to me. And it didn’t look like one to Gruber either until it became convenient for it to be one. As I pointed out the day before yesterday, Gruber himself, in 2012, stated that the whole purpose of that phrase was to coerce states into establishing exchanges so as not to deprive their citizens of subsidies.

At the heart of all the isms of the left lies a profound contempt for the common man. The reason is not hard to discern. Those isms were all created by intellectuals and there is no snob like an intellectual snob. Just ask Jonathan Gruber.

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Zivotofsky May Be a 5-4 Decision

From the transcript of yesterday’s oral argument, one can pretty much predict how the Supreme Court justices will rule in Zivotofsky, on the law giving Jerusalem-born Americans the right–if they request it–to have their passports show their place of birth as “Israel.” The four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) seemed prepared to hold that the law improperly impinges on the president’s “recognition” authority; the four conservative Justices (Roberts, Scalia, Thomas, and Alito) seem prepared to hold it does not; and the case will likely be decided by Justice Kennedy’s vote. His position seems reflected in the question he apparently had carefully prepared, and which he asked Zivotofsky’s counsel (Alyza L. Lewin) before she had even completed the second sentence of her argument:

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From the transcript of yesterday’s oral argument, one can pretty much predict how the Supreme Court justices will rule in Zivotofsky, on the law giving Jerusalem-born Americans the right–if they request it–to have their passports show their place of birth as “Israel.” The four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) seemed prepared to hold that the law improperly impinges on the president’s “recognition” authority; the four conservative Justices (Roberts, Scalia, Thomas, and Alito) seem prepared to hold it does not; and the case will likely be decided by Justice Kennedy’s vote. His position seems reflected in the question he apparently had carefully prepared, and which he asked Zivotofsky’s counsel (Alyza L. Lewin) before she had even completed the second sentence of her argument:

JUSTICE KENNEDY: Suppose that – suppose that the President and the Secretary of State put on the passport place of birth – I’ve written it out – the place of birth on this Jerusalem-born citizen’s passport has been listed as Israel at the holder’s request. The designation is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel. Could the president, under existing statute, and the Secretary of State, under existing statute, put that statement on the passport?

MS. LEWIN: Yes, Your Honor, they could put that statement on the passport. [Transcript at pp. 3-4].

Justice Kennedy made the same point when Solicitor General Donald B. Verrilli Jr. argued that showing “Israel” on Zivotofsky’s passport would “communicate a message that contradicts the official recognition position of the United States”:

JUSTICE KENNEDY: But why couldn’t you have a disclaimer of the kind that I’ve explained to the Petitioner’s counsel. She said that would be perfectly lawful, for you to say it’s not the position of the State Department, this is not an indication that Israel is – has jurisdiction over Jerusalem. … Why wouldn’t that solve the problem? [Transcript at p. 28].

Later in the argument, after the solicitor general acknowledged that Congress has the authority to regulate passports, but asserted that Congress “can’t use that authority to command the Executive Branch to issue diplomatic communication that contradicts the government’s official position on recognition,” Justice Kennedy made his point a third time:

JUSTICE KENNEDY: I don’t – I don’t like to, you know, just keep going back to the same thing. It seems to me that you could draft a statement that actually furthers your position. “This passport does not indicate that the government of the United States and the Secretary of State recognized that Israel has sovereign jurisdiction over [Jerusalem],” and you’d actually be making your case. [Transcript at pp. 42-43].

In other words, the administration could do the same thing President Clinton did when Congress enacted a law in 1994 allowing Americans born in Taiwan, if they requested, to have their passports show their place of birth as “Taiwan,” rather than “China.”

President Clinton complied with the law but issued a statement that it did not affect the U.S. “one China” policy. Zivotofsky’s case is even easier: in the Taiwan situation, anyone looking at the passport would know the State Department had permitted the holder to substitute “Taiwan” for “China”; the law regarding Jerusalem provides only that “Israel” would appear in the requesting person’s passport–not “Jerusalem, Israel.” As Justice Scalia pointed out, no one looking at the passport would even know what city the holder was born in.

Courts generally strive to avoid holding a law unconstitutional, and try instead to “harmonize” the parties’ positions. The Court could hold that where (1) the petitioner does not assert that putting “Israel” in his passport constitutes an official recognition of Israeli sovereignty over Jerusalem; (2) the law permits the president, if he wants, to put a statement on the passport stating that it is not such a recognition; and (3) the statement is not even necessary: since the passport of a requesting citizen will include no reference to “Jerusalem” at all, the law does not constitute such a recognition and thus does not improperly impinge on presidential authority. The oral argument and Justice Kennedy’s questions indicate this may be where the Court will end up.

Such a resolution would mean that Congress would keep its statute, Zivotofsky would get his passport, and the president would retain his recognition authority. It may turn out, in other words, that there was no reason for the administration to make a federal case out of Jerusalem, much less scrub the White House websites.

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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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