Happy Birthday to Warren Beatty, 75.
First things first: I didn't get around to the Elsewhere post yesterday. At Post Partisan, I argued that it's okay for the press to say that Romney has won the nomination; at Plum Line I noticed that Barack Obama's approval ratings had moved to right-side-up in Pollster's trend line. I should note: Unfortunately for that post, since I wrote it there was a new YouGov poll that stunk for the White House, which pushed the trend line back below water (and, the way it works, means it never escaped in the first place). Bigger point in my post: the best polling clues about November right now are still Obama's approval ratings, not how Mitt Romney is doing.
And now that I've taken care of that, on to the good stuff:
1. Robert Mackey in the NYT gives a long, must-read summary of conservative attacks on Trayvon Martin. I think he could have done a bit more to point out that some mainstream (and dissident) conservatives have not participated, but it's a good piece.
2. Alan Abramowitz gives the current results of his congressional election predictor. Mostly good news for the GOP.
3. "There have been no Republican votes for a budget compromise since 1991." Brad DeLong, explaining the truth about budget negotiations.
4. Matthew Dickinson figures that the Court will break along partisan lines -- and argues that if so, there's nothing wrong with that. Jonathan Cohn has a more traditional perspective.
5. And I'm just going to repeat an item I used for the Plum Line roundup yesterday: Elspeth Reeve has very helpful advice for Victor Davis Hanson and anyone else struggling to understand what is actually very simple etiquette problem (try in good faith to call people by the name(s) they ask to be called; try hard in good faith to avoid calling people by the name(s) they ask you to avoid. Was that really very hard?). Oh, that was me, there, in the parentheses. Back to Reeve: make sure you read down to the bottom.
Thinking out loud about Trayvon Martin: We know from his girl friend that he was worried about the guy following him. If he had been armed and shot Zimmermann first, I have to assume that he could have used the same stand-your-ground legal defense that Zimmermann is using. If that's the case, does the law merely favor the one who shoots first? (Evidently, it doesn't cover breaking someone's nose.) Is the right to bear arms devolving into: only those who bear arms have rights? If so, what distinguishes the law from lawlessness?
ReplyDeleteI strongly suspect that Professor Dickinson is right about this. There has been a boomlet the last two or three days of "centrist" and "center/left" types attempting to lobby the Chief Justice in their articles. Jeffrey Rosen did so quite explicitly at POLITICO, while William Galston took a (very slightly) more subtle stab at it at TNR. Even David Frum has gotten into the act in a tacit, back-handed way. Their message is something like "Chief Justice Roberts, you say you want to uphold the institutional reputation of the court. If that is true, don't let the mandate be struck down by a 5-4 partisan split. It will confirm all the worst suspicions lingering from Bush v. Gore and Citizens United. Just don't go there."
ReplyDeleteI doubt that will bring about the result they desire. For one thing, I don't think the public pays much attention to the court, most of the time. The public has a vague sense that the court is there and generally seems to do a good job. Things that get the cognescenti outraged probably have little affect on the public's view of the court.
Now, this case may be an exception, being a high-profile situation. And the court did take hits from Citizens United (I'm not convinced about Bush v. Gore). But unlike Citizens United a 5-4 conservative victory striking down the mandate would likely sit well with the public. I support the ACA, but the public does not, and even a plurality of Democrats objects to the mandate. Striking it down would, I suspect, make the court more popular with the public, not less. That would be very bad policy, but we can't force the public, or the court, to see things the way we prefer. They are the horses you can't make drink, no matter how clear the water.
It is true that a 5-4 strike down would enrage Democrats and Liberals. But does the Chief Justice care? Should he even care? It isn't like he or the court majority is popular in those quarters, anyway. There would be political blow back, but once again does the Chief Justice care? After all, realistically all the Democrats can do is, over the long term, try to appoint liberals to the court. But they would do that in any case. If the Chief Justice believes he and the other conservatives are in the right, why would that prospect cause him to preserve the ACA?
What Galston and Rosen and Frum and others are really saying is "We have worked very hard to convince left/moderate opinion that it can trust the court to be reasonable and consistent and not to act in blatantly partisan ways. If you do this thing, you will make us look like fools in the eyes of that audience and set commity/bipartisanship/faith in the court (among the Center/Left) back spectacularly." But does the Chief Justice care? Should he care, especially if he believes he and the conservative are genuinely in the right?
I strongly suspect that the Chief Justice does not care. He probably does not see a 5-4 decision in this case as detracting from the dignity of the institution (except among people who don't hold it in high esteem, anyway) and does not see it as his mission in life to comfort and aid the moderate/left in their time of grief and disappointment.
Now, the Chief Justice may care about a point Galston raises. By striking down the ACA, particularly on 5-4 lines, he would be injecting the court into Presidential politics in the most flagrant way since 1937 and the decision over Social Security. That, it is true, probably does not bode well for the court over the long run. Then again, Obama is hardly an FDR, even allowing for the fact that 1937 was a very bad year for Roosevelt. By that I mean that Obama is, for all the improvement over the last few months, still a president of middling popularity presiding over a grumpy country in the midst of a horrible economic situation, with nothing like the institutional power and popular backing of FDR. Gutting the ACA would entail nothing like the risk of striking down the Social Security Act.
I really can not accept Dickinson's position that it is okay for the Supreme Court to break down on partisan lines. This only creates another veto point in a legislative system that is riddled with too many veto points and one that perpetual favors the conservatives. Republicans could routinely reverse any major policy victory by the Democratic Party by suing all the way to the Supreme Court and vice versa even though the latter is much more unlikely. How is any governing going to be done? How can major policy problems be solved if anti-government Republicans simply sue everything to a Conservative Supreme Court?
ReplyDeleteLee Ratner,
DeleteI also disagree with Professor Dickinson that it is okay for the justices to behave in a blatantly partisan fashion. However, in this particular case I suspect that Dickinson is right -- that is they will behave in such a way and they will largely get away with it.
Like I said in my post above, they are unfortunately given cover by the extreme unpopularity of the mandate. I just don't see there being much of an immediate downside to the court in a 5-4 partisan decision.
There is clearly downside to the country. Leaving aside the bad health care policy, if such a thing happens it will make the partisan wars that much harsher and that much more bitter. There probably will even be a downside for the court in the long run. Getting involved in presidential politics in such a brazen manner doesn't bode well for the institution over time. But not over the short-run. And I just don't see the possible long-term consequences as being enough to cause the kind of action from the Chief Justice that Galston, Rosen, Cohen et. al. want. I don't think the Chief Justice is being untruthful about his regard for the court's institutional standing, but I don't think such concerns are his only or even most important motivation. In this case those concerns probably won't lead him to abandon the conservative majority.
Then again, maybe these writers are right and the Chief Justice will place the long-term over the short. There are several ways he could do that -- if you will several ways to partially break with the conservative block. He might, as they wish, uphold the mandate on very narrow grounds -- in effect giving the Democrats and the Republicans both a victory (by upholding the Democratic law but narrowing it in such a way as to greatly inhibit the things Republicans find noxious). Or he could strike down the mandate in a narrow decision that explicitly allows for a national health care system structured another way (probably using the the taxing power and building on Medicare).
Maybe he will do something like that. But frankly, I wouldn't bet the mortgage money on it.
Oops. Meant "Galston, Rosen, COHN..."
DeleteI and other progressives will be busy ... if Republicans can break norms, so can we. There will be a grass-roots demand that will spill into this election: demanding that if Democrats want our votes and our ground-game, they have to promise an end to the filibuster and an immediate expansion of the Supreme Court to 11 justices.
ReplyDeletePR
DeleteI understand how you feel. But let us be realistic. The filibuster is unsustainable and so is the health care system. Agitating for filibuster reform and a federal health care system based on the taxing power is probably a winning strategy in the long run. So is a strategy of demanding that presidential candidates support these goals and nominate supportive judges. Lots can be accomplished that people regard as impossible (just look at Obama, if you doubt that). But an FDR style attempt to punish the current court would be an epic distraction that would only waste resources.
not to carry this too far, I didn't think that this would be a suggestion that would actually lead to legislation ... yet nevertheless it is time for our side to set about "shifting the political center" back to, well, the center for a start. It's partially because liberals are too unenthusiastic about any idea that is not assured of success beforehand, that we've found "the center" now shifted far to the right.
DeleteWhen the Supreme Court destroys all norms of "a government of laws, not a government of men" by raw political bias and gross ordinary corruption (Virginia and Clarence Thomas), it is time for us to start making this kind of demand in public and private to our congresscritters and candidates, let them know that the ground is burning out here, and that the half-measures of the past can no longer be tolerated. If the Supreme Court understood that there was a raging populist wave ready to punish them, their behavior might begin to change even without a formal legislative effort to punish them.