Trump And Ryan-- The Destroyers Of Regulations That Protect Americans From Greed And Avarice

Did anyone ever really believe Trump's idiotic campaign promises to drain the swamp that he personifies or hold Wall Street-- which now runs his regime-- accountable? If so... how tragic! Late Tuesday evening Trump had Mike Pence break the 50-50 tie in the Senate that will now allow banks more leeway to prey on their customers without fear of sanctions. That it even got to a point where the GOP-controlled Senate needed a tie-breaking vote from Pence was strange. And it wasn't because McCain, Flake or Corker, who had spent the day warning about the existential threat of Trumpism to America had decided to stop rubber-stamping his agenda-- they all voted with him as usual-- or because "the moderates" like Murkowski and Collins had decided to represent their incumbents back in Alaska and Maine instead of their campaign donors on Wall Street. No it was because ex-Democrat John Neely Kennedy (R-LA) and flitty Lindsey Graham (R-SC) crossed the aisle and voted with all the Democrats against the GOP proposal.

Maddow's blogger, Steve Benen, pointed out that "it’s easy to forget that there were voters last year who helped elect Donald Trump and a Republican Congress because they were concerned that Hillary Clinton might not be tough enough on Wall Street. As regular readers may recall, Trump swore up and down for months that it was Clinton who’d do Wall Street’s bidding, while Americans could expect his administration to stand up to the finance industry and its lobbyists. Though millions of voters actually believed all of this, the claims appear quite ridiculous now." It appeared quote ridiculous then as well. A new poll from Morning Consult shows that 53% of voters say Trump is not trustworthy; only 33% of voters think he is. 51% say he's dishonest and only 35% disagree. Yesterday Ipsos released a new poll through Reuters indicating that less than a third of Americans agree with the Trump-Ryan tax proposals.

As the 2018 midterm congressional election campaigns grow nearer, the poll found that more than two-thirds of registered voters said reducing the U.S. federal budget deficit is more important than cutting taxes for the wealthy or for corporations.

Trump’s plan would balloon the deficit and add to the $20 trillion national debt, according to critics and independent analysts, but Republicans say the tax cuts proposed in the plan would be offset by economic growth that would generate new tax revenue.

Among Republicans surveyed, 63 percent said deficit reduction should take priority over tax cuts for corporations, while 75 percent said deficit reduction should take priority over tax cuts for the wealthy.

But Trump and his rubber-stamp Republican Congress is moving ahead in reshaping the financial environment anyway, part of which was the successful vote Tuesday night neutering the Consumer Financial Protection Bureau. Benen summed up the vote by writing that he had "naively thought Republicans would want to avoid being seen doing Equifax’s bidding so soon after last month’s controversy. Evidently, the party doesn’t care."

Ian Millhiser put it like this: "Tuesday night, as many Americans were preparing to go to bed, an evenly divided Senate voted to give broad lawsuit immunity to credit card companies, auto lenders, credit reporting companies like Equifax, and many other financial firms. The 50-50 tie in the Senate was broken by Vice President Mike Pence (R), and the House approved the lawsuit immunity measure. President Trump is expected to sign it. The resolution passed by the Senate overrides a rule created by the Consumer Financial Protection Bureau (CFPB), which prevents many financial firms from engaging in two abusive practices. The rule prohibited much of the financial industry from using “forced arbitration” agreements-- a common tactic where a company refuses to do business with consumers who will not sign away their right to sue the company in a real court. Consumers who sign away their right to sue must resolve any disputes with the company in a privatized arbitration system that favors corporate parties. Additionally, the CFPB rule prohibited credit card companies and many other financial firms from requiring consumers to sign away their right to bring class action lawsuits, a form of litigation that ensures that companies that charge certain illegal fees to consumers face a consequence for their actions."

The progressive Blue America-endorsed Democrat running in Indiana's flippable 9th district, Dan Canon, is an attorney who fights against this kind of regulatory capture that puts consumers at legal disadvantage and at the mercy of DC-connected corporate power. "This is yet another transparent sellout of the working class to the financial industry," he told us this morning. "There is simply no such thing as frivolous class-action litigation of consumer claims. The courts are the only place where citizens can be an even remotely equal footing with big business. Congressional Republicans and their donors know that, so they've been working to restrict meaningful access to the courts for American consumers for decades. This is just another step toward the Trump/GOP agenda of total corporate supremacy."

I was discussing the vote with the progressive Democrat running for the Maine second district seat held by Wall Street puppet Bruce Poliquin-- who takes bankster bribery bucks while sitting on the House Financial Services Committee-- and he pointed me to something he had written last month when the Republican plan was just being debated in the committee. "Earlier this month," he wrote, "the Credit reporting company Equifax announced a data breach that exposed the credit information for 143 million Americans, including Social Security numbers, birthdates and home addresses." And then he went after Poliquin and his cronies in Washington:

Equifax discovered the hack in July but waited more than a month to make news of the breach public. In response the company offered free credit monitoring services for one year, but the offer came with fine print that would have resulted in consumers who accepted the services giving away their ancient right to a trial in court by a jury of peers.

This term buried in the fine print is called an arbitration clause. Usually when we click a box to agree to terms of service, we are agreeing that any disputes will be taken to an arbitrator instead of a court on an individual basis, and we cannot band together with other victims to bring in a class action. But it can cost thousands of dollars to hire a lawyer to bring a claim to arbitration, so it never makes sense when a corporation rips us off by a few dollars here or there.

Without the threat that they will have to face a jury, corporations have every profit-making incentive to cut corners and take risks. Why invest in data security if nobody is going to hold you accountable for a breach? Only when corporations know that consumers can band together to enforce their rights, will they act as responsible stewards or our information.

We need to ban compulsory arbitration in these form contracts, but Bruce Poliquin is doing everything he can to protect the corporations. In June of this year, Bruce Poliquin voted for HR 10, which would block the Consumer Financial Protection Bureau (CFPB) from finalizing a rule to prohibit credit card, bank account, and other financial contracts from having fine print forced arbitration clauses with class action bans.

On the day that the Equifax data breach was made public, the House Financial Services Committee, on which Bruce Poliquin serves, considered a bill to cap statutory damages in lawsuits against credit-reporting companies at $500,000, and entirely prohibit punitive damages.

Bruce Poliquin’s support of the financial sector at the expense of his constituents is yet another example of how he continues to fail to represent the people of Maine’s Second Congressional District... He should be working to protect everyday people from data breaches and ensure they are fairly compensated when they fall victim. Instead, he’s working to limit the damages and fall out for the institutions that allow the breaches to happen. That’s unacceptable to me and in Congress I promise to protect people’s right to a day in court against banks and corporations like Equifax that fail to protect consumers’ sensitive information.

And he's been fighting with Poliquin about it ever since. The Sun Journal has called it a "hot campaign issue." While Poliquin puts all his energy into collecting bribes from Wall Street and smearing Jared as "a liberal," Jared was explaining to the media how Poliquin puts the desires of the country’s financial sector ahead of his constituents including the vote "to allow financial firms to force their customers into arbitration instead of allowing them to file lawsuits against firms such as Equifax... Golden, who is the assistant majority leader in the state House, said Poliquin'should be working to protect everyday people from data breaches and ensure they are fairly compensated when they fall victim. Instead, he’s working to limit the damages and fallout for the institutions that allow the breaches to happen.'"

Holding Senators Accountable For Bad Votes-- Like Confirming Neil Gorsuch To The Supreme Court

Gorsuch throws a gang sign: "thin the herd"

What do you think-- should senators be considered responsible-- by voters-- for the actions of Supreme Court judges they vote to confirm? I've always thought so. There were 3 Democrats-- Joe Donnelly (D-IN), Heidi Heitkamp (D-ND) and Joe Manchin (D-WV) who voted to confirm Neil Gorsuch and a 4th, Michael Bennet (D-CO) , who voted with the Republicans procedurally to enable the confirmation. Donnelly, Heitkamp and Manchin are all up for reelection next year-- and in states which Trump won by big majorities-- 56.82% to 37.91% in Indiana, 62.96% to 27.23% in North Dakota and 68.50% to 26.43% in West Virginia. The electoral calculus by each senator was that they had more to lose by voting NO than to gain by voting YES, knowing Democrats in their states would be likely to ignore the bad vote for the Gorsuch-- as well, in each case, bad vote after bad vote all year.

And no one can claim they weren't warned about how bad Gorsuch was likely to be on the Court. There wasn't a good government group in the country that wasn't sounding the alarm. Ian Millhiser, the Justice Editor for Think Progress was especially outspoken and especially dire in his predictions. Over the weekend, he wrote an I told you so piece. The carefully choreographed and intentionally deceptive hearings didn't indicate the Gorsuch would likely be the worst justice on the Court-- but you had to be deaf, dumb and blind to have missed that during the process. Today, writes Millhiser, "Gorsuch is disrespectful of precedent and eager to move the law very far, very fast. His agenda is both well-thought out and extraordinarily conservative. When the Court splits into its old factions, with Justice Clarence Thomas staking out a position that no other member of the Court will sign onto, Gorsuch embraces Thomas’ view. Gorsuch spent the last day of the Court’s just-concluded term, moreover, laying out a vision that will make culture warriors bounce with glee. His ascension to the Supreme Court was the culmination of an effort to protect religious conservatives by any means necessary. And, if Gorsuch gets his way, some very basic civil rights will bow to the Christian right."

[Robert] George is probably the nation’s leading anti-LGBTQ scholar. A former chair of the National Organization for Marriage, which tried and failed to halt the spread of marriage equality in the United States, George was cited twice in a dissenting opinion by Justice Samuel Alito, which complained that the so-called Defense of Marriage Act was struck down.

George gushed about the Gorsuch nomination in an op-ed published by the Washington Post. “Gorsuch will be a hard man to depict as a ferocious partisan or an ideological judge,” George wrote of a man who tried to hobble a law protecting disabled children before he was unanimously rebuked by his eight new colleagues.

Yet, in a straightforward admission that George knew what he stood to gain from a Gorsuch confirmation, the professor also wrote that, on “abortion, same-sex marriage, gun control, campaign finance reform and religious freedom,” Gorsuch was likely to vote “pretty much the same way Scalia did.”

Indeed, if Neil Gorsuch gets his way, the hundreds of defiant conservative leaders who signed George’s Manhattan Declaration will be given broad discretion to defy the law by the Supreme Court itself.

Echoing religious conservatives who sought the right to deny birth control coverage to their employees, Gorsuch wrote as a lower court judge in the original Hobby Lobby litigation that “all of us face the problem of complicity,” and “all of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

Hobby Lobby set off a doctrinal earthquake when it reached the Supreme Court, holding, for the first time, that a religious objection can be wielded to limit the rights of a third party. And now, with Gorsuch occupying a seat on the Supreme Court, the Court is preparing to hear a case that could grant the Christian right a license to engage in straight up discrimination.

Gorsuch, moreover, has already telegraphed how he will vote in this case.

Last Monday was a big day for Neil Gorsuch--  and not a hopeful day for anyone who believes that LGBTQ people are fully human and entitled to the same rights as everyone else. Gorsuch revealed himself as a hardline conservative on marriage equality and called for a broad expansion of Hobby Lobby. And he did so on the very same morning that the Court announced that it would decide whether religion is a license to discriminate.

The marriage equality case involved an Arkansas law providing that a mother’s husband will automatically be listed on a birth certificate as the child’s father, even in many cases where the husband is not the biological father, but that did not afford similar treatment to same-sex couples. Such a rule, a majority of the Supreme Court explained, violates the Court’s holding in Obergefell v. Hodges that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’”

Gorsuch disagreed, pointing to the state’s arguments “that rational reasons exist for a biology based birth registration regime.” Never mind, of course, that Arkansas did not have a “biology based birth registration regime,” as it often listed non-biological parents on birth certificates so long as that parent is a man married to a woman.

The conservative jurist’s use of the word “rational” here is also highly significant, as it offers a window into how Gorsuch views discrimination on the basis of sexual orientation generally. The lowest level of scrutiny the Court applies in constitutional discrimination cases-- the level it typically applies to allegations it views as dubious-- is known as “rational basis,” and it provides that the government is free to do whatever it wants so long as it can articulate a rational reason for doing so.

So when Gorsuch defended Arkansas’s law by pointing to allegedly “rational reasons” for it to exist, he suggested that discrimination based on sexual orientation isn’t something the courts should worry themselves about.

It's another factor that needs to go into calculations for voters when they decide in 17 months whether or not to vote for Donnelly, Heitkamp and Manchin. In Manchin's case, there's also a primary, which, for a progressive, should be a no brainer. There's no chance the progressive Berniecrat running against him, Paula Jean Swearengin, would have ever voted to confirm Gorsuch-- or voted to have confirmed Scott Pruitt as head of the EPA, as Manchin (and Heitkamp) did.

We're stuck with Gorsuch for life-- voters can-- and should-- remove Manchin

CBO-- A Bigger Thumbs Down For Ryan's TrumpCare Bill Than Anyone Thought

Here's the whole CBO report on Ryan's Trumpcare proposal. The way Ryan, Pence and Price wrote the bill, 14 million people would lose their health insurance immediately and then coverage would be reduced by 21 million in 2020 and down by 24 million in 2026. Oddly enough, a White House internal analysis is even worse on Ryan's proposal! Trump's own people predict 26,000,000 people will lose insurance during the next decade, 2 million more than what the more cautious CBO reported! Not even Trump voters, whose fault, after all, this is deserve the horrible fate the Republicans have in mind for them. The Washington Post report emphasized that "14 million fewer people would have health insurance next year alone. Premiums would be 15 percent to 20 percent higher in the first year compared with the Affordable Care Act and 10 percent lower on average after 2026. By and large, older Americans would pay 'substantially' more and younger Americans less, the report said. The report from the Congressional Budget Office fueled concerns that the GOP health-care plan would prompt a dramatic loss in health-insurance coverage, potentially contradicting President Trump’s vow that health-care reform would provide 'insurance for everybody' and threatening support from moderate Republican lawmakers."

Ian Millhiser, was much tougher on the Republican bill, writing for ThinkProgress that "approximately 17,000 people could die in 2018 who otherwise would have lived if a House Republican health proposal endorsed by the Trump administration becomes law. By 2026, the number of people killed by Trumpcare could grow to approximately 29,000 in that year alone."

Even though the new head of the CBO, Keith Hall, was handpicked by Paul Ryan and celebrated by HHS Secretary Price who said he would bring an "impressive level of economic expertise and experience," he was ready to slam their report even before it was given. He told White House reporters that the Regime "disagrees strenuously with the report that was put out" and argued that their report looked "at a portion of our plan, but not the entire plan... We believe that our plan will cover more individuals at a lower cost and give them the choices that they want for the coverage that they want for themselves and their family, not that the government forces them to buy." When a reporter asked him to concede that without that mandate to buy coverage, there will be millions of uninsured, he snarled, "No, I wouldn’t concede that at all. The fact of the matter is they are going to be able to a coverage policy that they want for themselves and for their family. They are going to have the kind of choices that they want… So we think that CBO simply has it wrong."

Progressives generally felt that the CBO's report-- on top of the opposition from the American Medical Association, the American Hospital Association, AARP and from a solid majority of voters-- signals a death knell for Ryan's bill. One congressmember who requested anonymity said that "Price and Ryan are both full of shit. They've been hanging around Trump and Kellyanne too much and forgot about the rigors of reality."

Mark Pocan, who represents the Madison area in Congress said that "The CBO report proves what we already knew-- millions of Americans will lose coverage under Speaker Paul Ryan and President Trump’s plan to repeal the Affordable Care Act. To make matters worse, out of pocket costs will rise especially for older and low-income Americans. At the end of the day, this plan means millions of hard-working Americans will lose coverage while the wealthiest few get a massive tax cut. So much for Trump’s boast to provide 'insurance for everybody,' The CBO report confirms yet another broken promise by President Trump and Republicans in Congress."

Ruben Kihuen, a freshman representing North Las Vegas expressed similar sentiments. "The Republican proposal is just a massive tax cut for the wealthy disguised as healthcare reform. This so-called 'plan' is a direct attack on older Americans, effectively placing a heavy tax on getting older. Republicans should be working to improve on the Affordable Care Act to make health insurance cheaper and more robust for everyone."

Congresswoman Carol Shea-Porter talked with her constituents in New Hampshire and found a lot of disagreement with the GOP plan. "Today’s estimate by the independent Congressional Budget Office that 14 million Americans would lose their insurance next year under the Republican health plan should be the nail in the coffin for this draconian proposal, which would not only take away Americans’ insurance but also slash Medicaid, end Medicaid expansion, roll back requirements that insurance cover basic medical services, increase deductibles, and raise premiums for older Americans-- all while slashing taxes for the wealthiest. According to CBO, 24 million people would lose their coverage by 2026, meaning the Republican plan not only erases the gains we’ve made since the Affordable Care Act but would actually leave fewer people with coverage than before the law passed. Now that the Republican health bill’s devastating impact has been laid out in black and white, it’s time for President Trump and Congressional Republicans to join the American people and the health care industry in rejecting this harmful bill, and instead come to the table to find bipartisan solutions that make our health care system work better for everyone."

Pramila Jayapal (Seattle) didn't mince words. "The CBO report," she said, "shows the Republican bill is nothing more than a dangerous ideological wish list that strips 24 million Americans of health care, raises premiums by more than fifteen percent, makes our seniors pay more, and guts Medicaid by almost $1 trillion. All of this in order to give $600 billion in tax cuts to corporations and the wealthiest amongst us. Americans will pay more for health care and get less coverage. This will be life and death-- literally-- for millions of Americans. This plan is simply not a plan. Republicans who truly care about their constituents will vote no to ripping apart our health care system and leaving millions of families without insurance."

Blue America is in the middle of vetting two new congressional candidates now, Houston cancer specialist Dr. Jason Westin and Katie Hill, an executive of a non-profit that helps veterans find affordable housing, who are, respectively, running against Republican anti-health care backbench conservatives John Culberson (TX-07) and Steve Knight (CA-25). I reached out to both of them for a perspective on the meaning of the CBO report yesterday. First Dr. Westin:

The CBO report analyzing TrumpCare is excellent news for two groups: those determined to shrink the federal government at any cost and the ultra-rich. For everyone else, the CBO analysis concludes that TrumpCare will be absolutely devastating.

The good news? The analysis projects a budget deficit reduction of $337 billion over the next decade. The bad news? How long do you have? The bill would reduce Medicaid funding by $880 billion dollars, or 25%. This drastic reduction would force states to cut services, resulting in fewer Americans receiving less effective care, hurting those most in need including kids, pregnant women, those near the poverty line, and seniors in long-term care. The CBO determined that a staggering 24 million Americans, or 1 out 14 of us, would lose insurance under TrumpCare, increasing the uninsured percentage from the current ~8%, the lowest ever recorded, to ~15%, an increase of 88%. Lastly, the CBO finds that Americans aged 50-64 will see premiums jump “substantially” due to the age tax allowing insurance companies to charge five times more than charged to younger enrollees.

If the non-partisan CBO determined TrumpCare is so very bad, why is it even being considered? Simply put: a massive tax cut of $900 billion over 10 years for the wealthiest Americans. Is there a connection between cutting critical services to create a colossal tax cut for the 1 percenters? The CBO analysis offers none. In short, 24 million Americans, our daughters, uncles, friends and neighbors, will lose their health insurance so that the very rich get even richer. TrumpCare is a reverse Robin Hood bill of the worst kind.

Katie Hill isn't a medical doctor but her concerns are very much those felt by people throughout the L.A. area. "In my community, as it is, far too many people still can't afford healthcare because the premiums are too expensive, deductibles too high, they barely make enough to make ends meet, and they don't qualify for Medicaid or a subsidy through the exchange. We are in a place when we need to be expanding coverage-- not cutting it. The Antelope Valley, a large portion of the district I hope to represent, has L.A. County's highest death rates from lung cancer, diabetes and heart disease, and a very high percentage of people who have only gained access to care because of the Medicaid expansion made possible by the ACA. Cutting that will take some of our poorest, most vulnerable neighbors out of preventative primary care and put them back into the emergency room as uninsured patients. More people will die, and ultimately, taxpayers will foot the bill no matter what. We need to continue to build on the progress made by the ACA. We can't afford to go backwards."

Will Next Tuesday Come Down To Whose Emails Shenanigans Were Worse? What Would Thomas Jefferson And James Madison Say?

First thing Monday morning the Democratic Coalition Against Trump announced they had filed a complaint against Jason Chaffetz (R-UT), the hyper-partisan head of the House Oversight Committee, with the Office of Congressional Ethics for his role in releasing information provided to him by FBI Director Comey. Their press released stated that "Chaffetz, in an ill-planned partisan attempt, released information that compromised the integrity of the FBI, when he irresponsibly tweeted out that the case investigating Secretary Clinton’s emails had been reopened, when in fact it had not been. Members of Congress are elected to make our country a safer, better place- not to use their power to work with leaders such as Comey in a partisan fashion. I hope that both are held accountable for their actions." Here's a copy of the complaint they sent to the Department of Justice. They also released a joint statement with former Bush White House counsel Richard Painter condemning Comey’s actions and asking for a swift investigation into the matter.

James Comey used his power as head of the FBI to attempt to influence a Presidential election. This is drastic violation of the Hatch Act that extends beyond party lines. When Comey was pressured by members of the United States House of Representatives to send a letter detailing the his investigation into Secretary Clinton’s emails, he should have known that the contents would be made public. The Members who released this letter placed partisan politics above the integrity of the FBI. We hope that investigations into Comey’s actions begin swiftly and are resolved with the same expediency.

“A confidential letter that nobody would release would not be a violation of the Hatch Act. The Members used Comey, and he let himself be used, and for that, his actions should be investigated,” said Richard Painter.

  “The criticisms of Comey's actions are coming from both sides of the aisle,” said Scott Dworkin, senior advisor to the Coalition, “at some point we have to take a step back and realize that that this goes above politics, above the Presidential election- this is about misuse of power by someone charged with the task of keeping our country safe. If we can't trust Comey to stay out of partisan politics, as all federal employees are required to do, how can we expect him to protect us?”

Also Monday morning, Ian Millhiser, writing for Think Progress explained the case for firing Comey. Hours after he inserted himself into the presidential race, I ran a quickie Twitter poll, asking what should be done about him. There wasn't much ambiguity:

"Comey," Millhiser wrote, "violated longstanding Justice Department protocol when he decided to disclose the very few facts that he actually did disclose in his letter to the Republican chairs. And we know that he wrote the letter over the explicit objections of Attorney General Loretta Lynch."

President Obama should fire James Comey. He should do so not because of the political consequences of Comey’s actions--  although those consequences could be quite severe--  but because Comey’s actions show an unacceptable disregard for the safeguards that exist to protect innocents from the awesome power of a federal police force.

The Justice Department, as former Deputy Attorneys General Jamie Gorelick and Larry Thompson explain in the Washington Post, operates “under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” Yet Comey gave unclear but highly damaging information to a major presidential candidate’s political enemies just eleven days before the 2016 election.

And he did so despite the fact that he has no idea whether there is any evidence that she did something wrong --  and despite the fact that his agents haven’t even begun to search for such evidence. It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.

Hillary Clinton is many things. She is a former first lady, a former senator, and a former secretary of state. It is more likely than not that she will also be the next president of the United States. But Clinton is also an American, and that means that she enjoys certain rights if the state attempts to bring its police power to bear against her.

The Bill of Rights spills more ink on the rights of people caught up in the criminal justice system than on any other topic. Police (or FBI agents, who are effectively federal police) cannot subject people to “unreasonable searches and seizures.” They cannot obtain a search warrant, except upon “probable cause.” And even then, the scope of the search must be limited and specified in the warrant.

After police clear these hurdles, criminal suspects still enjoy a panoply of other rights. They cannot be twice tried for the same crime by the same sovereign. They must be afforded a fair process. They must be granted a speedy trial, legal representation, and an impartial jury. Excessive bail may not imposed on criminal defendants, nor may “cruel and unusual punishments” be inflicted on the guilty.

The framers of our Constitution, in other words, were well aware of the dangers of an unchecked police force, and they made considerable efforts to rein in law enforcement. One of the most important of these checks is a constitutional system which requires police and prosecutors to clear a rising series of hurdles as they seek to impose more and more state power upon an individual.

...Imagine that you were applying for a job. Imagine now that, after a successful interview and glowing job references, you fully expected to receive a job offer in the coming weeks. Now imagine that, while you were awaiting that offer, the local police chief contacted the company you hoped to work for, and informed them that they were conducting some vague investigation into something you did in the past.

That’s what James Comey did to Hillary Clinton.

The cardinal rule of American criminal law is that no one may be punished--  or, in many cases, even subjected to a significant inconvenience--  without some reason to believe they are somehow engaged in wrongdoing. Comey broke that cardinal rule. And he did so despite the fact that, as far as he or anyone else knows, the FBI has no evidence whatsoever that Clinton engaged in wrongdoing.

...A congressional investigation into former FBI Director J. Edgar Hoover COINTELPRO revealed that the FBI targeted political dissidents with tactics that were “indisputably degrading to a free society.” The FBI “anonymously attack[ed] the political beliefs of targets in order to induce their employers to fire them.” It mailed “letters to the spouses of intelligence targets for the purpose of destroying their marriages.” It falsely labeled “as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack.” And it falsely informed a Chicago gang leader that the Black Panthers have “a hit out for you” in the hopes that the gang leader would “take retaliatory action.”

In one of the FBI’s darkest moments, it “mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.” This record, moreover, “was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide.”

There’s no indication that Comey engaged in misconduct approaching what happened under Director Hoover, and there’s no reason to think he had nefarious intent. In a letter to FBI employees, Comey said that he wrote the inflammatory letter to the Republican chairs because he felt “an obligation to do so given that I testified repeatedly in recent months that our investigation was completed” and that he also thought “it would be misleading to the American people were we not to supplement the record.”

But that does not change the fact that Comey violated longstanding policies that exist to protect both the rights of the accused and the integrity of America’s democracy.

An FBI director decides that the rules don’t apply to just this one case, because of the unusual level of public interest. An agent breaks into a home without a warrant because he doesn’t want to wait to catch a particularly nefarious criminal. A beat cop plants evidence on an especially dangerous criminal, because the public is better off with him off the street. All of these things may be done for good purposes, but the rules are there for a reason.

Law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line. The rules exist to keep good faith actors from becoming J. Edgar Hoover.

The irony of Comey’s bluster is that its highly political nature likely insulates him from consequence.

In the still-probable event that Clinton wins the presidential election, she cannot fire Come--  at least until the FBI concludes this latest phase of its examination of her emails--  lest she appear to be engaged in self-dealing.

That leaves President Obama, who no doubt does not want to be accused of protecting his chosen successor. He may also be worried about leaving a key vacancy that the dysfunctional Senate is unlikely to fill before the next president takes office. If that president is Clinton, there are obvious reasons why she should not appoint anyone to replace Comey until after the email investigation is concluded.

The FBI does have a clear contingency plan in place to deal with a long-term vacancy at the top. Deputy Director Andrew McCabe, a career FBI agent with about 20 years of experience, would assume Comey’s duties in his absence.

So, in removing Comey, President Obama can send a clear message that the rule of law depends on law enforcement agencies being bound by rules that apply to all cases. And the agency can continue its business without the awkward spectacle of Clinton choosing Comey’s successor before the agency completes its inquiry into the new emails.

This, admittedly, is not an ideal solution. McCabe’s wife ran as a Democrat for a seat in the Virginia state senate. Republicans will no doubt use that as an excuse to question the new acting director’s impartiality.

But we are in this mess, at last in part, because Comey felt an obligation to ward off attacks from Republican lawmakers by providing them with information he had no business making public before an election. It’s time to stop basing crucial decisions about what rules apply to law enforcement on an impossible desire to placate GOP partisans, and to start restoring confidence in the FBI.

And, speaking of e-mails, the Kurt Eichenwald-penned Newsweek cover story about Trump destroying subpoenaed e-mails is worth reading. "Trump, he wrote, "has a long, troubling history of destroying and hiding important documents in lawsuits, but he thinks Hillary Clinton’s the one who should be going to jail. Over the course of decades, Donald Trump’s companies have systematically destroyed or hidden thousands of emails, digital records and paper documents demanded in official proceedings, often in defiance of court orders. These tactics-- exposed by a Newsweek review of thousands of pages of court filings, judicial orders and affidavits from an array of court cases-- have enraged judges, prosecutors, opposing lawyers and the many ordinary citizens entangled in litigation with Trump. In each instance, Trump and entities he controlled also erected numerous hurdles that made lawsuits drag on for years, forcing courtroom opponents to spend huge sums of money in legal fees as they struggled-- sometimes in vain-- to obtain records."

And, of course, this Trump behavior, like all Trump beaver is part of a lifelong pattern of arrested developmental protectionism. "This behavior," wrote Eichenwald, "is of particular import given Trump’s frequent condemnations of Hillary Clinton, his Democratic opponent, for having deleted more than 30,000 emails from a server she used during her time as secretary of state. While Clinton and her lawyers have said all of those emails were personal, Trump has suggested repeatedly on the campaign trail that they were government documents Clinton was trying to hide and that destroying them constituted a crime. The allegation-- which the FBI concluded was not supported by any evidence-- is a crowd-pleaser at Trump rallies, often greeted by supporters chanting, 'Lock her up!'"

Eichenwald isn't just seeking to transmit "a sordid history lesson" with his revelations going back decades. "Rather," he concludes, "it helps explain his behavior since he declared his candidacy. He promised to turn over his tax returns and his health records-- just as he promised to comply with document discovery requirements in so many lawsuits-- then reneged. As a result, he has left a sparse evidentiary trail that can be used to assess his wealth, his qualifications for the presidency or even his fitness. Should voters choose him to be the next U.S. president, he will enter the Oval Office as a mystery, a man who has repeatedly flouted the rules. He has solemnly told the country to trust him while refusing to produce any records to prove whether he speaks the truth or has utter contempt for it."

Coming up at the Supreme Court: "The Revenge of the Conservatives"?

They're ba-a-ack!

by Ken

Are you ready for it, constitutional-law fans? Yes, it's Ian Millhiser's fall preview. "Next Monday," ThinkProgress's legal maven noted in his post this morning ("Everything You Need To Know About The Big Supreme Court Cases The Justices Will Hear This Term"),

the Supreme Court will gavel in its newest term and the justices will take the bench for the first time since last June, when the conservative Roberts Court handed down a string of uncharacteristically liberal decisions. This term, however, liberals will need to swim upstream, with the justices poised to consider a number of issues — unions, voting rights, race, and abortion — where the members of the Court’s conservative bloc have not often show a penchant of heterodoxy.

The latter link is to a July post of Ian's called, ominously, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," in which he ventured that "it is unlikely that liberals will feel the same way about the next Supreme Court term as they do about this recently completed one." He reminded us of his basic argument about last term, which left liberals "feeling pretty good": that "many of these outcomes most likely stem from conservative overreach -- litigants looking to disrupt progressive legislation brought long shot cases because they were encouraged by the Roberts Court’s record of conservatism and decided to 'press their luck.' "

Based on the cases the Court has already accepted for this term, and rumblings about other prospects, Ian doesn't see that happening again. In fact, trying to match the issues at hand with the Court's recent record, he's not optimistic at all.

For Ian's full thinking, check out the post. Here are the issues he's looking at:

• "Defunding Unions"

The issue is so-called "right to work" laws, under siege nationwide. But the case, Friedrichs v. California Teachers Association, deals not with them as such but as the workaround unions have used: "fair share" or "agency" fees, by which all those who benefit from unions' collective bargaining can be made to pay a share for the costs of it, whether they're union members are not, preventing them from getting a totally free ride on the dues payers' backs.

many Court-watchers believed that the justices would declare right-to-work laws mandatory in public sector unions in 2014’s Harris v. Quinn. At oral argument in that case, however, Justice Antonin Scalia expressed concerns that the plaintiffs’ legal theory, which seeks to subject workplace bargaining to First Amendment scrutiny, could create serious problems for government managers. In the end, Harris wound up imposing a right-to-work regime on home health care workers, but it left the rest of the public sector workforce unscathed.

The biggest question in Friedrichs, in other words, is whether the Court’s relatively modest holding in Harris is a sign that at least one of the Court’s conservatives does not want to go as far as the Friedrichs plaintiffs wish to take them, or whether these justices simply decided that it would be best to make a radical shift in America’s labor and First Amendment law incrementally through several decisions. In any event, it appears that the best hope of many unionized workers is Justice Scalia. That’s never a happy position for a worker to find themselves in.

• "Free House Seats For White People"

The case is Evenwel v. Abbott, "which seeks to shift congressional representation away from communities with large numbers of immigrants." You'll recall that the allotment of congressional districts to the states is based, per the 14th Amendment, not on the number of eligible voters but on "the whole number of persons in each state." But that doesn't necessarily mean, this suit argues, that the congressional districts should be divvied up based on the same consideration.

So Texas, which has a significant number of largely Latino non-citizens, receives extra representation in the House for these non-citizens, even though they cannot vote.

When Texas drew its district lines, it complied with one person, one vote by drawing districts that had roughly equal population — even though this meant that some of those districts (typically, the ones with fewer non-citizens) have more voters than others. The plaintiffs in Evenwel want the Supreme Court to require states to draw districts with equal numbers of voters, instead of residents — so non-citizens will no longer count for purposes determining district populations. As a practical matter, this would shift representation away from Democratic-leaning communities with large numbers of Latinos to other communities that are more likely to support Republicans.

If the Evenwel plaintiffs prevail, in other words, Texas will continue to get extra seats in Congress for its large non-citizen population, but white Republicans will play a disproportionate role in selecting who occupies those seats.

Ian points out, though, that this case may not be quite so ominous. Unlike most cases that the High Court accepts based on a minimum of four votes in favor of acceptance, "this case came up through the Court’s mandatory jurisdiction, meaning that the Court had to at least give it cursory review. The fact that Evenwel will instead receive a full hearing, however, is not necessarily a sign that a significant faction within the Court is eager to use this case to shift power towards white voters."

• "Affirmative Action"

"One of the biggest surprises of Chief Justice John Roberts’ tenure," Ian writes, "is that the Court he leads has not struck down affirmative action on his watch." And the case is one that's well-known both to the justices and to Supreme Court groupies, Fisher v. University of Texas." When it first came before the Supremes, the general assumption was that the end was near for affirmative action.

Instead, the Court’s first Fisher opinion reemphasized [Justice Anthony] Kennedy’s concern [voiced in his 2003 dissent in Grutter v. Bollinger, in which the Court upheld limited affirmative action] that racial affirmative action programs are subject to the highest level of constitutional scrutiny, and returned the case to the conservative United States Court of Appeals for the Fifth Circuit to reconsider Texas’s program.

A year later, the Texas admissions program dodged another bullet when it was upheld again by a divided Fifth Circuit panel.

Now, however, the Fisher case is before the justices again. The question this time around is whether one or more members of the Court’s conservative bloc flinched the first time because they have a lasting concern about striking down this particular program, or whether they simply expected the Fifth Circuit to do so for them. If the later is true, expect them to take matters into their own hands.

Since Grutter was decided, Ian notes, Justice Sandra Day O'Connor, who wrote the decision, has been replaced by the knee-jerk far-right-wing Sammy "The Hammer" Alito. Couple that with "Slow Anthony" Kennedy"s on-the-record problems with affirmative action, and it looks like this could be it.

• "The End of Roe?"

Looming over the entire term are at least two major reproductive health cases that the justices are very likely to agree to hear, even though they have not yet done so. The first case asks whether states can enact sweeping restrictions on abortion so long as they dress them up as sham health laws that appear, on the surface, to do something to protect women’s health. The second is a follow up to Hobby Lobby which asks whether religious objectors can refuse to comply with rules promoting birth control access that literally requires them to do nothing more than fill out a form asking for an exemption from the law.

Both of these cases are discussed at greater length, in addition to another major reproductive rights case that the Court could potentially agree to hear, at this link.

Again, you'll have a better idea of what you'll find at the link of you know the title of the post Ian is directing us to here: "How The Supreme Court Could Destroy Reproductive Rights In One Term."

Getting the picture? It could be a rough ride, this Supreme Court term.

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Catching up with the Supreme Court -- and looking ahead

"Something very unusual happened at the nation’s highest court this year. The justices adjourned for their summer vacation and liberals were left feeling pretty good about the just-completed Supreme Court term. . . . [I]t is unlikely that liberals will feel the same way about the next Supreme Court term."

-- Ian Millhiser, in a ThinkProgress post today, "Coming Next:
The Revenge Of The Supreme Court’s Conservatives"

by Ken

As we know, the marquis cases decided by the Supreme Court in the just-ended term both went the un-conservative way, and both decisions were written by Court conservatives:

• the 6-3 decision in King v. Burwell, with the majority opinion written by Chief Justice John Roberts -- and joined by Justice "Slow Anthony" Kennedy as well as the Court's four moderate justices -- that no, the Affordable Care Act doesn't limit federal subsidies to health-insurance shoppers buying on the individual state exchanges rather than on the federal exchange (created as a backstop for citizens of states with fuck-you scumbag state governments);

• and the 5-4 ruling, with "Slow Anthony" writing the majority opinion, joined by the four moderates, that the Constitution provides a right to marriage for same-sex couples.


THE LATER DECISIONS

The most important decisions announced after the Big Two, which we haven't talked about yet, one had a good outcome and one a bad one.

• In the good outcome, Arizona State Legislature v. Arizona Independent Redistricting Commission et al., the Court refused to invalidate independent redistricting committees established outside the state legislature, rejecting the argument that this violates the Constitution's prescription: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."

Justice Ruth Bader Ginsburg, in a lovely majority opinion joined by the other three moderates and by "Slow Anthony" Kennedy, made clear that states get to decide how legislative functions are accomplished and if a state authorizes ballot initiatives, that satisfies the constitutional requirement. She also paid ringing tribute to the quality, efficiency, and freedom from conflict of interest of independent redistricting commissions.

It would have been disastrous if the Court had ruled otherwise, as the four hard-line thug-justices would have done, depriving states of this excellent option for better-quality redistricting. The reason I say that the decision is more important for what it didn't do is that now all that democracy-averse Republicans have to do is make damn sure states don't empower independent commissions. I don't think we're going to see a lot of them in the foreseeable future.

• Then there's the bad outcome, Michigan et al. v. Environmental Protection Agency et al., Justice Nino Scalia, writing for the majority (with "Slow Anthony" Kennedy back in place), wrote that while yes, the EPA can issue rules regarding emissions from coal- and oil-fired power plants, "EPA must consider cost -- including cost of compliance -- before deciding whether regulation is appropriate and necessary." Note that no consideration is contemplated for the cost of negative health effects of emissions.

This seems to me a big victory for the polluting-power industries, and also seems to me that the Court is prepared to give a hearing to any pro-pollution case polluting industries can cobble together.


WAS THIS A "LIBERAL" TERM AT THE COURT?

The New York Times editorial board doesn't think so, and neither do I. Here's some of what was included in a 4th of July NYT editorial, "The Activist Roberts Court, 10 Years In":

After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act [links onsite -- Ed.] and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. . . .

There is, indeed, an interesting view that the conservatives' weak showing in this term reflected a development described by Dartmouth Asst. Prof. of Government Brendan Nyhan in a June 25 nytimes.com "The Upshot" post: "What seem like liberal decisions may instead represent conservative overreach." He harks back to a case made in 2009 by political scientists Kevin T. McGuire, Georg Vanberg, Charles E. Smith Jr. and Gregory A. Caldeira, who --

predicted that conservatives would press their luck to take advantage when they had a majority on the court, appealing more cases they lost in lower courts. (Conversely, liberals would be less likely to appeal cases because they were more likely to prefer lower-court decisions and to fear creating damaging precedents.) Mr. McGuire and his co-authors then showed empirically that this process increased the number of conservative reversals of lower-court rulings but also increased the number of cases in which a more liberal ruling was affirmed because litigants guessed wrong about how far the court was willing to go.

As a possible example, in those last days the Court announced that it had declined to hear appeals by Kansas and Arizona of the 10th Circuit Court's ruling in Kobach v. U.S. Election Assistance Commission declining to make the commission require proof of citizenship on states' federal voter-application form. "Kobach" is Kansas's genuinely mentally diseased secretary of state, who -- among other crackpot far-right delusions -- sees Democrats everywhere engaged in voter-fraud conspiracies, which have escaped all efforts of detection by sane people. (Note, by the way, that the 10th Circuit ruling applies only to the federal portion of the registration form. It doesn't affect what nutjobs like Krazy Kris Kobach can put on the form regarding local and state elections.)


THERE'S ALREADY OMINOUS NEWS FOR NEXT TERM

Those last-days-of-term announcement dumps included some ominous news about cases the justices have already agreed to take up in the next term, revisiting issues that the Court has already been closing in on, suggesting that there are at least four justices, if not already a majority, prepared to further tighten the vise.

Which brings us back to Ian Millhiser's ThinkProgress post today, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," from which I quoted at the top of this post -- you know, about it being unlikely that liberals will be cheering the next Supreme Court term. (Links onsite.)

Based on two major cases that the Court has already agreed to hear, and a third that is likely to be added to the Court’s docket this fall, next term is shaping up to be a much more conventional term rife with longtime conservative boogie men waiting to be slain by the Court’s right flank.

Abortion: Although the justices have not yet agreed to hear a major abortion case next Supreme Court term, it is likely that they will hear at least one of two cases involving sham health laws that conservative states have enacted in an attempt to get around what remains of the Court’s decision in Roe v. Wade. States such as Texas and Mississippi enacted laws that, at a superficial level, appear to be designed to make abortion clinics safer and to ensure that physicians who perform abortions are well-credentialed. In reality, however, these laws do little to advance women’s health, while simultaneously subjecting clinics to regulatory burdens that will force many of them to close down. At the moment, the only thing keeping multiple Texas abortion clinics open is a temporary stay issued by a 5-4 Supreme Court preventing that state’s law from going into full effect.

The Court will likely announce whether they will hear a challenge to these sham health laws in the fall. If they choose not to hear the Texas case, that could cause almost as much damage to the right to choose in Texas as an adverse Supreme Court decision, as it will allow a lower court decision cutting deeply into reproductive freedom to take effect. Should the justices agree to take this case, which seems likely, the fact that Justice Anthony Kennedy agreed to grant a temporary stay halting the law is a positive sign for advocates of abortion rights.

Nevertheless, no one in the choice community should count on Kennedy’s vote Prior to the Texas law reaching the Court, Kennedy voted on 21 abortion restrictions and allowed all but one of them to go into effect.

Affirmative Action: Two years ago, the Supreme Court gave affirmative action an unexpected stay of execution. Though Court-watchers largely expected the Supreme Court to end race-conscious university admissions programs in Fisher v. University of Texas, the Court voted instead to send the case back down to a lower court for reconsideration.

A year later, the conservative United States Court of Appeals for the Fifth Circuit upheld the University of Texas’s affirmative action program once again. Then, just last week, the Supreme Court announced that they would hear this case for a second time.

Justice Anthony Kennedy has demonstrated that there is some distance between himself and the Court’s four other conservatives, who hold much more absolutist views on race. At the end of this recently concluded term, he voted with the Court’s liberals to preserve a key prong of the Fair Housing Act, which prohibits race discrimination in housing. Nevertheless, there are several signs that he is unlikely to break with the Court’s conservative bloc in Fisher‘s second trip to the justices.

According to one judge, “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court” in 2003 then the aspect of Texas’s policy that is now being considered by the Supreme Court. Yet Kennedy dissented in that 2003 case — a strong sign that he’s already decided that the Texas admissions policy is unconstitutional. Indeed, at oral arguments in Fisher I, Kennedy accused Texas of creating an admissions program where “race counts above all.” That’s very bad news for defenders of affirmative action.

Unions: The Court also announced last week that it will hear Friedrichs v. California Teachers Association, a case that will send many public sector unions’ finances into turmoil if its plaintiffs prevail before the justices.

The core question in Friedrichs is whether non-members of a union can be required to compensate the union for the costs of bargaining on their behalf. Under longstanding law, unions are required to bargain on behalf of all workers in a unionized shop, regardless of whether those workers elect to join the union. Thus, members and non-members alike share in the higher wages and increased benefits that typically come along with unionization.

To prevent a free-rider problem, where workers elect not to join the union because they know that they will benefit regardless of whether they pay their share of the union’s bargaining costs, current law allows unions to charge what are known as “fair share” fees or “agency fees,” which cover each non-member’s share of the cost of bargaining on their behalf. Without these fees, public sector unions may struggle to raise the funds that they need in order to operate, and all workers in many unionized workplaces could eventually lose the benefits of unionization.

The Supreme Court voted 5-4 to limit many unions’ ability to charge these fees in 2014. That’s an ominous sign for public sector unions who have a stake in Friedrichs.

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Amazing but true: The Supreme Court looks into the Constitution and finds that there are some rights there for people who aren't rich

He-e-ere's Booby! "Why don't we save some money and get rid of the Supreme Court?"


"Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion."

-- Ian Millhiser, writing on ThinkProgress

"This Court is not a legislature."

-- Chief Justice Roberts, in his dissenting opinion

"If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual orientation and gender identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise."

-- from a statement by former Adm. (and Rep.) Joe Sestak

by Ken

As he does so often, Joe Sestak nails it. According all citizens their basic rights isn't about doing "them" some sort of favor. It's about being part of a society that's serious about "our shared common enterprise."

We'll come back to Joe's statement. It is, it seems to me, is where we want and need to wind up. Meanwhile we have some filling in to do, and that includes dealing with outright buffoonery like the above sentence from Chief Justice "Smirkin' John" Roberts's dissenting opinion today in Obergefell v. Hodges. Can't you just see the smirk on Smirkin' John's puss as he delivers that hilarious one-liner? "This is court is not a legislature," quips the man who has spent nearly all his time on the Supreme Court using it precisely as a legislature -- often declining to recognize Congress as a legislature. (Of course Congress itself has done its best to abandon that role, but the acts of Congress the chief justice has used as toilet paper date from times when it was at least semi-functional.)

As Howie noted in an "update" this morning, the decision in Obergefell v. Hodges was finally released today, and with "Slow Anthony" Kennedy joining the Supreme Court's four sane justices (for once, instead of simply lumping them thusly, let's recognize them by name: Ginsburg, Breyer, Sotomayor, and Kagan), it turns out that gays and lesbians have a constitutional right to get married just as if they (we) were regular people.

"How unbelievably quickly public opinion changed"

Washingtonpost.com's Chris Cillizza today presented five charts to track the "unbelievably quick" change, staring with this "baseline" chart based on Gallup polling. (Click to enlarge.)

For the record, I have no plans to walk down the aisle anytime soon (hey, the occasional date would be nice), but believe you me, I feel the importance of the High Court's open recognition of our humanness -- or at least five-ninths of the Court. (A shout-out to the Slowman! I know I'm hard on him, for reasons I think are painfully obvious, but I've never said he doesn't from time to time rise to the occasion.) And once again I register the seismic change in public opinion that has taken place in such a relatively short time after all those years (or decades, if not centuries) of incomprehension, loathing, and brutal repression.

The dissenters: Justices Clarence, Smirkin' John, Sammy, and Nino

We now have, by the way, a provisional answer to the question: "How many ways are there to try to deny basic human rights to people of non-mainstream sexual orientation?" Going by the need felt by each of the naysaying justices felt to register a separate "no way, Jose" dissenting opinion, the answer would be: "at least four." (To be more precise, Justices Scalia and Thomas joined Chief Justice Roberts's dissent but also wrote dissents of their own. Justice Alito played "cheese stands alone.")

For the strong of stomach, ThinkProgress's Zack Ford and Judd Legum have gathered "19 Hysterical Passages From Supreme Court Same-Sex Marriage Dissenters."


COLOR ME "SURPRISED," SO LET'S CALL IN A PRO

Until the decisions in the Supreme Court's two current marquis cases came down yesterday and today, I hadn't realized how unoptimistic I was about both. As I hypothesized last night, writing about the 6-3 ruling in King v. Burwell, my surprise at the thumbs-up given to ACA-created subsidies for healh insurance purchased on the federal exchange had something to do with always expecting the worst from this Court. In the case of today's decision there was an additional factor: the justices' own clear disinclination to handle the matter until it was forced to, when finally a split developed at the circuit-court level.

It seemed pretty clear that the justices for whatever reason(s) didn't want to be pinned down to having to say, yea or nay, whether there is a constitutional right to marry regardless of sexual orientation. I figured the justices would try to find some way of narrowing he scope of their ruling, and my go-to legal eagle, ThinkProgress's Ian Millhiser, argues that Justice Kennedy did pull a punch:

Obergefell v. Hodges is not the most perfect victory the Supreme Court could have handed gay, lesbian and bisexual Americans. That would have been a decision applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts.

And yet the decision is still a "massive victory," says Ian. "And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context."

How so? Ian is intrigued by two words used conspicuously in Justice Kennedy's majority opinion: immutable and fundamental.

"Immutable" is used twice, "once in an off-hand statement that sexual orientation is an "immutable nature," and again in a more pointed statement that "psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable."

Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.

Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard. “For much of the 20th century,” he writes, homosexuality was treated as an illness.” Meanwhile, “same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.” Sex between two men or two women “remained a crime in many States,” and “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”

As for "fundamental," Ian observes, "Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.

This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. The Court’s past major gay rights decisions, all of which were written by Kennedy, often read as if they were assembled from rejected lyrics from the Age of Aquarius. They spoke loftily of principles such as “dignity,” but left the reader wondering exactly what sort of legal analysis the Court was engaged in. By rooting the Court’s decision in a fundamental rights analysis, by contrast, Kennedy uses a long-recognized, if controversial, method of deciding constitutional cases. When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.

As Kennedy explains, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” This process “has not been reduced to any formula.” Instead, “it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”

Much of Kennedy’s explanation of why the right to marry meets this standard drips with the same kind of purple pose that Kennedy used in his past opinions. “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage,” begins one section of the Court’s opinion. “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm,” Kennedy continues. “Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

Yet beneath all of this florid language, it is also clear that Kennedy understands, at a very basic and personal level, the humanity that he shares with men and women who happen to be gay. The most moving portion of the Obergefell opinion isn’t Kennedy’s soaring arias about the nature of marriage, it is his simple recitation of the facts of this case.

I'll leave you to Ian's unfolding of the facts of the cases amalgamated in the Obergefell ruling and jump to his conclusion:

Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”

And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.

ADM. JOE SESTAK REMEMBERS "THE DAY I WAS
LEAST PROUD OF THE NAVY I LOVE SO DEARLY"

While the haters have been out in force today, there has also been a splendid outpouring of enthusiasm and good will all across the social spectrum -- a tribute to the amazingly rapid change in the American state of mind. Howie has passed along smart, heartfelt statements by an assortment of folks like Blue America-endorsed Senate candidates Donna Edwards in Maryland and P.G. Sittenfeld in Ohio, and Reps.Mark Pocan (Wisconsin), Ted Lieu (California), and Jared Polis (Colorado).

But the statement that really got to me comes from former Adm. (and U.S. Rep.) Joe Sestak, who for me always combines a big-picture-type guy's vision with a nuts-and-bolts real-world problem-solver's perspective. In both his noble 2010 Pennsylvania U.S. Senate campaign and his current one, his voluminous stream of incisively substantive campaign e-mails have reflected the voice of a big-picture-type guy with the perspective of a hands-on "let's get it done" guy accustomed to, you know, getting it done. (No wonder, as Howie has been reporting, he inspires such loathing from the DSCC and the rest of Democratic officialdom.)

"Today's ruling," Joe's statement begins, "affirms what I learned in my 31 years in the U.S. Navy, where I went to war alongside men and women who were gay."

I could never fathom a justification for any of these warriors going home to the one he or she loves and not having the same equal right to marry that person.

I will always remember the day I was least proud of the Navy I love so dearly – a day in 1993 when an official Navy spokesman, commenting on what would become Don't Ask Don't Tell (DADT), told the New York Times that 'homosexuals are notoriously promiscuous' and if allowed to declare their sexual orientation openly, heterosexuals showering with gay men would have an 'uncomfortable feeling of someone watching.'

I was ashamed. When DADT was passed, a two-star Admiral asked me, “What do you think about this policy?” I said, "It's unconstitutional and I have no doubt that the Supreme Court will throw it out in a couple months." Unfortunately, that didn't happen.

So when I got to Congress, I was proud to co-sponsor legislation to end DADT and prohibit the military from discriminating based on sexual orientation. In my view, we need the best of our communities in the military, regardless of sexual orientation, so that each of us together can truly "be all you can be."

The same can be said of our entire society, and it's why today's ruling is such an important step. I am running for the United States Senate to continue taking the further steps on the path to true equality – in veterans' benefits, public accommodations, adoption refusal laws and so many other fundamental areas.

If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual-orientation and gender-identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise.

IN CASE YOU WERE WONDERING ABOUT THE MANGY
MENAGERIE OF 2016 GOP PRESIDENTIAL HOPEFULS --

I've arranged in alphabetical order a compendium of statements by GOP contenders this morning sent out by DNC National Press Secretary Holly Shulman (who herself says: "Today is a monumental step toward equality. Same-sex marriage will now be legal all across the nation. Love is love, and it’s now the law"):

BUSH: "I believe in traditional marriage."
FIORINA: "I do not agree that the Court can or should redefine marriage."
HUCKABEE: "The only outcome worse than this flawed, failed decision would be for the President and Congress…to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny."
JINDAL: "Marriage between a man and a woman was established by God, and no earthly court can alter that."
PERRY: "I'm a firm believer in traditional marriage… I fundamentally disagree with the court rewriting the law and assaulting the 10th Amendment."
RUBIO: "I believe that marriage…should be between one man and one woman."
WALKER: "The only alternative left is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage."

THE BATTLE AHEAD

This morning Howie quoted Angie Craig, one of two Democrats seeking the Democratic-Farm-Labor nomination to challenge reactionary Minnesota GOP Rep. John Kline, making a crucial point:

While today is a day for celebration, we can’t forget there is still more to do to stop discrimination against the entire LGBT community in areas such as employment and housing, just to name a couple... There are still millions in the LGBT community across the country who can still be fired just because of who they are – and there is no excuse for that.

Exactly right, Angie. The case for making a federal case of same-sex marriage has been controversial, to say the least, in the LGBT community, because clearly it isn't as important in human terms as nondiscrimination in employment and housing. And yet it has turned out, much to the surprise of many of us, to be a winnable fight, and very likely a win that can be built on for those other rights.

I'm encouraged by Ian Millhiser's case that Justice Kennedy's opinion contains the seeds for future support from the Supreme Court recognizing LGBT people as people.

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