Midnight Meme Of The Day!

 

by Noah

It's long past time for America to realize that Supreme Court Justice John Roberts is the Stephen Miller of the court. That doesn't mean he is the only anti-voting rights judge on the court. There are others and right now it looks like their number is about to grow by one more. But, Justice Roberts is their leader. He has devoted his life to the decimation of voting rights for selected citizens and we know who is at the top of that list. Conservatives may have changed their names and party affiliations over the decades but they haven't changed their targets. If Trump's spoken plans to take the election to the Supreme Court come to pass, Robert's position on suppression and ballot counting will be key.

Roberts started his career at the Supreme Court as a clerk for Justice William Rehnquist, one of the most arch conservitive judges to ever plague the court. Then, in 1981, at age 26, Roberts took a job as one of Reagan Attorney General William French Smith's aides. He was then chosen to make the case against our voting rights laws which were up for renewal and fine-tuning at the time. He was a perfect choice for such an evil.

The voting rights act that Roberts was so dedicated to overturning even as a young man was the Voting Rights Act of 1965. That law dismantled much of the post reconstruction era Jim Crow law system that blocked millions of American citizens of color from exercising their right to vote, especially but not exclusively in the states that, to this day, celebrate their heritage of being members of the Confederacy and fighters for repression and slavery. Jim Crow made many citizens pay "unique" poll taxes; guess the number of marbles or beans in a jar, recite poems they'd never heard before, and subject themselves to endless other indignities when they showed up to vote. This is what Roberts wanted to continue and wants to no doubt fully restore. Nowhere was that desire more evident than in the Roberts-led Supreme Court 2013 decision to finally gut the Voting Rights Act with Roberts leading the way by disingenuously saying the law was no longer needed since, in his opinion, racism is over. How's that for a big transparent screen to hide behind? He might as well have said that Black Lives Don't Matter since that has obviously always been his thinking anyway. Since the infamously immoral 2013 decision, every state with a typically racist republican legislature has moved to put Jim Crow style voter suppression rules back into place. And, of course, we haven't seen a bit of racism in our society since 2013, right?

Vote suppression and the twisted use of the Supreme Court have been two of the pillars of Republican Party strategies to win elections. There is no better example than the Bush Crime Family's strategy in Florida for the 2000 presidential election when Katherine Harris, the Florida Secretary of State, under the direction of Jeb Bush, did more than get rid of votes. She purged extreme numbers of voters from the rolls, thus taking away their ability to vote to begin with. The key determination usually used in such things is race and it seems that Harris removed names that "sounded African-American." In 2000, the Bush vs. Gore decision damaged the Supreme Court's credibility. This year, Trump is steering the court like a Titanic heading for a killer iceberg. Republicans across the country have already spent up to $20,000.000 to back up the voter suppression mechanics that they have previously put in place.

President Trump and his party are now pushing the envelope well beyond what was done 20 years ago. This time, purging and voter suppression tactics aren't enough to satisfy their plans for a white nationalist fascist dictatorship. The Republican Party's Dear Leader is openly calling it his "Get Rid Of The Ballots" strategy. It's Bolivian. It's Putinesque. It's however you want to call it. It's the deliberate final nail in the coffin of our long decaying Democracy. It is the Republican Party sum total be all and end all platform for 2020 and they hope to have the Roberts Supreme Court decide this year's election in their favor. Trump is being so bald-faced about this that he has publicly said that that is why he wants his new nominee confirmed immediately and you can bet that a commitment to rule in his favor on election matters and any other matters before the court was clearly made to be a qualification for being the nominee during the interviews. His record of demanding loyalty before country is well recorded. Just ask Jim Comey. Trump is a kiss the ring mobster and he plans on having one more immoral judge that will see things his way so he can consolidate power just like his pals Putin, Duterte, and Kim did it.

Our psychopathic president has made his plans obvious at least since his "president for life" statement 3 years ago. Now he is openly calling for getting rid of ballots and he's not just counting on Louis DeJoy's efforts at the USPS. He's got the sleaziest Attorney General of all time, William Barr, corrupting and commanding the entire so-called Justice Department to work overtime on finding ways to make our votes "disappear like a miracle."

Make no mistake. This has been the long term Republican Party strategy for decades. The proof of that is in the fact that, as I write this Friday morning, nary a peep or anything above a vague whisper of objection to this "Get Rid Of The Ballots" strategy has been heard coming from the mouths of Republicans anywhere in this country. There's no shock there. When they were against impeaching Trump and embracing Putin and his cash, they showed their colors. They've had days to object to Trump's recent public revelation of his plan to stay in office. There has been no patriotic, country first screaming from the rooftops. They are what they are.

By the way, I recently saw Chucky Schumer on MSNBC where he described Roberts as a "moderate." He did it with a straight face even though he was decrying the repbulican steal the election strategy. He is not alone. Many democrats and media hacks refer to Roberts as a "moderate." That just goes to show how far to the right the Democratic Party has moved in the past 50 years in a grotesque and nearly futile effort to keep up with the Republicans. As we all should know by now, that leads nowhere but to oblivion.

Choice Survives Trump's Supreme Court To Fight Another Day-- John Roberts Disappoints Team Red Again

As usual, there was a lot of news yesterday-- head-spinning. But one thing that no-one should overlook is the importance of the Supreme Court striking down a Louisiana abortion law that was meant to prevent abortions in the state. Chief Justice John Roberts joined the 4 liberals on the Court to override the far right contingent working to overturn Roe v Wade. Roberts said "respect for precedent compelled him to vote with the majority," an indication that he would probably vote to uphold Roe v Wade as well.

Last week Roberts also sided with the liberals to preserve workplace equality for the LGBTQ community and to uphold the DACA program. I checked over at Breitbart to see what the lunatic fringe was taking the news.

I also checked in on some of the Blue America-endorsed candidates who are running against anti-choice candidates, starting with Audrey Denney, who is running against a California GOP dinosaur, Doug LaMalfa (CA-01). "This is a terrifying moment in U.S. history, when 46 years of precedent for recognizing women’s right to privacy and sovereignty over their own bodies is being systematically dismantled," she wrote. "The policymakers who have put forward these archaic bans on safe and legal abortion claim to be doing so because they value human life... Making the decision to end a pregnancy is a difficult and tragic one-- but having the right to make that decision is foundational to protecting women’s health, privacy, and well-being. If the people who wrote these laws truly cared for the sanctity of life, they would be working tirelessly to reduce our country’s maternal mortality rate (currently the worst among industrialized nations), but instead they are limiting or eliminating care, and more mothers are dying during childbirth. They would be investing in initiatives to improve infant and child health and access to early education and child care. They would be fighting for paid family leave, so that parents have adequate time to regain their own health and support their new child. They would be losing sleep over the 12 million children in this country who will go to bed hungry because their parents are trapped in poverty, unable to earn a living wage... The legislators who support abortion bans have failed us. They have failed their constituents. They have failed our nation. Their time is up."

Jon Hoadley know exactly what she's talking about. He's running for Congress, while still a member of the Michigan state legislature, where he often has to debate with the kinds of failed legislators Denney was writing about. "Reproductive healthcare is healthcare," he told me today. "Frankly, I was surprised but also encouraged to see the Supreme Court affirming the right to access to healthcare for folks in Louisiana, and across the country. For Michiganders, Fred Upton has been a steadfast vote to scale back or otherwise diminish reproductive healthcare. While this decision from the Supreme Court is encouraging, it's critical that we elect leaders up and down the ballot who will continue to protect healthcare going forward." And that reminds me-- this Blue America 2020 congressional thermometer on the right will allow you to contribute to pro-Choice candidates all on one page. Just click on it.

Julie Oliver is running for a seat in Central Texas, taking on an entrenched anti-Choice incumbent, Roger Williams. "Every woman should have the choice of when she wants to have children, when she doesn’t, and every woman should have the freedom to raise those children in a safe, healthy environment," said Julie today. "But in Texas, ideological attacks on womens' reproductive healthcare have led to a tragic, alarming maternal mortality crisis that disproportionately harms Black women and their babies. We need to enshrine Roe v. Wade and repeal the Hyde Amendment."

Chris Armitage is a man in eastern Washington running for a seat held by a woman-- but she's anti-Choice and he's pro-Choice. "Cathy McMorris," he told me, "wants to criminalize abortion; she doesn't believe in a person's jurisdiction over their own body. She wants to see Roe vs Wade overturned. She is an extremist who is trying to create an America where victims of rape have no choice, and their voice over what happens to their body is once again taken away, as the government forces them to have a child without their consent. Then in Cathy's America they also cut SNAP benefits so that the mother and child subsequently starve. We can do better, we need to stop Cathy, and I will be the candidate to unseat her."

Kathy Ellis lives in southeast Missouri, a hot house of right-wing ideology and anti-choice fanaticism. Her opponent, in fact, is a right-wing fanatic who vehemently opposes women's choice. She told me that "As a candidate in a state like Missouri-- with some of the strictest abortion laws in the country-- I’m relieved to hear of SCOTUS’s decision today. It’s one many hope-inspiring decisions we’ve seen recently, and it reminds us that organizing and advocacy works. Now, about my opponent Jason Smith who is staunchly anti-choice and parades around his Right to Life endorsement at every chance he gets-- it’s time for him to go. He’s clearly on the wrong side of history and his stance on this topic is one held by only a few Americans. Even in a district like mine that’s rural and recently red, we’ve seen large actions and progress surrounding abortion rights. It’s time for a leader who agrees with the majority of Americans on this topic. Further, if Smith was truly 'pro-life,' he’d fight for healthcare for all, access to healthy food, and strong education systems. Instead, he regularly votes against all of these things. It’s a facade, and the American people see that clearly."


  

Who's To Blame When Parties Get Out Of Hand? Is Republican Virtue Dead And Buried?

"Who's to blame when situations degenerate?" That what's the B-52s wanted to know in 1979, sometime between the adoption of the U.S. Constitution and the Trump "acquittal" yesterday. Adam White, a resident scholar at the right-wing American Enterprise Institute and member of the Federalist Society, teaches at George Mason University's Antonin Scalia Law School. Yesterday at dawn, The Atlantic published an historical essay, A Republic, If We Can Keep It, he wrote as Trump was preparing for his acquittal and his State of the Union address. And while many might not find White's essay as incisive as the B-52's song, it is worth reading... after listening to the song. He begins by tying the end of the Trumpanzee impeachment trial to a little known-- other than by law students-- factoid about Founding Father John Jay, a governor of New York and the first Chief Justice of the United States.

In the days leading up to the Senate’s impeachment trial, some people hoped that Chief Justice John Roberts, presiding over the trial, would use his position to send a strong message to the senators on what the Constitution requires of them. He had, in fact, already sent such a message, just weeks earlier, on what the Constitution requires of all Americans. On December 31, in a letter accompanying his annual report on the work of the federal courts, Roberts called on federal judges-- and everyone else-- to invest themselves in the preservation of constitutional democracy.

“Each generation,” he wrote, “has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.” For Roberts, this requires civic education-- and something more fundamental than that, too.

He illustrated his point with a founding-era episode involving the nation’s first chief justice, John Jay. After Jay committed to joining Alexander Hamilton and James Madison in writing essays in defense of the proposed constitution, Jay was seriously wounded by a mob of New Yorkers who had been whipped into a frenzy by rumors of grave robberies. Jay’s wounds derailed his involvement in our nation’s greatest work of political philosophy, The Federalist Papers. “It is sadly ironic,” Roberts wrote, “that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor.”

The connection between Jay’s day and ours is clear: “In our age,” Roberts wrote, “when social media can instantly spread rumor and false information on a grand scale,” there is even greater danger that political passions can turn us against one another, or against constitutional government itself. He emphasized judges’ particular role as “a key source of national unity and stability,” but his deeper point was that those values are needed among more than just judges.

His letter invoked Jay, Hamilton, Madison, and John Marshall, but his ideas called to mind another Founding Father: Benjamin Franklin, who, on leaving the constitutional convention of 1787, supposedly told a curious passerby that the Framers had produced “a republic, if you can keep it.”

What does it take to “keep a republic”? Nearly two and a half centuries into this experiment in self-governance, Americans tend to think that they keep their republic by relying on constitutional structure: separated powers, federalism, checks and balances. But constitutional structure, like any structure, does not maintain itself. Each generation has to maintain its institutions and repair any damage that its predecessors inflicted or allowed. This task begins with civic education, so that Americans know how their government works, and thus what to expect from their constitutional institutions.

Yet civic education alone, though necessary, is not sufficient. For civic education to take root and produce its desired fruit, the people themselves must have certain qualities of self-restraint, goodwill, and moderation. Because those virtues are necessary for the functioning of a constitutional republic, they are often called civic virtue, or republican virtue. This is not morality writ large, but something more limited and practical. As the late Irving Kristol argued in an essay 45 years ago, republican virtue is fundamentally the virtue of public-spiritedness as the Founding Fathers knew it:

It means curbing one’s passions and moderating one’s opinions in order to achieve a large consensus that will ensure domestic tranquility. We think of public-spiritedness as a form of self-expression, an exercise in self-righteousness. The Founders thought of it as a form of self-control, an exercise in self-government.

Kristol further described this in terms of “probity, truthfulness, self-reliance, diligence, prudence, and a disinterested concern for the welfare of the republic.” A cofounder of the policy journal the Public Interest, he understood that in a republic there is such a thing as the public interest apart from-- and perhaps at odds with-- one’s own personal interests, and thus it requires citizens to restrain themselves in the slow, deliberative workings of constitutional and civic institutions, and even in their interactions with one another, as Roberts emphasized in his letter.

...These are themes that the Constitution’s framers knew well. Madison, for example, understood how much of his constitutional vision depended on republican virtue, and he wrote about it. But those writings have been overshadowed by his more famous quotes, on the need for constitutional structure to guard against mankind’s vices. “If men were angels,” he observed in “Federalist No. 51,” “no government would be necessary.” For people who aren’t angels, republican government relies on constitutional checks and balances, which redirect certain vices toward the public benefit: “Ambition must be made to counteract ambition,” he argued, and liberty is safer when one ambitious branch of government counteracts another.

But to say that constitutional government does not need people to be angels is not to say that constitutional government requires no virtue at all. Madison himself warned against assuming otherwise. In “Federalist No. 55,” facing critics’ predictions of corruption in Congress, he observed that while “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,” there are also “other qualities in human nature which justify a certain portion of esteem and confidence.” But then, setting optimism aside, he warned:

Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

This was blunt. Madison knew that the Constitution could not be sustained if the country did not first sustain certain virtues of self-restraint among those who administer the government, and among the people who choose them.

...The necessity of virtue and self-restraint comes through even more clearly with regard to the presidency. The Constitution contains express provisions for presidential self-restraint: The president swears an oath to “faithfully execute the Office of President of the United States,” and he bears a constitutional duty to “take Care that the laws be faithfully executed.” By these vows the president is bound to enforce not just the statutes that he likes but also the inherited statutes that he dislikes, so long as the statute is constitutional.

Defenders of presidential power-- recently Attorney General William Barr, in his address to the Federalist Society-- often quote Hamilton’s discussion, in “Federalist No. 70,” of the Constitution’s need for “energy in the executive.” But advocates for presidential energy should focus on both the president’s powers and on the president’s duties, and the ends to which presidential power is supposed to be directed. Hamilton championed energy in the executive not for its own sake but for “the steady administration of the laws” and “the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” Rooted in the right republican virtues, a president’s energy reinforces our constitutional system; unmoored from those virtues, a president’s energy destabilizes it-- or worse.

Hamilton made these points even more bluntly elsewhere. In “Federalist No. 68,” he argued for choosing the president through an electoral college, rather than by parliamentary election or direct democracy, in order to maximize the odds of electing presidents with “the requisite qualifications”-- not men with “talents for low intrigue, and the little arts of popularity,” but “characters pre-eminent for ability and virtue.”

Oops! Time to try something else, perhaps?

Perhaps Hamilton’s subtlest argument for republican virtue in the presidency is found in his famous essay on the judiciary, “Federalist No. 78.” Here, in his discussion of the judicial branch’s relative weakness, Hamilton observed that the courts “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” That is, the Constitution gives presidents at least some legitimate authority not to enforce judicial decisions with which they disagree, if only when necessary for presidents to carry out their constitutional duty to “take Care that the Laws be faithfully executed.” But Hamilton’s balance of judicial and presidential power is sustainable only if presidents restrain themselves from disregarding judicial decisions whenever they feel like it; presidents’ power can coexist with the Constitution’s judicial power and independence only if they use their non-enforcement power sparingly, if at all.

The executive branch’s need for republican virtue is not limited to the president alone. It extends throughout the administration that he oversees. In “Federalist No. 76,” remarking on the Senate’s role in the appointment of officers, Hamilton observed that to give the president unfettered powers of appointment would free him to staff his administration not from merit in the public interest but “from family connection, from personal attachment, or from a view to popularity.”

Constitutional government, by contrast, requires an administration staffed by the nation’s best servants, not by a president’s favorite friends. The steady administration of the laws requires an executive branch filled with officers who follow the president’s lawful orders but not before providing the constructive feedback that the president needs. Or, as Hamilton put it, constitutional administration requires officers who offer more than just the “pliancy to render them the obsequious instruments of [the president’s] pleasure.” Instead, constitutional administration depends on officers with both courage and fortitude, but also with the moderation and self-restraint necessary to follow lawful presidential orders with which they personally disagree.

Finally, the Constitution needs republican virtue not just in the three branches of government but also in the people whom the government serves and is accountable to. Long before Roberts wrote his year-end letter, Hamilton and Madison filled The Federalist Papers with warnings about “passions” that inflame public opinion and prevent reasoned deliberation. Hamilton introduced this theme at the very outset, in “Federalist No. 1,” presenting the Constitution’s ratification debates as an opportunity to see “whether societies of men are really capable or not of establishing good government from reflection and choice,” and to decide the debates not as a competition of narrow interests but with a view to “patriotism, to heighten the solicitude which all considerate and good men must feel for the event.”

Madison emphasized it, too. Recognizing that the public will always be impassioned by politics, he observed in “Federalist No. 49” that the process and structure of our federal government will help to transform the public’s passions into a less impassioned public reason, so the public’s “reason, alone” would “control and regulate the government,” while the government would control the people’s passions. But this approach presumes that an impassioned public is willing to be controlled. If the public persists in its impassioned state, it will eventually have the opportunity to overcome whatever limits the government tries to put on the impassioned majority. Only with the virtues of self-restraint urged by Madison and Hamilton in their time, Irving Kristol four decades ago, and Roberts and Gorsuch today, can the country avoid the national self-immolation that the Founding Fathers feared.

The justices can do much to advance these themes in public, by writing or speaking about them and by modeling them in their own work: in the way they conduct themselves at oral argument, and in the tone and style of their judicial opinions. But on this, as in all things, judges can do only so much to save the country from itself. For the country to relearn republican virtue will require heroic efforts by parents, teachers, clergy, coaches, and statesmen. Benjamin Franklin did not promise “a republic, if your judges can keep it.” He promised something far more challenging: “a republic, if you can keep it.”

Supreme Court: A Little Bit Of Good— An Avalanche Of Bad

Lets get the bad part out of the way first. The Supreme Court— in a totally predictable partisan 5-4 decision— told the states to gerrymander all they like without worrying about the Supreme Court doing anything about it. That may be good news for corrupt Democratic legislatures in Maryland and Illinois but… Republicans fully control 23 states— legislatures and governors— and most of them have every intention off going all out to make sure Democrats win as few seats as possible. Democrats control 14 states and 13 states have split control. If the Republicans maintain their control in 2020, they are sure to redraw grotesque maps in 2021— especially in Florida (2 new seats) and Texas (3 new seats). Yesterday, the AP, reported that the Wisconsin case to get fair districts (scheduled to go to court for next month) is probably over.

Democratic voters filed a federal lawsuit in Madison in 2015 alleging boundaries Republicans drew in 2011 unfairly diluted Democrats' voting power. They argued Republicans spread Democrats across conservative districts and packed them into left-leaning districts.

…Democratic legislators introduced a bill last week that would create a commission within the Legislative Reference Bureau to draw the boundaries. Districts could not be drawn to favor a political party or incumbent and the commission couldn't use voters' political affiliations, previous election results or demographic information to make the maps.

"Because we can no longer trust either court to do what is best for the people with respect to ending political gerrymandering by either party, it is important now more than ever to continue the fight to pass non-partisan redistricting in Wisconsin," the bill's chief Senate sponsor, Dave Hansen, said in a statement Thursday.

The measure has almost no chance of passage since Republicans control both houses of the Legislature.

Democratic Gov. Tony Evers included provisions in the state budget calling for creating a nonpartisan redistricting process but Republicans who control the Legislature's finance committee stripped the proposal out of the spending plan this spring.

Democrats could turn to state courts, but any challenges would almost certainly end up at the state Supreme Court, likely another dead end since conservatives control the court.

…Democrats' best option for changing the boundaries may be to somehow recapture the majority in both the Senate and Assembly in the 2020 elections, a herculean task given the GOP boundaries will still be in play then and Republicans will go into the elections with an overwhelming 27-member majority in the Assembly.

If Republicans maintain complete control of the Legislature Evers would be able to block any new boundaries the GOP draws in 2021. If the two sides don't agree on the new boundaries they could ask a judge to draw the maps for them. Republicans will try to get that fight before the state Supreme Court. Democrats will likely try to get the case heard in federal court.

Evers issued a statement Thursday calling the U.S. Supreme Court's ruling "devastating for our democracy" and promising to veto any gerrymandered maps that land on his desk.

"The people should get to choose their representatives, not the other way around," the governor said.

The minority dissent in the Supreme Court this week was powerful and convincing, but not powerful enough to convince John Roberts, who wrote the GOP opinion. Roberts seems to fancy himself the “swing vote” and he freaked out Trump and the conservative movement on the same day by siding with the 4 Democrats to create a 5-4 decision against the Republican census question shenanigans. “On two consecutive days this week,” wrote Josh Gerstein, “Roberts sided with the court’s liberal wing to deliver 5-4 rulings that deeply disappointed right-leaning lawyers and pundits who had been counting on near-certain victory from a court now stocked with a pair of Trump-appointed justices handpicked by conservative legal activists.”

On Thursday, Roberts stunned many court watchers by invalidating a Trump administration decision to add a question on citizenship to the 2020 census.

Adding to the sting is the fact that the chief justice wasn’t just along for the ride on the closely watched ruling: He penned the majority opinion, which essentially accused Commerce Secretary Wilbur Ross of lying about his reasons for seeking to add the question on citizenship.

“Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision,” Roberts wrote, backed by the court’s four liberals. He goes on to rip the government’s claims in the case as apparently “contrived” and “a distraction.”

A day earlier, Roberts was the sole GOP appointee to side with the liberal wing in a case many legal conservatives were hoping would deal a major blow to the much-loathed administrative state by overturning decades of precedent allowing federal agencies wide leeway to interpret their own regulations.

Among some conservatives close to Trump, the sense of anger and betrayal was palpable, with some on the right suffering painful flashbacks to Roberts’ 2012 decision to join with the court’s Democratic appointees and uphold Obamacare’s individual mandate even as all of his Republican-appointed colleagues dissented. The anger seemed especially acute with possible abortion-related cases on the horizon for the next term.

“I’m for impeaching the Chief Justice for lying to all of us about his support of the Constitution. He is responsible for Robertscare and now he is angling for vast numbers of illegal residents to help Dems hold Congress. Enough Deception from GOP judges on the Constitution,” American Conservative Union chairman Matt Schlapp tweeted shortly after the Thursday ruling.

“I want to Impeach Roberts and Trump would get another pick. Sounds good to me,”’ Schlapp added. “Chief Justice John Roberts ‘fixed’ Obamacare and now he found an I significant [sic] excuse to allow those here illegally to help Dems keep the house majority. He lied to all of us and under oath in the Senate. It’s perfectly legal to ask citizenship ? on census.”

Former White House aide Sebastian Gorka also weighed in to express his disgust. “Chief Justice Roberts of the #SCOTUS betrays the US Constitution again,” Gorka said on Twitter.

Conservative pundit and former GOP Senate candidate Dan Bongino echoed recurring conservative complaints that Roberts is looking to curry favor on the Washington dinner party circuit.

“John Roberts is terrified of the liberal op-ed columnists. They know they hold him captive. They can easily sway his opinions by issuing their ‘warnings’ to him through their columns,” Bongino wrote. “He’s not a judge anymore, he’s a politician.”

…“I still haven’t fully psychologically accepted the truth about Roberts,” said Curt Levey of the Committee for Justice in an interview.

“He may in his heart think he’s a conservative, but he’s not going to be what conservatives want and liberals fear... With each passing year— maybe this doesn’t happen every year, but we’ve seen enough of it, we kind of have to accept he’s roughly another Kennedy,” Levey said, referring to Justice Anthony Kennedy, the Reagan appointee who dismayed conservatives by upholding abortion rights and leading the court to declare a constitutional right to same-sex marriage.

Levey said the political polarization in the country may be prodding Roberts to go further than he otherwise would in trying to ensure that the court is viewed as moderate and not being buffeted by the political winds. Last November, when President Donald Trump made derisive comments about “Obama judges,” Roberts shot back with a statement declaring “We do not have Obama judges or Trump judges, Bush judges or Clinton judges... What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

“At the end of the day, Roberts wants the court to be well-respected,” Levey said, calling the chief justice “a compromiser and people pleaser.”

“I think the hysteria on the left about an ‘arch conservative’ court is having an effect,” the legal activist said. “At the end of the day, [Roberts] wants the court to be well respected and a highly divided nation is a threat to the legitimacy of the court because with every decision the half the public is convinced the court is acting for political reasons.”

Let me close with a plea for support for Democratic efforts to win control of the state legislature in Virginia. They are very close and not is definitely in reach. The thermometer above, on the right, is the 2020 Blue America state legislative candidates. There aren't a lot of candidates, but the carefully-vetted right candidates. Please do what you can.

New Candidate Alert: Meet Marqus Cole (GA-07)

Georgia's 7th congressional district-- small towns and suburbs in Gwinnett and Forsyth counties northwest of Atlanta-- is going to be an election hot house next year. It's been a red district for a long time that's turning purple. McCain won it with about 60% and so did Romney. Trump won it as well, but his margin was narrower: 51.1% to 44.8%. Then last year, Stacey Abrams won the district by just over 1,700 votes. A weaker Democratic congressional challenger, Carolyn Bourdeaux, did well too-- but not well enough to win the seat. Well, enough, though, to scare the Republican incumbent out of the 2020 race. Rob Woodall announced he's retiring at the end of the current term, creating an open seat. It's now a top tier target for both parties.

Carolyn Bourdeaux didn't impress us as a candidate last cycle and we were really happy to see that there are 3 other Democrats in the primary besides her this cycle. Marqus Cole is the progressive in the race. The other two are establishment candidates much like Bourdeaux-- a wealthy Hillary Clinton fundraiser, Nabilah Islam, and John Eaves, a Fulton County Commissioner from another district, who ran for mayor of Atlanta last year (coming in 8th with 1.2% of the vote).

When I spoke with Marqus the first political topics he brought up were voting rights, a fair tax code and healthcare. Short version of how he sees healthcare: he backs a similar approach to the one Bernie and Pramila have introduced-- a much-improved single-payer system for all Americans, Medicare which fixes the high priced pharmaceuticals problem the GOP built into it with Part D and Medicare which includes care for teeth, ears and eyes. So not just "Medicare-For-All" as much as a new and improved Medicare-For-All. An even shorter version of his thoughts on fair taxation: "eliminating loopholes in the tax code so that millionaires and billionaires pay their fair share." (Remember what Chris Hayes said on MSNBC: when looking at candidates, figure out what they'll fight for and who they'll fight for-- and don't spend too much time on the noise. That said, I asked Marqus to introduce himself with a guest post explaining why basic democracy is so important for him in this campaign. Please give it a careful read and if you like it-- and I think you will-- please consider contributing what you can to his campaign by clicking on the Blue America 2020 thermometer on the right.

Guest Post: Protecting Ballot Access For All Georgians
-by Marqus Cole

"Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." Chief Justice John Roberts, Shelby County v. Holder. 2013

Chief Justice Roberts, I’m here to take you up on your challenge. It is time for Congress to remedy the problem of racial discrimination in voting rights. And as the U.S. Representative for the Georgia 7th Congressional District, I am going to fight to do just that.

You want to talk about “current conditions,” Chief Justice Roberts? I can tell you about current voting conditions. People around the country, because of their race or income level, are facing barriers to exercising their Constitutionally protected right to vote.

My forefathers were beaten, bullied, and bloodied to keep them away from the ballot box in the Jim Crow era south. My Grandfather and my wife’s Grandfather served the country in the Army to defend the principles and values of democracy abroad and returned to a country where their own votes were not protected. Our ancestors suffered and fought to protect voting rights. I will not sit idly by as the U.S. Supreme Court destroys our voting rights and Congress sits impotent, refusing to to do anything about it.

When the John Roberts Court in Shelby County gutted the crown jewel of the Civil Rights Movement by finding section 4 of the Voting Rights Act unconstitutional, it simultaneously threw down a challenge for Congress: Ensure that new legislation is more appropriately responsive to “current conditions” or continue to let the voice of the people be suppressed. And to no one’s surprise, Congress has not acted. Voters in my community and across the country continue to be disenfranchised.

It reminds me of that bloody Sunday in 1965 when my fraternity brother, Congressman John Lewis, stood as a symbol of the then “current conditions.” He stood in the face of incivility, injustice, and immorality, demanding rights at the cost of much blood and many tears.

It was on that day that America watched its dark twisted soul bared and broadcast on national television. And it was in that context that the United States Congress found its conscience and its voice and united to pass the very same Voting Rights Act that Chief Justice Roberts summarily tossed aside as if it was yesterday’s news in Shelby County.

What is our “current condition,” Chief Justice Roberts?

Our “current condition” is rife with voter fraud and discrimination.

Our “current condition” is one where all too often marginalized minority voters find themselves in unreasonably long lines with unreliable voting machines.

Our “current condition” is one where in some places you need more identification to cast your vote than to buy a gun.

Our “current condition” is one where local officials reject, deny, and outright forge ballots of voters from communities of color.

Our “current condition” is one where the elected official in charge of maintaining a fair election purged more than 500,000 voters in the year preceding his run for Governor of Georgia.

Our “current condition” is one where foreign influence interferes on behalf of a candidate who openly states, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”

The time is now. We must take up the baton of the great cause of the generations before.

We must re-instill faith into the ballot booth.

We must reinvigorate our calls for action.

We must recommit to what was once a great shared value by all Americans: the VOTE is the bedrock of our government.

It is this current condition that cries out for action now.

I propose we take this opportunity to act boldly by passing the Voting Rights Advancement Act bill proposed by Congresswoman Terri Sewell.

I propose we redouble our commitment to fully funding and staffing the Department of Justice’s Office of Civil Rights so they can pursue and prosecute bad faith actors.

I propose that we provide real federal dollars to enhance and protect our ballot boxes and voting machines from unscrupulous actors and errant mistakes by ensuring every voter gets a paper receipt.

And finally, I propose that we place the highest value on ensuring fair and free elections by enshrining our commitment to the opportunity to vote with a National Voting Day in November replacing Columbus Day as a federal holiday.

Chief Justice Roberts, I’m here to solve the problem you created.

Corrupt Conservatives In Congress Pass A Bill Guaranteeing More Deadly Mercury Poisoning

Yesterday we had some good news and some bad news when it come stop air pollution. The good news, surprisingly came from the Supreme Court. The bad new, unsurprisingly, from Paul Ryan and his corrupt conservatives in Congress. First the good news: Chief Justice John Roberts rejected a plea to block an EPA air pollution rule for power plants that was led by America's most toxic Governor, Michigan Republican Rick Snyder, best known for poisoning the children of Flint. He still hasn't been indicted or lynched. Michigan and the states backing Snyder sued the EPA for the right to have their industries belch mercury into the air. Lead poisoning wasn't enough for Snyder apparently.

In a significant victory for the Obama administration, Chief Justice John G. Roberts Jr. on Thursday refused to block an Environmental Protection Agency regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants.

Chief Justice Roberts rejected an application from 20 states that said a federal appeals court in Washington had effectively thwarted their victory in the Supreme Court in June, when the high court ruled that the E.P.A. had failed to take into account the punishing costs its mercury regulation would impose. In that 5-to-4 decision, Michigan v. Environmental Protection Agency, the Supreme Court ruled that the agency had run afoul of the Clean Air Act by deciding to regulate the emissions without first undertaking a cost-benefit analysis to show the regulation to be “appropriate and necessary.”

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia, who died last month, wrote in June. “Statutory context supports this reading.”

...The action by Chief Justice Roberts is an indication that Justice Scalia’s death has altered the balance of power on the Supreme Court.

The bad news was also mercury-related. Ohio reactionary, Bill Johnson, complains that EPA rules to limit toxic gases, primarily mercury, from the brick and tile industry, is too costly to the industry and that the EPA emission standards are too strict and too onerous (on his campaign donors). Johnson's bill, H.R. 4557, which was cosponsored by 5 right-wing Republicans and two major bribe-taking corrupt conservative Democrats, Sanford Bishop (Blue Dog-GA) and Terri Sewell (New Dem-AL), would, if passed by the Senate and signed by Obama, prohibits the EPA "from requiring compliance with Clean Air Act rules concerning national emission standards for hazardous air pollutants with respect to brick and structural clay products manufacturing or clay ceramics manufacturing until judicial reviews of the rules are complete." It passed 238-163, all members of the House Poison The Air Caucus (AKA, the Republican Party) voting for it and all the Democrats except 7 voting NO. The 7 Democrats who would like to see their constituents' children die of mercury poisoning:

• Brad Ashford (Blue Dog-NE)
• Sanford Bishop (Blue Dog-GA)
• Jim Cooper (Blue Dog-TN)
• Henry Cuellar (Blue Dog-TX)
• Collin Peterson (Blue Dog-MN)
• Terri Sewell (New Dem-AL)
• Kyrsten Sinema (Blue Dog-AZ)

Vaporized mercury poisoning can cause kidney malfunction, respiratory failure and death. Common symptoms include insomnia, mood swings, nervousness, irritability, muscle twitching, muscle atrophy, tremors and decreased cognitive functions. But corrupted conservatives don't feel it's worth the cost of cleaning up the process-- at least not to the guilty companies' bottom lines (their campaign donors).

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.

#

Did Chief Justice Roberts go a bit too far in explaining why judges are different from all other elected officials?

Chief "Smirkin' John": Too clever for his own good?

by Ken

As Daily Kos's Adam B writes in a fine post on yesterday's Supreme Court ruling that Florida can indeed bar judicial candidates from personally soliciting campaign funds, the ruling "stunned many Court observers -- certainly including me."

Even in retrospect, it looks to have been a ho-hum Roberts Court split, with the Five Loonies on one side and the Four Moderates on the other, and how dare a state try to limit anyone in pursuit of campaign cash? I say "even in retrospect," because eight of the nine justices lined up in their expected places. It's just that there was one deviant, and he caught everyone by surprise. Yes, none other than Chief Justice "Smirkin' John" Roberts himself ditched the Loonies bloc and joined the Court moderate nerds the other way.

Now I'm not going to suggest cause and effect, but merely point out that this maneuver had the side effect of putting the chief in the position of assigning himself the role of opinion-writer, and the result may not be exactly what one of the Court's nerd kids might have written. For starters, it meant that the decision could be couched in terms of how judicial elections are different from all other kinds, because judges aren't politicians, even if they have been every day of their lives up to the point when, they hope, they put on judicial robes. And the courts may legitimately place limitations of very certain sorts on their fund-raising. Yes, with the chief writing the opinion, there was an opportunity to minimize any language that might come back to haunt the Loonies when it comes to other attempts to keep some kind of lid on fund-raising.

Well, our legal eagle, ThinkProgress's Ian Millhiser, is here to tell us that in the process the chief kind of let the cat out of the bag, in a post called, "Chief Justice Roberts Accidentally Reveals Everything That’s Wrong With Citizens United In Four Sentences." It seems the chief worked so frenetically to define things judges mustn't do, he left the clear implication that those are things that holdes of other elected offices may.

Here's Ian (links onsite):

On Wednesday, a 5-4 Supreme Court held in Williams-Yulee v. Florida Bar that states may “prohibit judges and judicial candidates from personally soliciting funds for their campaigns.” It was a small but symbolically important victory for supporters of campaign finance laws, as it showed that there was actually some limit on the Roberts Court’s willingness to strike down laws limiting the influence of money in politics.

Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:

States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

Most Americans would undoubtedly agree that judges should not “follow the preferences” of their political supporters, as they would agree that judges should not “provide any special consideration to his campaign donors.” But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should “follow the preferences” of their supporters and give “special consideration” to the disproportionately wealthy individuals who fund their election.

This view of lawmakers obedient to a narrow segment of the nation is not new. To the contrary, it drove much of the Court’s widely maligned campaign finance decision in Citizens United v. FEC. Justice Anthony Kennedy’s majority opinion in Citizens United does not simply argue that “[f]avoritism and influence” are unavoidable in a representative democracy, it appears to suggest that they are a positive good. “It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors,” Kennedy wrote in Citizens United. “Democracy,” he added “is premised on responsiveness.”

Wouldn't it be nice if somebody could make this come back to haunt the chief?
#

Our clown Supreme Court takes on the bogus challenge to Obamacare -- and makes believe it's legitimate!

Justice "Slow Anthony" Kennedy: "At least," says Ian Millhiser, "one of the Court’s Republicans appears to have come to work wearing his judicial robe, and not his partisan hat."

by Ken

All in all, I'm inclined to go along with Greg Sargent's estimate of yesterday's Supreme Court oral arguments on King v. Burwell: "A hint of good news for Obamacare, but don’t get your hopes up too much." King v. Burwell, you'll recall, is the case that seeks to topple the Affordable Care Act on the ground of a single infelicitous wording, neither noticed nor known to exist by anyone on the planet until it was turned up by the cadre of right-wing lawyers gathered precisely to find any means they could to maim or cripple the law.

We've gone over this so many times that I hope it doesn't require extensive explanation. In a single buried reference the law refers to subsidies being available for insurance purchased through "an Exchange established by the State." Not "a" state or "one of the states," but "the State." In context it seems clear to anyone actually trying to figure out the intent of the law, as opposed to imposing an ideologically hostile view on it, that this reference to "the State" is to "the government."

The context here is the entire rest of the law, which nowhere else so much as hints at such a distinction between state- and federal-established insurance exchanges, not to mention the fact tthat until this hokum action was brought, on the advice of a gathering of right-wing legal hoodlums who made no secret of the fact that they took it as their mandate to find any way they possibly could to undo the ACA, I don't think a single person could be found anywhere who had any inkling that the law envisioned any such distinction. Certainly none of the right-wing Obamacare haters had any such inkling; you can easily assemble an encyclopedia of right-wing-buttwipe quotes that assumed the exact opposite.

Nevertheless, it seems clear from the comments and questions that, while the four "moderate" justices -- Stephen, Ruth, Sonia, and Elena -- aren't swallowing the right-wing bullshit, at least three of the talking far-right-wing ideologues are. By which I mean Justices Nino (I love Jeffrey Toobin's newyorker.com note that "Scalia looks ever more like a Fox News justice, who seems to get his talking points more from popular culture than from the law"), Sammy the Hammer, and Slow Anthony, and to their number we can surely add the traditionally non-talking Justice Clarence.

There was a crack about the law meaning just what it says, when the whole point is that, if you've got a brain and any knowledge of how the courts (and the Court) normally handle statutory ambiguities), the law doesn't mean what it's being misread to mean. Sometimes you wonder whether these hoodlums even read the briefs, or listen to the arguments.

Here's ThinkProgress's Ian Millhiser (in his post, "Obamacare Will Probably Survive Its Second Trip to the Supreme Court") on the hardest-core justices:

Justices Antonin Scalia and Samuel Alito were the only certain votes to strike down the credits, but their arguments at times painted them as political naifs. Alito, at one point, harped on the fact that only six states that refused to set up their own exchanges joined a brief urging the Court to uphold the tax credits — a fact that can be explained largely by partisan politics. Scalia asked: “won’t Congress fix” the problem if the Court breaks the law?

[Solicitor General Donald] Verrilli had a sharp response to that later question: “This Congress, your honor?”

THIS DOESN'T MEAN THAT ALL FOUR RIGHT-WING
JUSTICES ABOVE ARE IN SURE THUMBS-DOWN MODE

Among these four (yes, there's a missing fifth, but we'll come back to him in a moment), there was a significant surprise.

In the general specualtion about King v. Burwell as it has settled into repose in the hands of the High Court, we've heard a fair amount of talk about the legal and perhaps constitutional problem of a law that so far after the fact turns out to have carried a threat to the states: Set up your own exchanges or your people won't be eligible for subsidies.

Most of us have been thinking of this as (a) a pretty clear indication that such a threat was never included in the ACA and (b) an indication of the chaos the Court will be inviting if it swallows the bullshit, including the possible collapse of insurance markets in affected states. For "Slow Anthony" Kennedy, however, it raised a federal-state constitutional issue of the kind he's known to be sensitive to. Ian Millhiser explains:

[T]he Supreme Court’s first Obamacare decision forbids Congress from coercing states into taking certain actions. If states are forced to choose between setting up their own exchange or watching their individual insurance markets collapse, that could amount to unconstitutional coercion.

Justice Kennedy appeared to believe that it did. There’s “something very powerful” to this coercion argument, Kennedy said, adding that [right-wing bullshitters' shyster Michael] Carvin’s interpretation of the law raises a “serious constitutional problem.” Later in the argument, he indicated that the Court may have an obligation, under something known as the “constitutional avoidance doctrine,” to read the law in a way that does not raise constitutional doubts.

Still, as Ian notes, it's impossible to tell which way Slow Anthony will waddle, since he made it pretty clear that he does swallow the bullshit, and registered assorted doubts about arguments from the non-bullshitters.


WHICH LEAVES CHIEF JUSTICE SMIRKIN' JOHN

Yes, the chief justice was strangely silent, or perhaps not so strangely considering his awkward position as the right-wing thug-justice who saved Obamacare on its first trip through the High Court. He had hardly anything to say during the questioning, until the end, when he took up the suggestion that, if the matter is settled virtue of the considerable leeway allowed the executive branch in interpreting laws it has to enforce, as argued by Solicitor General Verilli, and asked whether "that would indicate that a subsequent Administration could change that interpretation." And the solicitor general agreed that possibly it could.

Jeffrey Toobin finds that question so significant that he titled his post "Did John Roberts Tip His Hand?" "The question suggests a route out of the case for Roberts," he suggests, "and the potential for a victory for the Obama Administration." (Though what kind of victory might still be argued.)

Roberts came of age as a young lawyer in the Reagan Administration, and there he developed a keen appreciation for the breadth of executive power under the Constitution. To limit the Obama Administration in this case would be to threaten the power of all Presidents, which Roberts may be loath to do. But he could vote to uphold Obama’s action in this case with a reminder that a new election is fast approaching, and Obamacare is sure to be a major point of contention between the parties. A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.

How exactly such a vote would affect the ruling is problematic. It's unlike that a majority of the Court would go along with its reasoning. But at the same time, to secure Smirkin' John's vote, on this theory, the ruling couldn't contain any substantive action that the chief isn't willing to sign onto. Which doesn't sound like the most secure endorsement for "subsidies for all."

As noted, Ian Millhiser's post is titled "Obamacare Will Probably Survive Its Second Trip to the Supreme Court." Here's how he sums up his impressions:

[Chief Justice] Roberts . . . famously crossed party lines to uphold the law in 2012. Though his vote is more uncertain, it would not be the least bit surprising if he did so again, this time with Kennedy providing him cover.

Obamacare is not out of the woods yet, and neither are the millions of people who will lose coverage or the thousands who will die if this case goes badly for the government. After Wednesday’s argument, however, those individuals have good reason to be optimistic. At least one of the Court’s Republicans appears to have come to work wearing his judicial robe, and not his partisan hat.

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