The Commentariat -- June 26, 2015
Internal links removed.
** Adam Liptak of the New York Times: "In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a nationwide right to same-sex marriage. Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court's four more liberal justices.... Chief Justice John G. Roberts Jr., in a dissent joined by Justice Antonin Scalia and Clarence Thomas, said the Constitution has nothing to say on the subject.... In a second dissent, Justice Scalia mocked Justice Kennedy's soaring language. 'The opinion is couched in a style that is as pretentious as its content is egotistic,' Justice Scalia wrote of his colleague's work. 'Of course the opinion's showy profundities are often profoundly incoherent.'" CW: Not sure where Alito is supposed to be here, but clearly he joined one dissent on the other. ...
... Okay, here's the answer from Robert Barnes of the Washington Post: "All four of the court's most conservative members -- Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- dissented and each wrote a separate opinion, saying the court had usurped a power that belongs to the people." ...
... The opinion & dissents are here.
... Here is some of the more incendiary language from Scalia's dissent (I typed descent first -- seems appropriate).
... Nick Gass of Politico: "The Supreme Court on Friday ruled 5-4 that same-sex couples nationwide have the constitutional right to marry, splitting the 2016 candidates sharply along partisan lines. Democratic candidates hailed the decision as another marker for equality, while Republican candidates reacted with disappointment and, in some cases, white-hot anger. ...
... The Washington Post is liveblogging reactions to the Court's marriage ruling. Some of the corporate responses are pretty sweet. ...
... Michael Rosenwald of the Washington Post: "The craziest thing just happened to Jim Obergefell: He became a civil rights icon. The real estate broker from Cincinnati was the lead plaintiff in the historic gay marriage case.... Obergfell is unlike the other plaintiffs in the case: He doesn't get to go home and celebrate with his loved one. His husband, John, died from ALS. They were wed on the tarmac of Baltimore-Washington International Thurgood Marshall Airport, flying there because they couldn't get married in Ohio."
Doug Palmer of Politico: "The House voted 286-138 Thursday to renew a 50-year-old worker entitlement program with overwhelming support from Democrats, who reversed themselves on the legislation after losing a battle with the White House and Republicans over a bill to 'fast-track' approval of the Trans-Pacific Partnership agreement.... The vote sends the bill to President Barack Obama to sign into law." (Also linked yesterday afternoon.)
Michael Shear of the New York Times: "... on Thursday, [President] Obama walked into the Rose Garden to accept vindication as the Supreme Court, for a second time, affirmed the legality of a part of the Affordable Care Act. Mr. Obama ... called for an end to the vitriolic politics that have threatened it. 'The point is, this is not an abstract thing anymore,' Mr. Obama told reporters, with Vice President Joseph R. Biden Jr. smiling broadly beside him. '... For all the misinformation campaigns, all the doomsday predictions, all the talk of death panels and job destruction, for all the repeal attempts -- this law is now helping tens of millions of Americans.'... [Meanwhile,] House Speaker John A. Boehner, Republican of Ohio, promised to 'do everything we can' to undermine the law. Jeb Bush, a Republican candidate for president, vowed 'to repeal and replace this flawed law' if he succeeds Mr. Obama in the Oval Office'":
... Paul Krugman: "... what you have is a portrait of policy triumph -- a law that, despite everything its opponents have done to undermine it, is achieving its goals, costing less than expected, and making the lives of millions of Americans better and more secure..... What conservatives have always feared about health reform is the possibility that it might succeed, and in so doing remind voters that sometimes government action can improve ordinary Americans' lives.... That's why the right went all out to destroy the Clinton health plan in 1993, and tried to do the same to the Affordable Care Act. But Obamacare has survived, it's here, and it's working. The great conservative nightmare has come true. And it's a beautiful thing." ...
... Linda Greenhouse: "The chief justice’s masterful opinion showed [Justice Scalia's] line of argument for the simplistic and agenda-driven construct that it was.... The chief justice cited two [pro-ACA] briefs in his opinion, one from the health insurance industry and the other, which he referred to several times, from the country's leading experts on the economics of health care. This whole exercise was unnecessary, the outcome too close for comfort. But there is cause for celebration in a disaster narrowly averted -- for the country and the court, which is to say, for us all." CW: Greenhouse also echoes what I wrote yesterday about the Supremes' decision to hear King v. Burwell & about Scalia's previous opinions asserting that context matters." ...
... Rick Hasen: The Court's "means of interpretation is important for a number of reasons. First, it means that a new administration with a new IRS Commissioner cannot reinterpret the law to take away subsidies. Second, it puts more power into the hands of Congress over administrative agencies (and therefore the executive), at least on issues at the core of congressional legislation. Third, and most important as a general principle, it rehabilitates a focus on the law's purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.... The Court said that in close cases, make the law work the way Congress obviously intended it. That's a very good thing."...
... Cass Susstein in Bloomberg: "Roberts's impressive opinion ... is a masterwork of indirection. It's already being seen as a final vindication of Obamacare. But it is also a strong assertion of the court's, and not the executive branch's, ultimate power to say what the law is." ...
Brian Beutler of the New Republic: "The ruling thus combines a standard textualist mode of interpretation -- a view to the statute's full context to determine the meaning of isolated provisions -- with a common sense analysis of the law's structure into a mode of interpretation you might call heurism.... The opinion the Court actually wrote turns out to be perfectly stitched. A victory for the government, and little succor for Obamacare foes, which is exactly as it should be." ...
... CW: Beutler misunderstands the meaning of textualism -- in legal theory, it means nearly the opposite of Beutler's definition; ergo, in King, the Court specifically rejected Scalia's narrow textual interpretation (a/k/a Moops theory). But Beutler is right about the far-reaching -- and remarkable -- heuristic approach the majority took to resolving the ambiguity of the text in question when it looked to the purpose of the law, as Hasen outlines." ...
... ** Roberts Burns Congressional Republicans. Ryan Cooper of the Week: "Roberts' clear account of ObamaCare's policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years -- in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster." ...
... Steve M. has a couple of theories about why Roberts & Kennedy decided to uphold the ACA: First, they probably believed initially that "the Republican majorities in Congress would have a remedy ready to avert chaos." But when they realized Republicans were never going to do any such thing, they changed their minds. Also, too, "The preservation of Obamacare by the Roberts court does a couple of things for the GOP for 2016: It preserves Obamacare as a voter-motivating grievance for the party's base, and it makes it much more difficult for Hillary Clinton (or Bernie Sanders or whoever) to say that the Supreme Court is a force for wingnuttery that will only get worse if a Republican is elected president next year." ...
... CW: Following Cass Susstein's lead, I'd add that Roberts also used the opinion to enhance the power of the judiciary at the expense of the executive branch. That is, Roberts wrote that an executive agency -- at least in this case -- does not have the power to decide how to interpret ambiguous or contradictory legislative language unless Congress specifically gives them the authority to do so in a sort of "hey, whatever" provision.
..."Roberts Burns Scalia." Max Ehrenfreund of the Washington Post: "Roberts used the dissent's ;own words against Scalia.... Back in 2012, [Scalia] had written that without subsidies, 'the exchanges would not operate as Congress intended.'" Roberts cited Scalia's dissent in his majority opinion. "It's not the first time a dissent by Scalia has been used to support a view he opposes. His dissent against gay marriage has been widely cited by lower courts arguing that bans on same-sex unions are unconstitutional." ...
... CW: As Greenhouse & I noted, Roberts cited other Scalia opinions in his majority opinion in King. It appears Roberts is tiring of an obnoxious junior colleague who continually berates & belittles everyone who disagrees with him & whose own arguments are not just rude but inconsistent. Scalia makes both conservatism & the Court look stupid and/or batty, & that surely displeases the chief justice. ...
... Juliet Eilperin & Robert Barnes of the Washington Post: "President Obama and Chief Justice John G. Roberts Jr. got off to a rough start from the very beginning.... They occupy nearly opposite ends of the ideological spectrum.... But in Thursday’s Supreme Court decision upholding federal subsidies offered under the Affordable Care Act, Roberts again helped sustain the president's policy legacy in a way that few could have anticipated when Obama took office. In voting with the majority and writing the opinion, the chief justice has ensured that the legacies of both the Obama presidency and the Roberts court are forever intertwined." ...
... CW: They had better get along. Unless he doesn't want the job, I would be surprised if President Hillary didn't nominate President Obama to the Supreme Court. ...
... George Will: Chief Justice Roberts is overthrowing the Constitution! The separation of powers is defunct! No more due process! ...
... Josh Gerstein of Politico: [Chief Justice] "Roberts' decision to side with the Obama administration for a second time on the high-profile health care law threw a huge splash of fuel onto a long-simmering debate about whether Republicans misjudged the chief justice when he was nominated a decade ago or whether he has grown more moderate in his years on the court -- a phenomenon many conservatives complained about with earlier Republican appointees such as Justices David Souter, Sandra Day O'Connor and John Paul Stevens. ...
... Sahil Kapur & Dave Weigel of Bloomberg report more confederate invective hurled at Roberts. ...
... Noam Levey of the Los Angeles Times: "With no serious Republican alternatives and a historic expansion in medical coverage well underway, Obamacare is about as firmly ensconced as a new law can be in a politically divided country." ...
... Manu Raju & Burgess Everett of Politico: "As Republicans process Thursday's sharp rebuke at the hands of the Supreme Court, they're struggling with what to do next -- beset by internal divisions and procedural roadblocks that severely limit their options." ...
... Over there at the Blaze, Glenn Beck's Website, Wayne Root asks, "Has Supreme Court Justice John Roberts been blackmailed or intimidated? I would put nothing by the Obama administration that lives and rules by the Chicago thug playbook." CW: Yeah, that was my first thought, too, Wayne. After all, ...
... The Washington Post Editors label me -- & a lot of other people -- cynical conspiracy theorists.
In all the excitement over King, Charles Pierce wants us to remember that Roberts joined the crazies in the Texas housing anti-discrimination case also decided yesterday. Because Jewish & Muslim (Moops?) doctors in the 17th-century Ottoman palace.
Al Kamen of the Washington Post: "The National Park Service moved Wednesday to stop sales of the Confederate flag in federal parks...." (Also linked yesterday afternoon.)
Looks as if Republicans are in disarray about more than ObamaCare. Jake Sherman & Anna Palmer of Politico: Oversight Committee Chairman Jason Chaffetz (R-Utah) has reversed his "decision to strip North Carolina Rep. Mark Meadows of his subcommittee gavel. Top Republicans had wanted to punish Meadows for voting against GOP leaders and not supporting the party's campaign arm.... The reversal infuriated loyalists to [Speaker John] Boehner.... 'Disgusting,' one Boehner ally remarked.... It is a stunning reversal for Chaffetz -- and, by extension, the GOP leadership -- and could embolden the several dozen conservative Republicans who defy Speaker John Boehner, Majority Leader Kevin McCarthy (R-Calif.) and Majority Whip Steve Scalise (R-La.)." Seems Chaffetz didn't know the House GOP rule that requires committee chairs to have the support of a majority of Republican committee members before they can remove a subcommittee chair.
Stephen Ohlemacher of the AP: "Investigators are blaming mistakes by IRS employees -- not a criminal conspiracy -- for the loss of thousands of emails related to the tax agency's tea party scandal. IRS workers erased 422 computer backup tapes that 'most likely' contained as many as 24,000 emails to and from former IRS official Lois Lerner, who has emerged as a central figure in congressional investigations, according to IRS's inspector general."
Felicity Barringer of the New York Times: "From the Arabian Peninsula to northern India to California's Central Valley, nearly a third of the world's 37 largest aquifers are being drained faster than they are being replenished, according to a recent study led by scientists at the University of California, Irvine. The aquifers are concentrated in food-producing regions that support up to two billion people."
Presidential Race
Michael Schmidt of the New York Times: "Despite claims by Hillary Rodham Clinton that she gave the State Department all of her work-related emails from the personal account that she used exclusively when she was in office, the department said on Thursday that it had received several related to Libya that she had not handed over. The disclosure is the first significant evidence to raise questions about whether Mrs. Clinton deleted emails from the account that she should have given to the State Department because they were government records. The State Department said that in comparing emails from Sidney Blumenthal, a confidant of Mrs. Clinton's, to the ones she gave to the department, officials could not find nine and portions of six others."
John DiStaso of WMUR, Manchester, New Hampshire: "Clinton leads Sanders, 43 to 35 percent, in a new WMUR/CNN Granite State Poll, which was conducted ... from June 18 to 24. The poll included 360 likely 2016 Democratic primary voters and has a margin of error of 5.2 percent, meaning Sanders is close to being in a statistical dead heat with the frontrunner." ...
... Arit John of Bloomberg: "Democratic presidential candidate Bernie Sanders on Thursday responded to criticism from his Senate colleague, Claire McCaskill of Missouri, that he is too liberal to credibly challenge Hillary Clinton. 'To the best of my knowledge, this is the first time that a colleague has attacked me,' said Sanders...." ...
Jonathan Topaz & Daniel Strauss of Politico: "All jokes aside, the Republican Party is officially afraid of Donald Trump. He has virtually zero chance of winning the presidential nomination. But insiders worry that the loud-mouthed mogul is more than just a minor comedic nuisance on cable news; they fret that he's a loose cannon whose rants about Mexicans and scorched-earth attacks on his rivals will damage the eventual nominee and hurt a party struggling to connect with women and minorities and desperate to win." ...
... Ja Ja Ja Ja Ja Ja Ja. Alan Rappeport of the New York Times: "Univision[, the Spanish-language network] said that it was ending its relationship with the Trump Organization, that it will not air the Miss USA pageant on its network next month, and that it is severing ties with the Miss Universe Organization. [Donald] Trump is a part owner of the Miss Universe Organization, the umbrella group for both the United States and world beauty pageants. Univision said the decision was because of Mr. Trump's recent remarks about Mexican immigrants." (Emphasis added.) ...
... Mark Hensch of the Hill: "The Chilean actor scheduled to host this year's Miss USA pageant is quitting over GOP presidential candidate Donald Trump's remarks on Hispanic immigrants. Cristian de la Fuente, who performs on the television series 'Devious Maids,' said on Thursday he is abandoning his role in the annual beauty competition.... Trump countered on Thursday that Fuente was not the host of next month's Miss USA event."
Beyond the Beltway
Jennifer Medina of the New York Times: "Under a bill expected to be approved Thursday by state lawmakers, schoolchildren in California will be required to receive vaccinations unless there is a medical reason not to do so. The bill would end exemptions for personal or religious reasons, which parents who oppose vaccinations routinely request. The legislation would make California the largest state by far with such sweeping requirements for vaccinations, joining West Virginia and Mississippi, which have had similar laws for years." (Also linked yesterday afternoon.)
Erik Eckholm of the New York Times: "A Kansas state judge on Thursday temporarily blocked a new law that would have banned the most common method of abortion in the second trimester. The law, adopted in April and the first of its kind in the nation, would have barred a method known as dilation and evacuation, which doctors say is usually the safest and most convenient abortion technique after about the 12th to 14th week of pregnancy.... The suit, brought on behalf of two Kansas obstetricians by the Center for Reproductive Rights, based in New York, argued that the law amounted to illegal interference with the right to abortion and could force some women to undergo an 'invasive unnecessary medical procedure even against the medical judgment of her physician.'"
Southern Poverty Law Center: "In a landmark victory, a state jury in New Jersey found today that a 'conversion therapy' program offering services it claimed could change clients from gay to straight was fraudulent and unconscionable. The jury ordered JONAH (Jews Offering New Alternatives for Healing), the group's founder and a counselor to pay $72,400 to compensate five plaintiffs for fees they paid to the group and for mental health counseling one of the plaintiffs needed afterward." The SPLC filed the suit.
Sarah Kaplan of the Washington Post: "A fire that engulfed a small, predominantly black church in Charlotte[, North Carolina,] was set on purpose, local officials said Wednesday. Now they are trying to determine whether the act of arson was a hate crime." (Also linked yesterday afternoon.)
The Abstinence News. Dan Savage: "Single Christian lady Bristol ... Palin is pregnant again. This will be Bristol Palin's second child. This one is either by her second ex-fiance or some poor man to be named later.... If Bristol Palin's last name was 'Obama' the whole Hee Haw gang at Fox News would spend half of every day for the next nine months telling us that Bristol Obama has terrible parents.... Bonus thing: you have to watch Bristol Palin's abstinence ed PSA...."
News Ledes
New York Times: "Terrorists attacked sites in France, Tunisia and Kuwait on Friday, leaving a bloody toll on three continents and prompting new concerns about the spreading influence of jihadists. In France, attackers stormed an American-owned industrial chemical plant near Lyon, tried unsuccessfully to blow up the factory, and left behind a decapitated corpse. In Tunisia, at least one gunman disguised as a vacationer opened fire at a beach resort, killing at least 37 people before security forces shot him to death, officials said. And the Islamic State claimed responsibility for a suicide bombing in one of the largest Shiite mosques in Kuwait City during Friday prayers."
New York Times: "The Vatican on Friday signed a treaty with the 'state of Palestine,' a development that the church hopes will lead to improved relations between Israel and the Palestinians."