In which SCOTUS agrees with FDR

Today the Supreme Court ruled on compulsory government sector union fees, recognizing such fees as a First Amendment issue about compelled political speech. To summarize:


States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to sup- port the union before anything is taken from them. Accordingly, nei- ther an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

This opinion essentially agrees with that of famous Progressive Franklin Roosevelt:

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

There is no such thing as a “public-sector” union. There are government unions, of which the public is the employer, where bureaucrats “negotiate” among themselves, and a third party payer is stuck with the results.

When you name such unions “government unions”, it’s much easier to understand that government “management” and government “labor” have common goals and the employer doesn’t even have a seat at the table.

Antonin Scalia RIP

He will be sorely missed. He did leave us some advice:

It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.
United States v. Virginia (1996)

We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters – any matters – are none of its business.
Sosa v. Alvarez-Machain et al., 542 U. S. 692 (2004)

Now the Senate is looking for ‘moderate’ judges, ‘mainstream’ judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?
Address to Chapman University students (2005).

His death heightens the danger to our Republic in an already dangerous time.

Our lame-duck President knows any appointment he makes should be blocked in the Republican Senate. This means he will make the most outrageous political selection he can imagine. He will rejoice in the spectacle of confirmation hearings in the midst of a presidential election. He will accuse the Senate of not doing its job. He will invoke a vast array of straw men calculated to promote division by race, class and sex. He may threaten some sort of bizarre Executive Order.

Nonetheless, if we are to have a Justice who will support overturning Citizen’s United and Heller – chipping away at the 1st and 2nd Amendments – let him at least be the appointee of a Sanders, Clinton or Trump.


King v. Burwell and the Law

Emphasis mine.

[Chief Justice Roberts] makes a much broader argument about the relationship between the vague, broadly stated aims and purposes of legislators and the role of judges interpreting the meaning of the particular laws those legislators then write…”

Obamacare is [to the Chief Justice] not so much a particular law as an overarching desire “to improve health insurance markets” and so if at all possible it should be taken to mean whatever one believes would be involved in doing so…

This understanding of the role of the judge threatens to undermine the rule of law in the American system of government, because it undermines the central place assigned to written law, and to the legislator, in that system… While it would seem to suggest that the will of the legislator should guide the system, in fact it means that the word of the legislator does not govern the other branches. It implies that Congress should have just passed a law that said “health insurance markets shall be improved,” and then left it to the executive agencies to decide how they wish to do that…

Roberts’s argument… suggests that when a law as written would be likely to have practical consequences at odds with the broadly asserted intent of its authors, judges should interpret it to have a meaning more likely to achieve that desired goal…

The health-care debate, in the context of which this case might originally have been understood, will continue because what Justice Roberts insists is impossible is true: Obamacare is a law that was intended to improve insurance markets but was designed in a way that will actually harm them. We can only hope that debate will ultimately be resolved in a way that also pushes back against the unexpected implications of this case and this decision by reasserting the supremacy of the law.

Read the whole thing.

The Chief Justice has twice approved the government takeover of one-sixth of the American economy. Now he’s concerned about disrupting “markets?” He expresses that concern by elevating “intent” above the rule of law?

Obamacare, passed using procedural chicanery, by a single party whose members hadn’t read it, was intended to dupe the American people. With John Roberts it succeeded beyond Jon Gruber’s wildest dreams. Gruber laughed about the “stupidity” of the American voter. He must be guffawing about John Roberts.

The “law,” whatever it turns out to be after the next executive order or SCOTUS interpretational creativity, should hereafter be known as SCOTUScare.

They had good intentions

That is how Chief Justice John Roberts justified Obamacare:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
-Chief Justice John Roberts, author of the SCOTUS decision in King v. Burwell

There are good reasons to believe this decision will neither improve health care markets, nor avoid destroying them. The majority decided this case based on their perception of the intent of Congress, despite compelling evidence to the contrary.

  1. The intent of Democrats in Congress – the only people who voted for it – cannot be known in this regard since they did not read the Bill.
  2. Jonathan Gruber, the main government architect of the law, says the intent was to fool the American people. And, specifically, by forcing the States to participate or lose the subsidies.
  3. Obamacare has utterly failed to improve insurance markets. It has made insurance companies rich, at great cost to the people.
  4. An argument advanced by those who passed the Bill is that Obamacare is intended to further the destruction of the “market,” so as to institute a government run single-payer system akin to that of Canada.

Justice Roberts, and his 5 comrades, have severely damaged the rule of law.

Largest tax hike in world history

The Obamacare health insurance mandate is unconstitutional according to SCOTUS:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority:

But, says John Roberts, it’s OK if you think of it as a tax hike instead. So, SCOTUS just passed the biggest tax hike in all of time, in the middle of a severe economic downturn. Talk about judicial activism.

Whatever happened to paying heed to the intent of the legislators, who roundly denied the mandate was a tax, going so far as to eschew the word entirely in a 2,000 page bill?

Unintended consequences

Health Care and the Dynamics of Intervention

“We have a crisis! We have to do something!” Actually, what we have to do is undo a lot of things.

Every time I hear some dunderhead complain that the General Government needs to control “x” because otherwise it will cost the General Government too much to continue providing x — and especially x’s new extension, “y” — I think of all the reasons the Founders never intended the General Government to be involved in whatever “x” is in the first place. It’s why the powers are enumerated: You don’t get to grant yourself an interest in something so you can gradually take it over by complaining about the results of your own actions.

As it is, the General Government is free to cause the problem, and the “fix” is always to take more liberty from individuals. It’s 55mph speed limits, or “We won’t give you money for roads.” It’s our money in the first place. If we weren’t compelled to send it to them, they couldn’t extort us with it.

The Founders didn’t have to imagine all the ways in which these problems could be created, (they couldn’t have imagined the need for a 55mph speed limit, nor Obamacare) all they had to do was recognize the universal tendency of governments over the course of centuries. The Constitution is NOT a “living document.” Mostly, that holds because we’ve learned nothing about power and corruption. We keep electing the practitioners, and it’s our fault for not holding them to the contract of the Constitution.

Why not Harriet Miers?

Sonia Sotomayor will be the new Supreme Court Justice.

Here’s a sentence I never imagined I’d write: Jennifer Granholm would have been preferable.

This appointment does not stoop – quite – to the level of Dubya’s nomination of Harriet Miers in one sense: Sonia Sotomayor is not an immediate crony of Barack Obama’s. It does share some characteristics, however. Sotomayor is hardly the most qualified appointee. Sotomayor is a female.

Otherwise, it is a much worse appointment. While it avoids a dubious, even reckless, emphasis on personal loyalty, it is solely political pandering. Personal loyalty is no reason to nominate a person as a Justice of the Supreme Court, calculated cynicism is not a justification for anything.

Live by identity politics. Rise through identity politics. Sotomayor will be confirmed, but there is some fun to be had with the prospect. Two questions decided by Sotomayor as a judge on the U.S. Court of Appeals for the Second Circuit are currently on the docket of the Supreme Court.

Ricci v. DeStefano, is a reverse discrimination case summarily, actually insultingly, rejected in an opinion joined by Ms Sotomayor. This article is worth reading in full. Here’s a significant bit, but there’s more good stuff at the link:

…firefighters in New Haven, Conn., who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to management ranks within the fire department. They made special efforts to design a test process that would reduce any bias that might disadvantage minority candidates.

But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test.

It should be noted that Frank Ricci is dyslexic and prepared for the test by studying 8 or more hours every day. He spent over $1,000 on books and tutoring.

This decision of Judge Sotomayor’s is particularly interesting given her ruling in Bartlett v. New York State Board of Law Examiners that a law school graduate with a reading and learning disability was entitled to extra time in taking bar exams. On appeal, the Supreme Court ruled that the Americans With Disabilities Act did not apply because Bartlett’s condition could be managed with glasses and medication. Ordered to retry the case, Sotomayor rejected the SCOTUS opinion, coming to the same conclusion she had made earlier.

The plaintiff was Dr. Marilyn J Bartlett. Her bio is here, these are the degrees listed:

  • B.S., State College at Worcester, Massachusetts, in Early Childhood Education -1970;
  • M.S.Ed., Boston University, Boston, Massachusetts, in Special Education -1976;
  • Ph.D., New York University, in Organizational and Administrative Studies -1982;
  • J.D., Vermont Law School -1991

Dr. Bartlett attempted the New York State bar exam 5 times and claims she was never given appropriate “accommodation.” One wonders if she was simply a Disability Advocate looking for trouble and how much accommodation her degrees required (beyond glasses and medication). She is said to “decode” at a 4th grade level. Whatever that means, it doesn’t sound like she could get a Ph.D, without studying a lot and probably with a great deal of assistance. I wonder if she paid for the assistance?

Judge Sotomayor wrote:

“Marilyn Bartlett suffers from a learning deficit that evinces itself as a difficulty in reading the speed, fluency, and automaticity of an individual with her background and level of intellectual ability. Despite this impairment, plaintiff obtained a Ph.D. in educational administration and a law degree. By virtue of superior effort and not a
small amount of courage, Marilyn Bartlett has been able to succeed academically and professionally despite the limitations that her impairment has placed upon her.

There’s no information on what level Frank Ricci “decodes,” but asking him about Sotomayor’s empathy might produce an interesting response. Maybe if he’d gotten a Ph.D. first…

The second case, Croll v. Croll, presents the same question as Abbott v. Abbott (the case presently before SCOTUS). These cases are about child custody and involve interpretation of the Hague Convention on International Child Abduction. Judge Sotomayor dissented from the opinion of the Second Circuit, citing the manner in which foreign courts had interpreted the question.

Judge Sotomayor argued that a broader interpretation of “custody” was more in line with the “object and purpose” of the Convention, and that this was how foreign courts had considered the issue.

Perhaps judge Sotomayor will score with this one. Not, I suspect, with Justice Scalia, however.

In other news,

Sotomayor asserts (Maloney v. Cuomo) that the Second Amendment only applies to the federal government. In so doing she explicitly rejected District of Columbia v. Heller, preferring earlier SCOTUS decisions (Presser v. Illinois, 1886) to underpin her decision. Here, she appears willing – again – to overrule SCOTUS. This case appears likely to be appealed. It will bring the incorporation clause of the 14th Amendment into focus if SCOTUS takes it.

The Supreme Court reversed Judge Sotomayor in Malesko v. Correctional Services Corporation

And overturned her decision in Entergy Corp. v. Riverkeeper, Inc.

On the two Sotomayor cases presently before SCOTUS, you might think delaying a decision on them would be preferable to the Obama administration so that Sotomayor might not be embarrassed by being overturned twice more while confirmation hearings are in progress. OTOH, you would think (wouldn’t you?) that she will have to recuse herself if she is confirmed before these cases are determined. This would seem to increase the likelihood she’ll be overturned while a sitting Justice.

G. O. P. 5

Credit where it is due: Obama Administration opposes challenge to 2nd Amendment rights.

March 9 (Bloomberg) — The U.S. Supreme Court left intact lower court decisions shielding Smith & Wesson Holding Corp., Sturm, Ruger & Co. and other gunmakers from lawsuits pressed by New York City and shooting victims in Washington, D.C.

…President Barack Obama’s administration joined the gun industry in urging the Supreme Court not to question the constitutionality of the 2005 law, known as the Protection of Lawful Commerce in Arms Act. Like the Bush administration, Obama’s lawyers didn’t take a position on whether the federal law required dismissal of the lawsuits.

RTWT, it is interesting to know the origins of this suit. Hint: Giuliani Opposes Pistols.

Code word for socialism

It’s not just a gaffe in an answer to Joe the Plumber. It’s an Obama core principle. Saying so is racist, of course, because if socialism is a “code word,” so must redistribution be, especially in the context of the Civil Rights movement – which Obama uses to begin a riff on his disappointment that the Supreme Court didn’t mandate looting under the “forced equality” protection clause, as established in Bergeron vs Glampers.

In case you didn’t get that…

It [the Warren Court] didn’t break free from the essential constraints that were placed in the Constitution by the Founding Fathers … it [the Constitution] doesn’t say what the federal government or the state government must do on your behalf

Oh, but it does. It enumerates the powers precisely. They don’t include redistribution of wealth but, according to Obama, that Founders’ oversight is what’s been wrong with America for over 200 years. He’ll fix it by helping us “break free” from Constitutional law. It seems to hinge on how you interpret “essential,” or maybe “constraints.” Must be code words.

I’m waiting to hear how he’s going to reconcile that position with this:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Barack Obama: Change you Hope never to see.