Drive-By, SCOTUS Edition

[UPDATE]: This story appears to have legs. Something to keep your eyes on.

Hey, it’s been a while, don’t know if anyone is still reading, but I thought I’d drop in because this seemed important.

There is so much hinky with this entire process, from the (guffaw) “McConnell Rule” keeping President Obama’s pick off the court, to all of the Republicans (*cough*cough*JOHN MCCAIN*cough*cough*) vowing not to seat any of Hillary Clinton’s Supreme Court nominees back when everyone assumed she would win, to all the really serious people who stroked their chins and reminded us that there’s no special reason for nine Supreme Court justices in the first place.

And now this, from the White House Correspondent for NBC News:

Stay strong, peeps. Ever resisting …

You Had One Job, Democrats

I cannot tell you how furious I am to see headlines that use the words “Neil Gorsuch” and “confirmation hearings” in the same sentence.

Neil Gorsuch is getting confirmation hearings that Republicans despicably denied Merrick Garland. That is a fact, and Gorsuch’s nomination is illegitimate. His confirmation will be illegitimate and, if seated, his tenure on the court will be illegitimate. As David Faris wrote,

Gorsuch’s seat was stolen by a craven act of democratic sabotage, and he will always be sitting in a chair reserved for the nominee of a Democratic president. He is illegitimate today, and he will be illegitimate 20 years from now. The fact that he is willing to accept a stolen Supreme Court seat does not speak well of his underlying character. Nicking a Supreme Court seat is not a victimless crime.

Gorsuch is happy to steal a Supreme Court seat. That makes him a thief, and a liar, and a craven political douche canoe who is not worthy of a lifetime appointment on the nation’s highest court. And anyone normalizing this process as if what we all know happened didn’t happen needs to be seriously checked. That goes for every media person and every member of the U.S. Senate pretending Gorsuch deserves to have this hearing. He doesn’t.

So I don’t want to hear about Neil Gorsuch. I don’t care if he’s a brilliant legal mind or a nincompoop. He does not deserve to be there. Period.

I don’t care that he’s a mysogynist who believes women “manipulate” maternity leave. I don’t care that he’s praised voter suppression or hates the environment. I do not give a rat’s ass as to whether he loves his wife or if he supports an independent judiciary.

This seat is not his to fill. The seat belonged to the person President Barack Obama nominated to fill it, before the Republicans invented some fake “rule” about not filling seats in election years. That rule does not exist, no matter who tried to pretend otherwise. Everybody knows it and anyone who says otherwise is lying.

And how the fuck did this happen, Democrats? Who dropped the ball here? We have been saying since the damn 2000 election that the Supreme Court is everything. So how did everyone just fall in line and act like, “Oh, okay, it’s an election year, got it.” How in the living hell did this happen?

What was it? Was it that Democrats were so sure Hillary was going to win that they didn’t want to get dirty fighting this battle? Is that it? What was the thinking here? Did the pending election take all of the air out of the room?

WHAT HAPPENED?

And where were our allies? Where was the Human Rights Campaign, MoveOn.org, the Center for American Progress, the ACLU, Planned Parenthood, and everyone else who is constantly badgering me for money? The Supreme Court is the most important thing in every one of your begging emails yet not one of you people fought for Obama’s pick? Nobody ran an ad on cable news? No one thought to rally the troops, get people to sign petitions, call their members of congress, march on the capitol, none of it?

Words fail that the left dropped this ball. THE most important ball.

Grab The Popcorn, SCOTUS Edition

[UPDATE]:

Mitch McConnell is already saying that “the American people” should have a voice in the selection of the next justice and therefore the replacement should be postponed until after the election.

Told ya so. SO IRONIC! Remember Mitch McConnell in 2005?

“…the Republican conference intends to restore the principle that, regardless of party, any President’s judicial nominees, after full debate, deserve a simple up-or-down vote.”

Meanwhile, President Obama has 340 days left in office — nearly an entire year. The longest confirmation for any current Supreme Court justice was 106 days. I’d say there’s plenty of time to go through this process.

Suck it, Republicans.

———————————————————-

Condolences to Justice Scalia’s family. He leaves a wife and nine children.

And a lovely hole on the Supreme Court just as cases on abortion, immigration, affirmative action and voting rights are about to be heard. Oh, my.

I will bet that Republicans are going to try cook up some kind of “strict constructionist” poppycock to explain why President Obama can’t nominate a new justice right now.

I remember (and have documented) all the times during the Bush Administration that Republicans told Democrats to just shut up and rubber-stamp W’s nominee. There were all the Justice Sunday events to fire up the evangelical activists; there were all the conservative writers who claimed that Bush should get whatever he wants because of “referendum”; and then, hilariously, there was Bill Frist repeating, ad nauseum, that “the president’s nominees deserve an up or down vote!”

That last bit was especially funny because a few years later, Frist’s disgraced staffer Manuel Miranda penned a letter urging Republicans to filibuster Sonia Sotomayor. Oh, the irony.

Republicans have enjoyed a majority on the Supreme Court for over four decades (at least, that’s according to some Yale legal expert on the news right now). I don’t for a second think Republicans aren’t going to try to pull some trick to keep Obama from changing that.

We live in interesting times, indeed.

About Those “Friends” Of The Supreme Court …

In case you wondered about some of those dubious recent Supreme Court decisions, this article sheds some light:

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

Huhn. “Some studies seem to have been created for the purpose of influencing the Supreme Court.” Nobody could have anticipated!

Seriously, is anyone surprised by this? Anyone at all? In a world where everything is manipulated, skewed, twisted, freeped and reshaped to favor one political agenda or another, is anyone shocked to learn that groups have targeted the United States Supreme Court along with every other corner of American civic life?

No, what’s truly shocking is that our esteemed Justices haven’t used, pardon the pun, better judgment when it comes to the sources they cite in their opinions.

For example:

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are an “increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

Good grief.

What’s really horrendous is that, as the article states, folks like Justices Scalia and Alito have criticized their colleagues’ practice of citing facts from amicus briefs in their decisions, yet they themselves do it, too — when it’s convenient for their arguments, of course. In the Hobby Lobby case, Alito….

…[refused] to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote.

… yet in a 2011 decision,

… Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”

What this tells me is SCOTUS justices have already made up their minds about the cases before them and cherry-pick dubiously-sourced “facts” from amicus briefs — or not! — to justify their pre-arrived decision.

This is a horrible thought, because it diminishes America’s highest court in the land to mere Kabuki. That’s a level of cynicism even I never fathomed.

We’re so fucked.

Consequence-Free Sex

It was entirely predictable that right-wing males would act like giant assholes in the wake of the Hobby Lobby ruling; after all, these are the perpetually-aggrieved folks who have felt neutered by “feminazis” since women first demanded the vote.

My favorite response was from Douchebag Emeritus Erick W. Erickson, who tweeted:

And yet, because Hobby Lobby pays for men’s Viagra, that is exactly what this employer is doing: subsidizing consequence-free sex, only just for men. Because, by virtue of biology, all sex for men is consequence-free. It just is. Birth control levels the playing field for women. And it is no surprise that conservative men, whose most unifying feature is an overarching inferiority complex, have been threatened by that since the first cave lady brewed her special cup of herbal tea to keep the babies away. Insecure men will always try to control that which they cannot control. And that’s what we have here.

This, from The New Republic, sums it up thusly:

There’s a reason so many women were outraged on Monday. They saw the decision as yet another attempt to preserve the old double-standard—to dump most of the responsibility for reproductive health and child-bearing on them, in ways that inevitably deter gender equality. With comments like Erickson’s bouncing around cyberspace, it’s easy to see why they had that impression.

Yeah, it’s not an “impression.” It’s called reality.

Religion Is Dead

That will be the upshot of today’s completely outrageous Hobby Lobby ruling. The U.S. Supreme Court has effectively killed religion.

I know, it looks the opposite, but what have I said here a gazillion, bajillion times, folks? When religion gets forced on people by government or corporations, religion always dies. People don’t want this shit foisted on them. As I’ve said a thousand times before, the surest way to kill off religious belief is to declare a “state religion.” The bigger religion’s role in the secular aspects of life, the more people run away from it.

And in this ruling SCOTUS said some corporations can impose the beliefs of some religions on some employees, effectively legalizing discrimination against women and certain religions. If you’re a company owned by Jehova’s Witnesses, sorry, you have to pay for blood transfusions. No out for Scientologists who object to psychiatry and psychiatric drugs. Christian Scientists who don’t believe in most healthcare at all still have to pony up. But if you’re a Christian fundiegelical who believes completely erroneously and incorrectly that IUDs cause abortions — even though they don’t! — you can refuse to offer a healthcare plan covering that form of birth control to your female employees. That’s what SCOTUS just ruled.

The debate wasn’t even really about the Hobby Lobby peoples’ religious beliefs, it was about their completely erroneous, counter-factual scientific beliefs cloaked in religion:

Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, ella (another brand of emergency contraception) and two forms of intrauterine devices because of aforementioned ideologically driven and not medically based ideas about abortion.

“These medications are there to prevent or delay ovulation,” Dr. Petra Casey, an obstetrician-gynecologist at the Mayo Clinic, told the New York Times in a piece on the science behind emergency contraception. “They don’t act after fertilization.” As the Times noted, emergency contraception like Plan B, ella and the hormonal IUD do not work by preventing fertilized eggs from implanting in the womb. Instead, these methods of birth control delay ovulation 0r thicken cervical mucus to prevent sperm from reaching the egg, meaning that fertilization never even occurs. That said, when used as a form of emergency contraception, the copper IUD can interrupt implantation, but this still does not mean a pregnancy has occurred.

This ruling was stunningly ham-fisted on so many levels. In a nutshell, in “going narrow” SCOTUS picked a religion — the fundiegelical Christian kind — over the rights of female employees who may not be of that religion, and also over the rights of every other religion out there. This is going to have repercussions, people — and not good ones for the religious folks. It’s gonna get messy, and I think it’s gonna smack religious people on the ass so hard they won’t sit for a month. Stories like this one are going to ripple across the workplace in every state. It’s a ruling that basically legalized gender discrimination and religious discrimination. When it all shakes down it’s not going to be pretty for the people currently doing a happy dance.

In the meantime, folks calling for a Constitutional Convention to repeal corporate personhood just got a little more ammo.

[UPDATE]: ThinkProgress agrees with me.

[UPDATE] 2: Charlie Pierce at Esquire also agrees with me. SCOTUS just perpetrated an act of religious discrimination while professing to do the opposite. WTF is up with that, people?

Elections 4 $ale

I’m trying not to be too upset about SCOTUS’ ruling lifting the cap on individual campaign contributions. I mean, think about it: if money alone could decide an election, we’d have President Gingrich and Vice President Adelson today.

Trust me, I’m not thinking this is a good thing by any means. But let’s be real, the rich are not our betters, nor are they necessarily any smarter than anyone else. I just trotted over to OpenSecrets.org and got a look at Lee and Kelly Beaman’s latest campaign contributions. Here I found they both donated generously to Liz Cheney’s aborted senate campaign — not exactly a smart investment, since any idiot knew she wasn’t going to go the distance — as well as the notorious Palin grift vehicle known as SarahPAC. Now that we know they can just keep on giving, maybe these folks will all be bankrupt before too long. Fools and their money, after all.

The place this is really going to hurt, I think, is on things like ballot initiatives and local elections. Because even though this ruling only applied to federal elections, I have to wonder if states aren’t going to do away with their own restrictions now. Seems like a few have already tried.

But you know, here’s the thing: Congress could pass a law. They could say that corporations aren’t people and money isn’t speech and all of that other stuff. They could pass a law saying all federal elections have to be publicly financed. They won’t, but they could, if we elect the right people. So elections do matter.

Also, you know who the big beneficiary of this is, right? The corporate media. All of those campaign contributions run straight into their coffers, most of them at least. That explains a helluva lot, don’t it?

Gotta think the Founding Fathers are rolling over in their graves right now, though. If money is speech, the poor are voiceless. Is that your vision of America? Shameful.

First Draft Tuesday

Sandra Day O’Connor has some regrets. Welcome to our world.

Memory Hole: ACA Edition

And the early reports are in: the entire healthcare law, including the individual mandate, has been upheld. The only exception is the federal government’s right to terminate state Medicaid funds.

Suck on that, Ginni Thomas.

———————————–

Nothing to see here, move along:

Justice Thomas’ wife says healthcare law is unconstitutional

Virginia Thomas is working to repeal the law through Liberty Central, a conservative group she founded. Her husband, Justice Clarence Thomas, could provide a key vote to strike down the law.

October 21, 2010|By Kathleen Hennessey and David G. Savage, Tribune Washington Bureau

Reporting from Washington — Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, is working to repeal what she believes is President Obama’s “unconstitutional law” regulating health insurance, an issue likely to be decided by the high court.

“With the U.S. Constitution on our side and the hearts and minds of the American people with us, freedom will prevail,” says a position paper posted on the website of Liberty Central, the group formed by Virginia Thomas this year to advance conservative principles and candidates.

The story goes on to talk about the most important issue of the day: Ginni Thomas’ phone call to Anita Hill. Well done, media.

Memory Hole: Rep. Jim Cooper On SCOTUS

While we’re all waiting for the Supreme Court to issue its ruling on the Affordable Care Act, I remembered Rep. Jim Cooper touched on this at our blogger meet-up back in January. I revisited the recording which Sean Braisted posted and threw up a quickie transcript, because I thought you guys would be interested. Cooper of course is a Democrat and he voted for the ACA, and he also teaches a course in healthcare policy at Vanderbilt University.

Here were his thoughts on SCOTUS and the healthcare bill (and if you listen to it at Braisted’s place it starts around the 14 minute mark, I think…):

This is an amazingly important moment in America and hopefully it won’t be a Bush v Gore case where they make a totally political … the court needs the credibility when they’re deciding things according to the law. If they were to overturn the individual mandate that would be getting rid of eight years of Commerce Clause precedent. Now it is true before the New Deal that they had a much narrower view of government. But ever since the New Deal it’s been settled, Republican judge, Democratic judge, Commerce Clause is broad. If they were to suddenly narrow that, they’d be taking America to the 1920s.

And then for them to roll back Medicaid coercion? That would be astonishing. We would lose highway programs, we would lose tons of stuff. So what I have trouble helping people understand is, they think John Roberts, he’s conservative, Alito, he’s conservative, Scalia we know he’s conservative, and Thomas … what they don’t understand how they’re radical conservatives. Like, this idea that corporations are people? That is crazy. That is absolutely, flat-out crazy.

Some interesting headlines have hit the papers lately on the “what ifs” of the pending SCOTUS decision. (The funniest so far, hands-down, has to be Indiana Senate candidate Richard Mourdock, who accidentally posted all of his possible responses on YouTube before his team had a collective woopsies.)

Constitutional scholars seem to be of a like mind with Rep. Cooper, noting the court will lose all credibility if it overturns the individual mandate because it will so obviously be a political not legal decision.

Via Ezra Klein we have Yale constitutional law scholar Akhil Reid Amar noting:

“I’ve only mispredicted one big Supreme Court case in the last 20 years,” he told me. “That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”

Well, um, duh. Welcome to the world. Seems to me we’ve been headed down that pathway since the mid-90s. Where’ve you been, buddy?

Also from the Ezra link, here’s Kevin Drum (not a constitutional scholar, but whatever):

Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

Again, what rock have you guys been living under? If even my Blue Dog congressman sees the radicals on the bench for what they are, what the heck is wrong with you pundits and scholars?

Ezra says SCOTUS has always been political and I’m not sure that’s the case, certainly not the level we see today. But as I noted back in March it does have a long history of making really crappy decisions like, for instance, Buck v Bell.

(h/t Kay at Balloon Juice)