In a few hours the Supremes will announce the ACA finding. Unless you've been living under a rock with no WiFi access, you know they'll either leave the ACA as is, leave it pretty much intact but remove the individual mandate or reject the law in sum toto. It won't be the end of things, because there will be legislative action no matter what happens, and there are other cases winding their collective way back to the Supremes.
While these things normally hinge on Anthony Kennedy, today is actually John Roberts' day. As Chief Justice, his legacy is already Citizens United and AZ SB 1070, but this is the decision that will forever mark "The Roberts Court". It will be his legacy for all time if he allows millions of people to suffer, and thousands to die, because of the action of "his" court.
The Progressive Caucus already has 75 co-signers on a bill ready to go that would create "Medicare for All" AKA Single Payer. Many politicians and groups are ready with responses to all three potential outcomes, although the best came from Stephen Colbert.
But no matter what happens, there is a greater truth, and it's about what has happened to America in the last three years. Aaron Sorkin nails it in the first episode of The Newsroom, with the line "talk truth to stupid". If you haven't seen it, you really should. If nothing else, watch this clip, and you'll see what the real problem is, and why whatever the Supremes decide, it won't solve the problem.
If you were following the questioning yesterday, it leads to the conclusion that SCOTUS will take up the substantive issues of the Affordable Care Act (ACA) instead of putting it off until 2014. In case you're keeping score, 8 justices peppered the lawyers with a lot of questions, while Clarence remained, as always, silent. Except, I'm sure, he is still saying "thanks" to his corporate Big Pharma sponsors.
The frame for today comes from Jeffrey Toobin, who raises a more global question:
Monday was only the first of three days of scheduled arguments. The subject for Tuesday is whether the individual mandate—the requirement that individuals buy health insurance, and the heart of the law—is constitutional. In the procedural discussion Monday, there were a few hints about the way that argument might pan out. The Obama Administration has offered several rationales supporting the constitutionality of the law. One of them posits that the A.C.A. is authorized by Congress’s power to tax under Article I of the Constitution. Three Justices—Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito—expressed some skepticism about that theory today. As Alito said to the Solicitor General, Donald Verrilli, “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”
The Court’s skepticism about the taxing power argument is understandable. The real justification for the A.C.A.is the same one that Congress has used for virtually all economic regulation since the New Deal: the Commerce Clause of Article one, Section eight of the Constitution, giving Congress the power
To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes
Medicare, Medicaid, not to mention the minimum wage—all have been passed, without constitutional controversy, under the authority of the Commerce Clause. To me (and most others, I am willing to bet), the A.C.A. is fairly straightforward and uncontroversial application of this longstanding power. To rule the A.C.A. outside the power of Congress would be a dramatic change in the powers of the federal government.
I wonder if the justices realize how far reaching a "no" decision would be to all sorts of government programs. And I wonder if people who have never gone without health insurance, without health care, will be able to understand what the ACA means for the rest of us.
My second thought is about the overall role of government as a force for good. Yesterday was the one month anniversary of the murder of Trayvon Martin. And still the government, local, state and Federal has not been able to bring George Zimmerman in for questioning. What does it say about a government that children can be murdered with impunity? Even simple questions to his lawyer go unanswered:
"Who is paying you, Mr. Lawyer?"
"Does George Zimmerman have a job?"
"Did you represent him when he was arrested for assault on a police officer in 2005?"
"Your client was not injured enough to go to the hospital that night. You say he sought some sort of medical treatment the next day. Do you have those medical records that you can show us?"
Have we become so corporatized a nation that in addition to question the validity of health care for all, something guaranteed in every other developed country in the world, we allow kids to be killed at the behest of the companies that paid for the "stand your ground" legislation?
I believe it has to do with the fact that so many people on the wacko right side prefer Spunky to any of the other candidates. Here's the data. Ah Republicans! Bad for Trayvon Martin, bad for basic health care (and other rights). I think this best sums it up:
Nothing has had as much affect on this years Republican primaries as the SCOTUS Citizens United decision. It has, in no uncertain terms, corrupted the political process. Demos undertook a study to find out where the money came from, who it went to, and how much of it was completely secret. That study can be found here. Amoung other findings:
"Super PACs raised about $181 million in the last two years -- with roughly half of it coming from fewer than 200 super-rich people."
The study also found that 93% of the itemized contributions raised by super PACs came in contributions of $10,000 or more, with more than half of this money coming from just 37 people who each gave $500,000 or more. Source
Amazing, isn't it?
The original intent of banning corporate contributions dates back more than 100 years, when the robber barons used to control things. Back then:
Montana voters supported the state's law against corporate spending in local politics in 1912, when copper barons and mining interests dominated the state. Montana lawmakers, who at that time appointed the state's two U.S. senators, received kickbacks, and judges were bribed.
That Montana law against corporation contributions stood until last Friday, when SCOTUS put it on hold. There was a suit against Montana from some companies that want to influence elections that made it all the way to the Supremes, who basically put a "temporary hold" on the Montana law until they decide whether to accept the full case or outright overturn Montana law based on Citizens United.
Remember that Citizens United allowed corporate spending because it did not cause corruption, nor the APPEARANCE of corruption. Um, the Supremes majority was WRONG on both counts. Two justices agree with that assessment.
In Friday’s order, Justices Ruth Bader Ginsburg and Stephen G. Breyer said the upheaval in the world of campaign finance since the Citizens United decision does not bear out the majority opinion.
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ ” Ginsburg wrote.
“A petition for certiorari [from those challenging the Montana court’s decision] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.” Source.
Look no further than Florida to see the impact of huge Superpac funding changing the outcome of the election. Had Mittens secret donors not flooded the airwaves in Florida, there's a high probability that Newton Leroy would have won. (Especially if he'd held it together during the debates.)
In a land where the right screams about deficits, deficits, deficits above all else, think what it would mean if those people so rich they can write multimillion dollar checks for candidate advertising instead paid taxes at the pre-Shrub tax cut rates. The deficit would be smaller, they wouldn't notice the money out of their pockets, and this would be a better country for it. I don't know how rank and file Republicans feel about things, I can't even imagine thinking or feeling like them, but I'm betting they're pissed that a candidate they don't want is being pushed down their throats by corporate interests.
Want to do something as we wait this out? Sign Senator Sander's petition for a Constitutional amendment against corporate financial influence in elections. It reads, in part:
Corporations are not persons with constitutional rights equal to real people.
Corporations are subject to regulation by the people.
Corporations may not make campaign contributions or any election expenditures.
Congress and states have the power to regulate campaign finances.
We at DCW feel so strongly about it that a link to the petition is on the bottom of every page. Please sign, please tell your friends. This is America....I read somewhere that it is supposed to be of the people, by the people and for the people. I don't remember seeing the word "corporation" in that document.
The Montana Supreme Court restored the state's century-old ban on direct spending by corporations on political candidates or committees in a ruling Friday that interest groups say bucks a high-profile U.S. Supreme Court decision granting political speech rights to corporations.
The decision grants a big win to Attorney General Steve Bullock, who personally represented the state in defending its ban that came under fire after the "Citizens United" decision last year from the U.S. Supreme court.
"The Citizens United decision dealt with federal laws and elections — like those contests for president and Congress," said Bullock, who is now running for governor. "But the vast majority of elections are held at the state or local level, and this is the first case I am aware of that examines state laws and elections."
"Citizens United is the law of the land, and this court is duty-bound to follow it," Nelson wrote. "When this case is appealed to the Supreme Court, as I expect it will be, a summary reversal on the merits would not surprise me in the least." - Great Falls Tribune
Tomorrow, the Supremes will hear arguments in Dukes v Wal-Mart. This is the discrimination case filed in 2001. It's worked its way up the food chain, and now the Supremes (remember, 1/3 female for the first time ever) will decide whether the largest class in history can be certified as a class to sue on the basis of wage discrimination and promotion discrimination. Wal-Mart's argument rests on faulty math. They claim there was some discrimination, but they fixed it, and that the "average" wage disparity is "only" $1,000/year. But look at the chart:
The math is that most people are cashiers, and thus the disparity is low in terms of dollars. The disparity for store managers, though is over $15,000 (note: more than the total annual salary for a cashier) and somehow only 14.3% of the managers are women. You can see all the early case background information here, and the case docket from the 9th circuit which is in front of SCOTUS here.
The real reason that Wal-Mart doesn't want this suit to progress is that the cost to them, when they lose, will be in the billions. The supporting briefs are from the usual suspects, like the Chamber of Commerce, which would like to see all class action suits disallowed. Here's the quote you want to keep in mind:
“As long as you discriminate against enough people, courts can’t get involved.”
And that IS what the Supremes would be saying if they squash the case. "Too big to fail" "Too big to sue" - sound familiar? It's not just US companies with a vested interest: the stat back in 2004 was that Wal-Mart was China's 8th largest trading partner. They're likely bigger now. Some info on Wal-Mart and China, and a bunch of other nasty thing can be found here, here and here.
Whether you shop at Wal-Mart or not (and you know you shouldn't) the ramifications of this case will affect you. It will affect the cost of things you buy, where you can buy them, and whether you, as an employee, have the rights you do today.
And by the way, you might want to sign the petition asking Scalia to recuse himself since his son is a partner in the law firm representing Wal-Mart. Can you spell c-o-n-f-l-i-c-t--o-f--i-n-t-e-r-e-s-t? Sign here. And remember, not only should Scalia recuse himself because it IS a giant conflict of interest (not that that matters to the GOP) but because a 4-4 tie, in this case, would go to the good guys.
So, please...read the information, know the facts, and get as many people as possible to sign the petition. And yes, if you still shop at Wal-Mart, quit now. You can get cadmium and mercury tainted products elsewhere, if for some reason you want them.
So, of course, let's start with the Constitution, which says in Article 3:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. (bolding mine)
Therefore, we know that we can lose a Supreme to "not good behaviour", which is an amorphous concept. Is murder bad behaviour? Stealing plates from the US Mint? How about perjury? Perjury is a bad thing. And it appears that Silent Clarence, who hasn't uttered a single word from the bench in over 5 years, has admitted his guilt in this regard.
If he didn't admit perjury, he certainly admitted an inability to read the English language. He had to fill out a form, and the issue arises around one section. Let's see if you can answer the questions:
Are you married?
If so, does your spouse have any non-investment income?
Two yes or no questions. Incredibly clear. As opposed to, say, questions one would need to answer to pass the bar to become a lawyer. Which Silent Clarence ostensibly passed. In Missouri. Complaints have been filed, and disbarment is on the table. Links here, and here. As an aside, the bribery charge information is here - and yes! it was from Citizens United. Relevant passage:
Clarence Thomas breached his legal duty and violated the Rules of Professional Conduct by knowingly and willfully failing for 20 years to state truthfully on required AO 10 Financial Disclosure Forms that his wife Virginia earned non-investment income. Clarence Thomas further labored under a financial conflict of interest by failing to disclose $100,000 in support for his nomination by the Citizens United Foundation when he sat in judgment of a case involving Citizens United. Finally, he made rulings that his wife benefited from financially and professionally, and by extension, that benefited him. In short, this unethical and criminal conduct violates the Rules of Professional Conduct, and undermines the rule of law, respect for the law and confidence in the law.
Would that be enough "not good behaviour" to get him thrown off the bench? Probably not, since that's a House action, and the tea baggers like both the ability to keep him on the bench AND the ability to "prove" they're not racist. Which, of course they are. One of the things they like about Silent Clarence is that he doesn't speak. Think about it, it will come to you.
For the non-tea bag Republicans, this is a problem for the 2012 cycle. The likelihood is that he'll be disbarred. And the Justice Department will investigate. The fun part is that these things take time, and so it will be in the news for months, if not years. The GOP is going to have a lot of trouble here: if they stick with Silent Clarence, they're supporting perjury, which was, you may recall, one of the two charges over which Bubba the Big Dog was impeached. The other was obstruction of justice, which may well end up being an additional charge filed against Silent Clarence as the story unfolds. If, however, there is Republican support for removal from the bench, we're looking at the right losing their majority. If around the same time, Kennedy, Scalia, Roberts or Alito, say, won $234 million in the Powerball and decided to immediately retire, it would be a true rout. Imagine: we could regain the Supremes! And then maybe Obama would morph back into being a Democrat. And we might well keep the Senate, and in a perfect world, get the lower chamber back.
A girl can dream. Sorry, I digressed.
Seriously, Clarence Thomas is a disgrace to the bench that brought us the likes of the Marshalls, John and Thurgood, Holmes, Taft, Brandeis, Frankfurter, Douglas, Warren, and the rest of the exemplary justices. Yes, we had Fred Vinson, but everyone makes mistakes; hopefully the Thomas one will be rectified. No matter how you look at it, this is a problem for the Republicans. Our side will likely be led by Anthony Weiner in the House. Couldn't get a better advocate.
There are a lot of people who believe that "what goes around, comes around." Wouldn't it be nice, really superlative, to see a dishonest, lackluster, self-serving Republican get what he deserves? Yes, it would.
Over the past several days, Joe Biden called me (and possibly you) a whiner. Joe Biden is the Vice President of the United States of America. I point that out because it appears that 40% of Americans don't know that. Barack Obama, his boss, has been going around to campuses calling us whiners "inexcusable" and "irresponsible". Thanks guys, you're REALLY making me want to vote this year. And I will vote, more in spite of you than because of you, but I always vote. I consider it both a right and an obligation that I take very seriously. My vote: my voice.
But here's my whine Mr. President and Mr. Vice-President: you abandoned me. Under the guise of "getting what was possible" you sold out to the corporate interests. You put the profit desires of the rich, the Chamber of Commerce and all of Wall Street above regular Americans. In the names of history and posterity and above all politics, you did things that are just not turning out that well.
Take Elena Kagan. I don't have anything to say about her qualifications or her abilities as a judge, I just mention the fact that her most recent job before becoming an Associate Justice was that of Solicitor General. This means she needs to recuse herself from any cases on which she worked as Solicitor General. So far, more than 40, including 4 of the 14 added to the docket this week. Including round 2 of whether or not corporations are people. Pretty important, huh? We're all still reeling from the Citizens United decision. Most normal, rational people don't think that corporations are people. But hey....it's now the law of the land. So this next case is again the FCC, this time against AT&T. (Docket 09-1279) The question is whether a corporation is entitled to the same privacy rights accorded an individual.
Here's the thing, With Kagan recused, the court is comprised of 8 people. Meaning a tie vote is possible. In the case of a tie, the ruling of the lower court, in this case the 3rd circuit, stands. Which would mean that AT&T has the same privacy rights as an individual. Elena Kagan, in her position of Solicitor General, fought against AT&T, her position being that corporations do not have the same rights, nor the "fear of embarrassment" accorded individuals.
Thanks President Obama, for replacing John Paul Stevens 35 years of protecting the Constitution with someone who cannot hear the cases, participate in the arguments, nor vote. VERY effective. Great. Fine. While Justice Kagan may some day rise to the occasion, for the next several years, you have handed the court over to the right wing whackos. And you wonder why I whine.
So take the next couple weeks and get out there Mr. President and Mr. Vie President. Go to the colleges and see if you can spark the young. People like me will vote because we always do, and because we realize that the GOP is a far worse evil. But please, this time, if you want to encourage me, be a Democrat. Quit making fun of us, the "professional left", stop calling us names and being mean. And DO something for us. Concentrate on jobs. Concentrate on upholding the platform. Make up for ceding our world to the corporations. The quote that comes to mind is from the conversation between Jed Bartlett and a retiring SCOTUS judge, played by Mason Adams. The justice said "I wanted to retire for years, but I waited for a Democratic president. And then I got you."
Of course you remember Orly "Queen of the Birthers" Taitz, who filed so many frivolous lawsuits that she was fined $20,000 last year by U.S. District Court Judge Clay Land.
Not content to just pay up, shut up, and then hopefully go home to Russia, she appealed to the Supremes. Her first attempt was with Justice Thomas, who rightly denied the appeal. He next choice? Sam Alito, who has actually referred this to the court. No joke, here's the SCOTUS information from their own site.
This does not in any way mean she doesn't have to pay the fine. And there is a grey-area issue about whether she should have filed a writ of certiorari, instead of asking for a stay as she did, or whether she'll need to do both. In addition, this doesn't meant that her case will go in front of the court, just that the Supremes will decide whether or not to hear it.
On Monday, a lien was filed on all of Taitz’s real property. Taitz said she wouldn’t give the government the satisfaction of taking her property or potentially her law license, adding she would pay the fine.
There is a logic that says the reason Alito referred the matter to the full court was so that they could all say no together. But hey, EVEN CLARENCE THOMAS knew to say no. He could just as easily allowed her to waste the time and money filing with each of the justices individually. But hey, as an appellate judge, he was the most overturned in history, with 100% of his referred cases being overturned. (BTW, the SCOTUS average for overturned cases is 74%.)
NOTICE OF COMMITTEE HEARING The Senate Committee on the Judiciary has scheduled a hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States for Monday, June 28, 2010 at 12:30 p.m. in Room 216 of the Hart Senate Office Building. By order of the Chairman.
Witness List Hearing before the Senate Committee on the Judiciary on The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States
RNC Attacks Kagan Over Praise For Thurgood Marshall - Article
GOP Uses Thurgood Marshall's Opposition To Slavery To Attack Elena Kagan - Article
Ed Whelan Compares Elena Kagan To Prostitute - Article
American Family Association Demands To Know If Elena Kagan Is Gay; Says That Would Disqualify Her - Article
Senator Jeff Sessions tosses 'Activist' label at Elena Kagan - Article
From TPM Exclusive Audio: Top GOP Strategist Briefs RNC On Plan To Beat Kagan - Article & Audio
President Obama Announces Supreme Court Nominee Elena Kagan
Eliot Spitzer, a former law school classmate of Elena Kagan, offers his insights
Spitzer: "She will get the fifth vote. To put this in the context of the Supreme Court, when she is on the court and she's looking for a fifth vote because she needs to get the majority, she will argue for a perspective that will get -- whether it's a Kennedy or a Scalia, whomever it may be, she will be persuasive to get that vote."
Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.
Last week, when Obama took the nearly unprecedented step of criticizing the court's opinion in a major campaign finance case during his State of the Union speech, some believed he was showcasing for the American people that presidential elections, and Supreme Courtnominations count.
We wouldn't lose any of the justices that sided with Citizens United should Ginsburg and Stevens step down. We would, however, solidify these two seats for a long time to come.
With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.
There's that bipartisan word again. When will Democrats wake up and realize that the GOP will do anything and everything to make them look bad... including further damaging the Country.