Summary: As the Desert Sun drives a stake through the hearts of its reader blogs, John Roberts takes refuge on the impregnable island fortress of Malta, while we gear up for the silly season of politics, complete with Mitt Romney's toothpaste advertisement campaign signs. All form grist for the mill of this installment of Little Snappers.
A couple of months ago, I observed that from to time, when he was Chief Justice, Warren Burger would write short concurrences or dissents to opinions of his Supreme Court colleagues. Though most of his "little snappers," as he called them, were never filed, he wrote them to let off steam. Sometimes, we all need to let fly with a little snapper or two. These are a few of the things that have pressed my buttons were tickled my funny bone since my last collection of Little Snappers.
NO MORE DESERT SUN READER BLOGS
The reader blogs in our local Coachella Valley Gannett newspaper, The Desert Sun, went away today, with stakes driven through their hearts. As other local bloggers have noted, TDS appears to be in some degree of difficulty. And while I leave to such other bloggers speculation over the future of Palm Springs’ local hardcopy newspaper, the departure of the TDS reader blogs strikes me as no great privation. Most Desert Sun reader blogs appear to be written by the same small group of bloggers (I., admittedly, being one of them) essentially talking to one another in the echo chamber.
Indeed, some of the Desert Sun reader blogs were clearly the product of professional writers working for astroturf political organizations, while others reflected in the usual collection of bomb throwers, tinfoil-lined hat wearers, and the occasional local activist. I cheerfully plead guilty to being in the last category.
Perhaps what did in the Desert Sun reader blogs was the undeniable fact that no newspaper website (by itself almost a contradiction in terms) can ever hope to meet, let alone beat ,the worldwide reach of social networking; more people have accessed this blog through Facebook than ever did through TDS. It may well be safe to speculate therefore that Facebook killed the Desert Sun reader blogs in the same way that (with due credit to the Buggles) “video killed the radio star.”
AN IMPREGNABLE ISLAND FORTRESS
If John Roberts thought being in a 5-4 Supreme Court majority in Citizens United had brought him any lasting or ongoing street cred with the Tea Party and the American right in general, the Chief Justice can certainly think again. Their reaction was that of an angry, jilted bride. I must confess, I didn’t giggle at the abuse that came the Chief’s way after Thursday’s healthcare decision; I laughed, largely, richly, rudely, with a generous infusion of schadenfreude. After all, one would have to be grossly naïve to believe that the American right can or would tolerate any deviation from its increasingly reductionist worldview.
I also laughed, largely, richly, rudely, cynically, at Chief Justice Roberts’ comment, as he prepared to depart for a summer teaching gig in Malta that he was going to “an impregnable Island Fortress.” He’s right, of course, Malta has never been carried by siege; the last effort in that regard failed in 1565 when Suleiman the Magnificent’s Ottoman troops were unable to dislodge the Knights of Malta. An impregnable island fortress may be just the place for John Roberts to do some teaching while the dust settles, even as he contemplates the reality that when the Court reconvenes on the first Monday in October, the madness begins all over again.
THE SILLY SEASON
You can tell we are ramping up for another episode of the ongoing reality TV series known as Campaign Season, a tragicomedy in which a panel of judges, known as voters, tried to navigate its way through a sea of claims and counterclaims, promises and counter-promises, gaffes and counter-gaffes, soundbites and counter-soundbites, all seasoned with generous doses of TV and radio spots, and mailers, to say nothing of a bumper crop of bumper stickers, buttons, decals and other artifacts, some of which will probably crop up on some far distant future edition of the Antiques Roadshow. Could somebody please explain to me why the Romney logo looks like a toothpaste ad? Is the quondam Massachusetts governor really that concerned about whether I brush my teeth and floss after every meal?
Saturday, June 30, 2012
Friday, June 29, 2012
NIXON GOES TO CHINA: CHIEF JUSTICE JOHN ROBERTS AND YESTERDAY’S TWO CONSEQUENTIAL SCOTUS DECISIONS
Summary: In upholding the individual mandate of the Affordable Care Act, and in finding unconstitutional the Stolen Valor Act, the Supreme Court rendered two highly consequential decisions that will affect Americans for the foreseeable future. By keeping alive the promise of heightened access to healthcare, the Court helped bring this country a little more in line with other industrialized nations whose healthcare systems are considerably more efficient and less dysfunctional than our own. By striking down the Stolen Valor Act, the Court recognized that sometimes we don’t need to send liars to jail; the humiliation of setting one’s own pants on fire can often be an even worse punishment than anything a federal prosecutor could ever dish out.
By: Paul S. Marchand
And so the legal challenges to the constitutionality of “Obamacare” seem finally to be at an end. While the political wrangling will continue, the Supreme Court has had the last legal word on the subject, at least for the time being. As Justice Robert Jackson famously put it: “[w]e are not final because we are infallible, but we are infallible only because we are final.”
The Supreme Court surprised us yesterday not only when it handed down its decision in National Federation of Independent Business v. Sebelius, upholding the constitutionality of the individual mandate in the Affordable Healthcare Act (“”Obamacare”),” but also affirming the judgment of the Ninth Circuit in U.S. v. Alvarez that the so-called Stolen Valor Act violates the First Amendment.
Both opinions, coming on the last day of the Court’s 2011 Term, are potentially hugely consequential. What may be even more consequential is that in both cases Chief Justice John Roberts voted with the so-called liberal bloc of the court. Indeed, it was the Chief Justice who authored that portion of the Court’s “Obamacare” opinion that upheld the individual mandate requiring Americans not otherwise insured to purchase health insurance.
What made Chief Justice Roberts’ opinion upholding the individual mandate so interesting is the intriguingly 19th-century tone in which it was written. For page after page, Chief Justice Roberts appeared to be at pains to discuss all the ways in which the individual mandate represented an impermissible exercise of Congressional power to regulate commerce under the Interstate Commerce Clause of the Constitution.
If one had not read the syllabus and headnotes accompanying the Court’s slip opinion, one might soon have reached the despairing conclusion that the Court had struck down the individual mandate. Instead, however, Roberts’ decision harks back structurally to a writing style reminiscent of the 1800s, when it was a not uncommon practice for the author of an opinion to raise up a whole series of straw men, so to speak, only to knock them down again before reaching the ratio decidendi, that is, the actual basis and legal justification for the decision.
In the “Obamacare” case, Chief Justice Roberts, having at length rejected the Commerce Clause, finally upheld the individual mandate by invoking Congress’s power to lay and collect taxes. It is almost as if the Chief Justice, like his 19th-century forebears, had deliberately raised up his own series of straw men simply in order to knock them down again.
We may never know, unless or until Chief Justice Roberts either publishes his memoirs or spills all to a lucky journalist, what motivated him to draft his opinion as he did. We can speculate that he may have done so in order to obtain a working plurality, or perhaps that he wanted to demonstrate very clearly that he, at least, intended to set very clear limits on the permissible use of the Commerce Clause by Congress, or --- according to certain conspiracists --- he saw to plant a poison pill to give the Republicans an anti-tax talking point for the November elections.
Perhaps, however, Roberts came to a similar conclusion as that Richard Nixon came to 40 years ago, when he became the first American President to visit what was then known as Mainland China. It has long since become a staple of conventional political wisdom on both sides of the aisle that only so famous a Red-Baiter as Nixon could actually have pulled off so dramatic a demarche as going to Beijing; consensus held then and holds now that no Democratic President could have pulled it off. Indeed, the phrase “Nixon Goes to China credibility,” has -- in some variant or other -- become a virtual shorthand for a bold stroke carried out by an unexpected actor, as, for example, when Anwar Sadat traveled to Jerusalem.
It may be that John Roberts realized that if the Affordable Care Act, which represents the best solution any American Congress has yet found for the discontents of our dysfunctional health care system, were to be upheld, he himself would have to be the author of the opinion, in much the same way as then-Chief Justice Warren Burger authored the opinion in U.S. v. Nixon, the Watergate tapes case.
At all events, the Chief Justice’s authorship of the most critical portion of the “Obamacare” decision may well have saved the Court, at least for the time being, from being caught up in an even worse political nightmare than that into which it descended with its ill-considered decision in Citizens United. Certainly, John Roberts’ decision to uphold the individual mandate has confounded not only conventional wisdom, but also the confident expectations of many on the right who had expected the Chief Justice to be a predictable conservative vote. It gave Roberts "Nixon in China" credibility.
The late William Buckley once defined a conservative as someone “standing athwart history, yelling ‘stop!’” Yesterday, the Chief Justice of the United States declined to be that angry men standing athwart history, yelling “stop!”
As much as the Chief Justice declined to stand athwart history yelling "stop!" as the fifth vote to overturn one of the most important pieces of legislation in recent American history, he also confounded expectations by being the fifth vote to uphold the decision of the Ninth Circuit in U.S. v. Alvarez, the so-called Stolen Valor case.
Alvarez, a serial liar and fantasist, had falsely claimed to be a 25 year U.S. Marine veteran and Medal of Honor recipient. He was prosecuted under the Stolen Valor Act, 2005, which made it a crime to falsely claim that one had received military decorations, and included an enhanced penalty for false claims of receipt of the Medal of Honor.
The Supreme Court, in an opinion by Justice Kennedy, joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, with Justices Breyer and Kagan concurring, held, in effect, that while lying about one’s military service or what decorations one may have received is objectionable, there exists no justification for carving out a broad and generalized exception to the First Amendment’s broad protection of speech. It has often been said that the remedy for offensive speech is more speech, and that the remedy for lies of the type the Stolen Valor Act sought to criminalize is ---as Justice Kennedy observed--- effective counterspeech.
While it is always tempting to want to criminalize conduct that, among decent people, is reprehensible, mere social lies, absent more, should be the subject at most of social sanction, not grounds for criminal prosecution. Indeed, there will be times when the telling of an untruth may be preferable to causing hurt feelings or, worse, putting people in harm’s way.
By: Paul S. Marchand
And so the legal challenges to the constitutionality of “Obamacare” seem finally to be at an end. While the political wrangling will continue, the Supreme Court has had the last legal word on the subject, at least for the time being. As Justice Robert Jackson famously put it: “[w]e are not final because we are infallible, but we are infallible only because we are final.”
The Supreme Court surprised us yesterday not only when it handed down its decision in National Federation of Independent Business v. Sebelius, upholding the constitutionality of the individual mandate in the Affordable Healthcare Act (“”Obamacare”),” but also affirming the judgment of the Ninth Circuit in U.S. v. Alvarez that the so-called Stolen Valor Act violates the First Amendment.
Both opinions, coming on the last day of the Court’s 2011 Term, are potentially hugely consequential. What may be even more consequential is that in both cases Chief Justice John Roberts voted with the so-called liberal bloc of the court. Indeed, it was the Chief Justice who authored that portion of the Court’s “Obamacare” opinion that upheld the individual mandate requiring Americans not otherwise insured to purchase health insurance.
What made Chief Justice Roberts’ opinion upholding the individual mandate so interesting is the intriguingly 19th-century tone in which it was written. For page after page, Chief Justice Roberts appeared to be at pains to discuss all the ways in which the individual mandate represented an impermissible exercise of Congressional power to regulate commerce under the Interstate Commerce Clause of the Constitution.
If one had not read the syllabus and headnotes accompanying the Court’s slip opinion, one might soon have reached the despairing conclusion that the Court had struck down the individual mandate. Instead, however, Roberts’ decision harks back structurally to a writing style reminiscent of the 1800s, when it was a not uncommon practice for the author of an opinion to raise up a whole series of straw men, so to speak, only to knock them down again before reaching the ratio decidendi, that is, the actual basis and legal justification for the decision.
In the “Obamacare” case, Chief Justice Roberts, having at length rejected the Commerce Clause, finally upheld the individual mandate by invoking Congress’s power to lay and collect taxes. It is almost as if the Chief Justice, like his 19th-century forebears, had deliberately raised up his own series of straw men simply in order to knock them down again.
We may never know, unless or until Chief Justice Roberts either publishes his memoirs or spills all to a lucky journalist, what motivated him to draft his opinion as he did. We can speculate that he may have done so in order to obtain a working plurality, or perhaps that he wanted to demonstrate very clearly that he, at least, intended to set very clear limits on the permissible use of the Commerce Clause by Congress, or --- according to certain conspiracists --- he saw to plant a poison pill to give the Republicans an anti-tax talking point for the November elections.
Perhaps, however, Roberts came to a similar conclusion as that Richard Nixon came to 40 years ago, when he became the first American President to visit what was then known as Mainland China. It has long since become a staple of conventional political wisdom on both sides of the aisle that only so famous a Red-Baiter as Nixon could actually have pulled off so dramatic a demarche as going to Beijing; consensus held then and holds now that no Democratic President could have pulled it off. Indeed, the phrase “Nixon Goes to China credibility,” has -- in some variant or other -- become a virtual shorthand for a bold stroke carried out by an unexpected actor, as, for example, when Anwar Sadat traveled to Jerusalem.
It may be that John Roberts realized that if the Affordable Care Act, which represents the best solution any American Congress has yet found for the discontents of our dysfunctional health care system, were to be upheld, he himself would have to be the author of the opinion, in much the same way as then-Chief Justice Warren Burger authored the opinion in U.S. v. Nixon, the Watergate tapes case.
At all events, the Chief Justice’s authorship of the most critical portion of the “Obamacare” decision may well have saved the Court, at least for the time being, from being caught up in an even worse political nightmare than that into which it descended with its ill-considered decision in Citizens United. Certainly, John Roberts’ decision to uphold the individual mandate has confounded not only conventional wisdom, but also the confident expectations of many on the right who had expected the Chief Justice to be a predictable conservative vote. It gave Roberts "Nixon in China" credibility.
The late William Buckley once defined a conservative as someone “standing athwart history, yelling ‘stop!’” Yesterday, the Chief Justice of the United States declined to be that angry men standing athwart history, yelling “stop!”
As much as the Chief Justice declined to stand athwart history yelling "stop!" as the fifth vote to overturn one of the most important pieces of legislation in recent American history, he also confounded expectations by being the fifth vote to uphold the decision of the Ninth Circuit in U.S. v. Alvarez, the so-called Stolen Valor case.
Alvarez, a serial liar and fantasist, had falsely claimed to be a 25 year U.S. Marine veteran and Medal of Honor recipient. He was prosecuted under the Stolen Valor Act, 2005, which made it a crime to falsely claim that one had received military decorations, and included an enhanced penalty for false claims of receipt of the Medal of Honor.
The Supreme Court, in an opinion by Justice Kennedy, joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, with Justices Breyer and Kagan concurring, held, in effect, that while lying about one’s military service or what decorations one may have received is objectionable, there exists no justification for carving out a broad and generalized exception to the First Amendment’s broad protection of speech. It has often been said that the remedy for offensive speech is more speech, and that the remedy for lies of the type the Stolen Valor Act sought to criminalize is ---as Justice Kennedy observed--- effective counterspeech.
While it is always tempting to want to criminalize conduct that, among decent people, is reprehensible, mere social lies, absent more, should be the subject at most of social sanction, not grounds for criminal prosecution. Indeed, there will be times when the telling of an untruth may be preferable to causing hurt feelings or, worse, putting people in harm’s way.
Sometimes we don’t tell our moms, gal pals, or spouses that those pants really do make them look fat, any more than we would, in a moment of unguarded truth-telling, reveal to the Taliban the itinerary of a NATO troop convoy in the wilds of Afghanistan. In love and war, as Winston Churchill used to say, the truth must often have an escort of lies.
When Mr. Alvarez chose to set his own pants on fire with his narcissistic tall tales, the shame and humiliation he brought upon himself constituted punishment far more humiliating than anything any federal prosecutor could ever have meted out. In recognizing this basic truth, the Supreme Court struck a significant blow for free speech yesterday.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and not necessarily those of any entity or organization with which he is affiliated. As he moves toward his sixth decade, he knows, from personal experience, that one of the most dangerous questions any man can ever hear is “Honey, do these pants make me look fat?”
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