The Not Really Obligatory Character Analysis of the Court

Okay, so the last two posts canvassed the merits of the recent health care ruling and the longer-term impact of that ruling on jurisprudence. This one is devoted to speculative discussion of what's going on with the nine individual human beings sitting on the Court right now. Well, a few of them anyway: most of them offer pretty uninteresting analysis right now, going along as they always have. Who are the exceptions? Mostly John Roberts and Antonin Scalia, and the dispute between the two of them, though Kennedy appears to be up to something himself.

The Equally Obligatory Prognostication Piece

My previous post discussed my opinion of the Supreme Court's ruling in National Federation of Independent Business v. Sebelius on the merits. This post is about discussing the likely impact of Chief Justice Roberts' compromise ruling on jurisprudence going forward. It's going to be shorter than the last one. The first thing to say is that it matters at all until a new Justice is appointed in a way that shifts the partisan balance of the Court. One liberal replacing one of the four conservatives, or one conservative replacing one of the four liberals, and the nuances of Roberts' ruling become unimportant. But assuming the Court stays the same for a while, and that each of the Justices currently on the Court sticks to their opinions from this case, here are a few things I think we can say about how much the Chief's efforts to limit Congress while upholding the law will actually change things.

The ruling regarding the Medicaid expansion strikes me as similar in some ways to Bush v. Gore: it's a completely ad hoc ruling designed for a particular temporal circumstance, and it won't really be relevant in future cases. I don't think it's really going to create a lasting precedent to the effect that Congress is basically hamstrung in its ability to change federal programs that are run in tandem with the states. Logically, if what we're worried about is the strength of the coercion Congress uses against the states in making them adopt its favored policies, then it should be that a proposal to start up a new program giving states just as much money as Medicaid gives them now, but with conditions attached that states had to follow if they wanted to see a single red cent, is just as suspect as an alteration to an existing program. But that's an unacceptable result, and not one that the Court would ever consider reaching. So I think this part of the ruling will sort of fade away quietly, causing a modest nuisance for this particular alteration of federal policy but not being of much import thereafter.

So, what about this idea that the Commerce/Necessary and Proper Clauses wouldn't have been sufficient to uphold the individual mandate? Well, the trouble with thinking this will be a big deal is that they did in fact uphold this law. Something like an individual mandate structured like this one is within Congress' enumerated powers. So the only thing Roberts really suggested would be outside of those powers, newly in this opinion, would be something similar to the mandate in its relation to the Commerce Clause but, unlike the mandate, not constructable as basically a tax. And such a thing is...? I don't know. I can't honestly think of anything that would fall into that little crack that Roberts tried to open in Congressional power. While there's no particular reason to think that this "regulating inactivity" thing conservatives have invented recently has any merit as a constitutional principle, it's certainly true that regulation of inactivity--aside from numerous tax preferences for activity as opposed to inactivity!--has not been something Congress has often felt compelled to do. And anyway, if it wants to do so, it may, so long as the penalties are expressed as a fine payable to the IRS.

So I really have no idea what the statute would look like that the precedent Roberts set today would deem unconstitutional, that wouldn't have been unconstitutional under yesterday's caselaw. Perhaps something similar to this mandate with criminal sanctions instead of a simple fine would be in that category, and of course quite honestly I'm okay with that sort of law being found unconstitutional somehow. But all in all I can't help avoiding the conclusion that, for all of Roberts' craftiness in joining the liberals and sneaking all of these limitations into his opinion despite upholding the law, he isn't actually shaping the course of future jurisprudence that much. Another way to put that is that this case just wasn't all that terribly important, considered in terms of the long arc of constitutional law. For one thing, it's obvious that the law is just sort of easily constitutional. For another, the most that's ever been claimed against the validity of this law is that, because it wasn't explicitly called a tax, it's outside the taxing power. But that wouldn't limit Congress going forward any more than Roberts' actual opinion upholding the law does: under both scenarios, Congress may do through the taxing power what it mayn't do through the Commerce Clause alone. The policy and political stakes were high, in that striking down this behemoth of social welfare legislation would've obviously changed the world circa 2015 quite a lot and there are obvious implications for the 2012 Presidential election. But as a constitutional law case, it's not that big a deal.

The Obligatory Reaction Piece

So, the first thing to say about the Supreme Court's ruling this morning in the hideously-named National Federation of Independent Business v. Sebelius, concerning the constitutionality of various provisions of the Patient Protection and Affordable Care Act, better known as "ObamaCare," is that it was basically a huge win. The law got upheld, to most people's surprise (the prediction markets at inTrade were giving a 75% chance of the mandate's being struck down as of yesterday), it was given bipartisan cover by Chief Justice John Roberts, it was a win. But I've got many more things to say than that.

The details of what happened are as follows. The Court faced four questions, of which the most important was the constitutional validity of the minimum coverage provision of the law, and on that question the Court held, 5-4, for the government. Roberts' majority opinion said that, for these purposes anyway, the so-called individual mandate was a valid exercise of Congress' taxing power, and the four liberals agreed with him; however, Roberts also opined that this provision was not a valid exercise of the Commerce Clause power, even extended through the Necessary and Proper Clause, in doing so agreeing with the Court's four dissenting conservatives. Since the mandate was not struck down, all the questions regarding severability were moot. Meanwhile, despite upholding the mandate under the taxing power, the Court rejected the argument (which neither party was making) that it was a tax for the purposes of the Anti-Injunction Act, which requires anyone suing to challenge a tax to wait until that tax is collected before doing so. Finally, the Court more or less upheld the expansion of Medicaid contained in the Act, though it said that states must be given the opportunity to accept or deny only the additional funding that would accompany said expansion. Congress could not, in other words, force states to accept the expansion or lose all their existing Medicaid funds.

The Court's four liberals, Justice Ruth Bader Ginsburg writing for herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, agreed with Roberts that the mandate was valid, and that it was valid under the taxing power, but not really about much else. (Well, except for the whole Anti-Injunction Act thing, which was pretty much unanimous.) They would've upheld it as a mandate directly, under the Commerce Clause. Two of them, Ginsburg and Sotomayor, also took issue with Roberts' limitation of the Medicaid expansion, though Breyer and Kagan sided with the Chief on that issue.

The dissenters, namely Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas, would have thrown out the entire law. Basically, they rejected all of the arguments in favor of upholding the mandate, and also found the Medicaid expansion unconstitutional, and from there they simply found that those provisions were not severable from the rest of the law, or even that some sort of line could be drawn around those provisions and those directly related to them.

So, what do I think? Well, as usual, I'm with Ruth Bader Ginsburg, who is almost certainly the Justice on the Court right now whom I trust the most to reach the correct result in any given case. At the very least, in my opinion, the minimum coverage provision is necessary and proper to bringing into execution a completely valid regulation of interstate commerce, namely the guaranteed-issue and community-rating provisions preventing insurance companies from denying coverage to or giving discriminatory prices to those with pre-existing conditions, into effect. I'm not sure whether it's valid solely and directly under the Commerce Clause, but to my mind the Necessary and Proper case is a slam dunk.

As for the Medicaid expansion, as Matt Yglesias says, the logic used by Roberts, Breyer, and Kagan to limit the Medicaid expansion (which, by the way, wtf Breyer and Kagan?) is a pure invention of the moment with no foundation whatsoever in the text of the Constitution. Medicaid is a valid exercise of Congress' spending power. It has long been held that Congress may say to the states, here's some money, and here are some conditions regarding how you have to use this money, and if you don't follow those conditions then we'll take our money back. That's one of the foundations of state-federal cooperation, and has been for basically ever. The idea that, because states rely rather tremendously on Medicaid funding, Congress mayn't change the conditions attached to Medicaid is just absurd. Yeah, states rely on Medicaid funding. But surely Congress could just take that funding away, despite that reliance? And if it could do that, why can't it threaten to do that if the states don't go along with the ways in which Congress wants them to spend its money? This is not a case like South Dakota v. Dole, where Congress threatened to take away some of the highway money states relied upon if they didn't enact various policy changes, specifically a drinking age of at least 21, that Congress wanted. Oh, and the Court upheld the National Minimum Drinking Age act in that case. This should be easier still, since it's all about Congress telling the states how to spend the very dollars Congress is giving them. The idea here seems to just be that, well, this would put the states in a tough position, and hey, we like states, so it's not cool. But that's just something the Court is reading into the Spending Clause from scratch.

Finally (because I don't see much point discussing the Anti-Injunction issue), we reach the question of severability. It wouldn't be relevant if I were writing an opinion in this case, since I wouldn't strike down any of the law, but since the dissent discussed it I'll address it as well. To do so, I must (unfortunately) quote a bit of Scalia:

Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

Now, my understanding of the "would Congress have enacted them independently?" test is quite different from the one Scalia uses here. Suppose, for instance, you take seriously the notion that the various regulations of private insurers would, in the absence of an individual mandate, create a death spiral. In that case, it's reasonable to think that Congress wouldn't have enacted the regulations if it knew the mandate wouldn't be there; there wouldn't be any point. Scalia seems, on the other hand, to be not considering Congress as a kind of abstract political institution but rather to be psychoanalyzing the details of the political compromises, log-rolling, etc. that went into passing the bill. He doesn't think, in other words, that it's very likely there would've been the votes for the law if you took out the bits he thinks are themselves unconstitutional. Or, as Yglesias puts it in his post on this same subject, the legitimate parts of the Act are deemed invalid because Antonin Scalia thinks they were "part of some kind of unseemly horse-trading."

Like I said, I would analyze this in terms of whether Congress, the institution, presumed to be basically sort of rational, would have had any plausible reason to desire to pass the law if it knew that a certain part of it was unconstitutional and would be struck down. After all, the necessary majority of both Houses did vote to enact every single provision of this law, and the President signed every single provision of this law; in my opinion, we have to take that at its word, and it's impossible to meaningfully second-guess the actions of those 270 actual human beings. And in this case, the invalidity of the minimum coverage provision would have no bearing on the reasons for which Congress might've wanted to enact, say, funding for community health centers. They're just separate policy questions.

Now, if it were well-known in a certain case that there was a specific deal made, where one faction agreed to vote for this provision in exchange for another faction voting for that provision, things might be a little different. But that's not what's going on here. There might've been a few such deals around the mandate, but not extending through the entire law. Rather, the law had a considerable omnibus aspect, with its bulk consisting of a whole bunch of little reforms to the nation's health care system that lots of people thought were a good idea. In fact, from my memory of the political debate around the Act's original passage, Republicans kept saying that, well, you know, 80% of the stuff in this law is stuff we all agree about, it's just the 20% that's causing controversy. And that 80% was the community health centers, and the dentist deregulation, and the requirement that restaurants display nutritional information. The 20% was the mandate, and perhaps also the details of the subsidies and the regulations of private insurance companies. So an actual examination of the details of the political process suggests that, far from provisions that would only have been acceptable given the mandate, all this stuff was itself the sweetener, that people might not have been able to swallow the mandate and the complex of regulations around it without.

So, basically, Scalia's wrong. Very, very, wrong. But what else is new?

EDIT: Since I haven't actually read any of the rulings, except Justice Thomas' two-page dissent, I missed this gem from Roberts regarding the Medicaid expansion:

"Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system....Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability."

I hate this kind of analysis. I think right-wingers love it. I think similar kinds of thinking are behind the so-called "non-delegation doctrine," this idea completely unsupported in constitutional text that "a delegated power may not be delegated," and so Congress can't tell the President to determine the appropriate law on some topic. And I think it's a load of bunk. The mechanisms of political accountability are spelled out in the text of the Constitution. Everyone has to be elected. It's up to the people to keep proper watch on the goings-on of their government, and it is emphatically not the province of the judiciary to police the government to make sure things don't get too complicated for us little folk to understand.

The argument in this case is that, since the federal government isn't enforcing the policies Congress has passed (states are), and since the states didn't pass the policies they're enforcing (Congress did), voters won't know whom to blame if they don't like the results. In particular, since acceptance or denial of funding is not a serious choice if Congress can take away all Medicaid funding in the case of a denial, the state government never really makes a clear choice. If the choice is serious, if denial is not met with a "gun to the head" but rather just with a continuation of the status quo, then people can fairly hold state officials politically accountable. That's the theory, anyway.

But, first of all, that's completely irrelevant, and second of all, it's wrong on the facts. I'm pretty sure that people know Medicaid is a national program. The fact that state governments do the enforcing doesn't leave people confused about what's really going on. If people don't like the Medicaid expansion in the PPACA, they'll punish Congress, and maybe also the President. And, oh look, a whole bunch of Democratic Congressmen who voted for the PPACA lost their seats in the first Congressional elections thereafter. Clearly, this state-coercing trickery made it just impossible for anyone to figure out whom they ought to blame. And that sort of gets at the point, that it's ridiculous for a Court to try and tell when an arrangement like this will make it hard for voters to know what's going on. Especially since it's not in the Constitution whatsoever, it's just some notion of fair play that Justices often like to enforce.

The truth is that Congress has the power to give money to the states, under its spending power. Obviously, it also has the power not to give that money to the states. Therefore it has the power to give money to the states if and only if the states promise to use that money in ways Congress likes. In fact, I probably think Congress has the right to give money to the states if and only if any condition regarding the state's policies are met, though that's not even important for this case. Given this ability to give money with strings attached, the idea that Congress can't change the strings attached seems patently absurd. One good way to tell that Roberts' analysis is flawed is by noticing the phrase "...States' existing Medicaid funds..." in this part of his opinion. There are no existing Medicaid funds, except in that Congress keeps appropriating funds to be given to the states as part of Medicaid.

So part of what we've got going on is inaction bias*, the assumption that any decision to not act isn't really a decision at all. But the past should be irrelevant; spending in the present should either be valid or be invalid, based on what that spending will do in the present. Congress is constantly deciding to provide the states a certain amount of Medicaid money with certain strings attached; it may at any point decide to provide a slightly different amount of Medicaid money with slightly different strings attached. So long as the new strings would be themselves constitutional if they were applied from scratch, the change in the strings should be constitutional as well.

SECOND EDIT: One thing I should add to this analysis is that there was one part of Chief Justice Roberts' opinion that I liked a whole lot. I once got into an argument with Randy Barnett, the libertarian constitutional scholar who sort of led the charge against the PPACA, about whether the fact that Congress, in writing the bill, went rather far out of its way not to call the individual mandate a tax should be controlling in determining whether or not it is a tax and therefore valid under the taxing power. Barnett said it was controlling, among other things on similar (though arguably even worse) "accountability" grounds as those I discussed above. Congress called it not a tax in order to avoid a political liability, he said; now they have to pay the price for that. Otherwise you could go around not calling things taxes that really were, and having it be okay, and then everything would just be horrible. I'm paraphrasing slightly. I, of course, said that if it acts in the real world like a tax, the Constitution shouldn't care what label has been stuck on it.

And that's where John Roberts came down. His opinion includes a nice little segment about how the way something's described in legislation just doesn't control whether or not it's within the ambit of the taxing power. That's a nice bit of anti-formalism, of looking beyond the words to see what's really going on, and I'm very pleased to see it

*Oh, and of course it's worth mentioning that the entire conservative argument against the mandate's validity as a Commerce Clause power sort of thing, which Roberts endorsed, was based on a giant pile of inaction bias. The idea that there's some great and terrible distinction between "regulating activity" and "regulating inactivity" is silly enough; the idea that such a distinction is recognized in the Constitution, which makes no reference to that concept anywhere, is even more ridiculous.

Okay, At This Point I Really, Seriously Have No Further Use for Justice Scalia

Supreme Court Justice Antonin Scalia has always had an interesting reputation. Yes, he's quite extreme on most issues, his reputation says, but he's not juts a partisan hack. He's a brilliant legal thinker who has a theory of constitutional interpretation in which he believes strongly. Sure, that interpretive theory leads him to policy results most of the time, but not always, and when it doesn't he owns up to it and follows his theory rather than his political ideology, and his theory helps him see certain flaws with traditional jurisprudence that no one else has any interest in pointing out. He may be a conservative, in other words, but at least he's got intellectual consistency.


Well, I say he's always had that reputation, but it's not really true. He used to have that reputation, but of late he's been fast using it up. When Scalia first got to the Court, that reputation was more or less true. He joined William Brennan's opinion in Texas v. Johnson (1989), holding flag-burning to be protected speech under the First Amendment, and he dissented alone from Mistretta v. United States (1989), which upheld the U.S. Sentencing Commission, and Morrison v. Olson (1988), which upheld the Independent Council Act. One can even find a few examples of this supposed intellectual integrity of Scalia's until pretty recently. I don't honestly think his concurrence in Gonzalez v. Raich (2005), upholding under the Commerce Clause federal regulation of privately-grown and privately-consumed marijuana, counts, since one can explain one apostasy from his policy preferences (limiting Congress's authority to regulate the economy) with another preference (anti-marijuana). His majority opinion in Kyllo v. United States (2001) definitely counts, though, as is held unconstitutional warrantless thermal imaging of a home under the Fourth Amendment--in a case where the defendant was growing pot! And--shockingly!--he dissented, along with Justice Stevens, from Hamdi v. Rumsfeld, which interpreted the Authorization for the Use of Military Force as a suspension of habeas corpus, writing that such a drastic measure had to be explicitly authorized in so many words by Congress. I say this is shocking because not giving rights to suspected terrorists is just about his favorite thing, and some of his dissents from cases which did give rights to suspected terrorists are entertainingly apoplectic. So this reputation of Scalia's isn't just made up, or anything; there are plenty of examples of his exhibiting exactly this kind of intellectual integrity.

But, well, no longer. It's been building for a while, actually; in my opinion, Chief Justice John Roberts has been a bad influence on Scalia, seducing him to the Dark Side of pure partisan hackery. I'm not going to provide a list of the cases that have made me gradually lose essentially all respect for Scalia. Instead I'm just going to give a few choice excerpts from his dissent in Arizona v. United States, a decision announced yesterday that struck down almost all contested provisions of Arizona's hateful immigration law. The most shocking part comes quite near the beginning:

"Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks."

Yep. He actually said that. Now, what I want to know about this passage is, given that he already had three examples of such "classes of aliens," why bother mentioning the part about freed blacks? Going from three examples to four doesn't really strengthen his claim much, and appearing to cite as favorable precedent an aspect of the slavery regime in the antebellum South seems like needlessly inviting controversy. Was this just offensiveness for offensiveness' sake? It gets better, though, as a few pages later we get this gem:

"That is why there was no need to set forth immigration as one of the enumerated powers of Congress, although an acknowledgement of that power (as well as of the States' similar power, subject to federal abridgment) was contained in Art. 1, §9, which provided that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..."

Um... what? He does know that this clause concerned the slave trade, right? That it was part of the original compromise over slavery, that Congress was prohibited from banning the slave trade for 20 years after ratification? (Which, of course, it did immediately upon gaining that power.) This... really isn't about immigration, dude. It's about slavery. See that word "importation"? That's a word you use for people conceived of as property.

This passage is ironic because it quotes a case that, among other Justices, Scalia himself helped overturn:

"It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as the protection of the dignity of the national flag, see Halter v. Nebraska, 205 U.S. 34 (1907), or protection of the Federal Government's ability to recruit soldiers, Gilbert v. Minnesota, 254 U.S. 325 (1920)."

Halter v. Nebraska, in upholding laws criminalizing the desecration of the flag, was of course overturned by Texas v. Johnson, in which Scalia provided the decisive fifth vote. And Gilbert v. Minnesota appears to have at least partially involved First Amendment claims of free speech and free exercise of religion, and similar cases upholding the federal government's power to suppress interference with recruitment are these days viewed rather skeptically.

Oh, and of course, here's this, where Scalia wantonly introduces a discussion of the Obama Administration's recent executive order regarding immigration:

"It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate "scarce enforcement resources"—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million individuals under the age of 30. If an individual unlawfully present in the United States [meets the criteria for exemption under this new policy] then U.S. immigration officials have been directed to "defe[r] action" against such individuals "for a period of two years, subject to renewal." The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind."

Of course, as he mentions, none of this had happened when this case was brought before the Court. This was not part of the case. This was what one might call a gratuitous potshot at President Obama. Legally speaking, it strikes me that the question of whether the general federal power over immigration preempts state action in the same area is completely distinct from whether the federal government has some particular program of broad-scale prosecutorial discretion in its immigration policy, and that therefore these remarks would be irrelevant even if the case had arisen after the executive order.

Now, Scalia's main actual legal argument revolves around the concept of "sovereignty." The very first sentence of his opinion is:

"The United States is an indivisible 'Union of sovereign states.'"

He's citing a 1938 case when he says that, by the way. Shortly thereafter:

"As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty."

He then cites several centuries-old treatises on the law of nations to support this last sentence.

Later on, in arguing that an implicit preemption from federal activity in the same "field" of policy is insufficient to restrict a state's power of exclusion:

"We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination the States' other inherent sovereign power, immunity from suit, elimination of the States' sovereign power to exclude requires that "Congress ... unequivocally expres[s] its intent to abrogate," Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (internal quotation marks and citation omitted)."

Two things: it's interesting that there's only one other "inherent sovereign power" that the States retain, and that other power, immunity from suit, is explicitly and only protected by the Eleventh Amendment, which is very explicit in so protecting that power. Indeed, prior to the Eleventh Amendment the Court had held that the States lacked this power; that Amendment was passed to overturn that case, Chisholm v. Georgia.

Very shortly thereafter, in a strange passage about how the government is just trying to please foreign powers, this gem:

"Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers."

Emphasis mine. Seriously. Yes, people have loved talking about "state sovereignty" for a long time, way back to before the big ol' war that should've buried that phrase along with the millions of its dead. But state independence? I'm pretty sure that one was buried by the Civil War, though I also don't think I can recall anyone talking about state independence between the Founding and the secession crisis.

So now we're left with this, at the end of the opinion, summarizing Scalia's radical and, to my knowledge, unprecedented (not just in Court opinions!) view of state sovereignty/independence:

"But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?

"A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court's holding? Today's judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with "the jealousy of the states with regard to their sovereignty." 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable provisions that never left Independence Hall. Now imagine a provision—perhaps inserted right after Art. 1, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress "To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate." The delegates to the Grand Convention would have rushed to the exits.

"As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that give rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

"Arizona has moved to protect its sovereignty—not in contradiction with federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent."

Well, yeah. We should stop referring to it as a sovereign state, 'cause the states are not in any meaningful way sovereign.

So basically, this opinion is crafted around a nonsensical legal premise, Scalia's wacky notion that the states are in some sense independent sovereign nations. To that it adds multiple completely random broadsides against the Obama Administration, and multiple distinct invocations of the legal apparatus of slavery as favorable precedents. This is basically, as I heard someone refer to it, full-on wingnut mode. As Adam Winkler puts it, quoted in this TalkingPointsMemo article,"Scalia has finally jumped the shark." I've said this a few other times over the past few years (actually, I think some of those were about his performance in the oral arguments of, well, this case), but this time will be the last time I say it: I've lost all respect for this guy. Whatever he may once have been, whatever virtues he may once have had, whatever principles his originalism may have once given him, it's all gone now. He's a partisan hack, and his flare for vitriol and scathing dissents is now being used for nothing but that hackery. It's pointless to think of Scalia as anything other than an angry old man who is going to rule on what I view as the wrong side of essentially every contested case, and who will give increasingly flimsy and sham-like arguments for doing so. I hereby give up on Antonin Scalia.

It's interesting to note, though, that it's starting to feel that he's not even really trying anymore. Not trying, that is, to couch his flaming rage in plausible-sounding legal arguments. I'm almost tempted to wonder whether he's started feeling like, whatever he may have accomplished and whatever he may accomplish yet, he's just not going to make the Court's jurisprudence look the way he wants it. Maybe he's becoming disappointed in Roberts' and Kennedy's penchant for caution and craftiness. Not, obviously, that they're not plenty conservative on a lot of issues, but Roberts' style is very distinct from Scalia's. In fact, he may be noticing that Roberts is supplanting him as the leader of the conservative side, and he may be getting kind of pissed off about it. Roberts joined the majority in this case, after all, and it's speculated he might abandon Scalia again in Thursday's health care ruling. In other words, I'm starting to wonder whether he's losing interest in the Court. It's probably wishful thinking, and given how strategic Justices tend to be in their retirements (and even, according to Steve Calabresi, in their dying!) it's probably a really long shot to think Scalia might retire during Obama's second term. But I'm starting to think the odds of replacing Scalia in the next four years are distinctly non-trivial. Here's hoping.

"Economic Libertarian" Doesn't Make Any Sense

The way I've always understood the word "libertarian" is that it describes a philosophy espousing extremely low levels of interference by the government in the conduct of people's affairs. It opposes such interference in the economic sphere, and it opposes such interference in the personal sphere. Libertarianism, I've always thought, means a concurrent commitment to economic liberty, personal liberty, and civil liberty. The result is a political ideology which is, put in slightly crude terms, "right-wing" on economic issues and "left-wing" on social issues. That's what it's supposed to mean, anyway, if you take the word itself seriously. Of course, in modern American parlance that's not quite how people interpret this word.

Take, for instance, this post by Jonathan Chait about the Koch brothers' dispute with the Cato Institute. Here's the relevant excerpt, regarding the promotion of John Allison to the leader of Cato:

Allison's ascension is in keeping with the general trend of the Washington libertarian movement to define itself mainly in economic terms. ... It's not just economic libertarianism in general that moves the likes of Allison, but a specific belief that economic freedom is defined primarily as opposition to egalitarianism. (As opposed to focusing on something like the regulatory power of state and local business cartels.) Allison has called egalitarianism "the most destructive principle in our society." The general thrust of Rand-influenced libertarianism, which you see in the philosophy of Rand-influenced Republicans like Grover Norquist and Paul Ryan, is that the central evil in public life is the poor using the political system to gang up on the rich and redistribute their resources.

Now, I think this is a perfectly accurate description of what's going on here, and I'd bet that Chait is using the word "libertarian" to describe Allison, Norquist, etc. in a way that's at least slightly ironic or cynical. But still, the philosophy he's describing is what people mean nowadays when they use this word. A libertarian, by default, is someone primarily concerned with economic liberty, and in particular "freedom" from egalitarianism. That is not, on my understanding of what the words are actually supposed to mean, a libertarian. Calling it economic libertarianism, after all, means you're neglecting the social/cultural/civil libertarian component. Not necessarily repudiating it, mind you, but not putting any effort toward promoting it. But if you drop libertarianism's social-issues component, it becomes just a brand of economic conservativism. And if by "economic liberty" you don't mean, particularly, the kind of regulatory stuff Matt Yglesias likes to talk about, and Steven Calabresi likes to talk about, but rather just broad-brush opposition to redistribution of wealth (which is not, in my opinion, very much of a liberty issue at all), then it's not even a distinctive brand of economic conservativism. Anti-egalitarianism has been the driving force of economic conservativism for a good long while now. A think tank whose purpose is to promote anti-egalitarianism is not in any meaningful sense a libertarian think-tank, even if some of the people there might also tell you they have no serious problem with gay marriage. Can we please stop describing them as such?

It's Good to See the Eighth Amendment

Not as headline a case as the Arizona immigration case or the yet-to-be-announced Affordable Care Act litigation, but the Supreme Court's ruling today in Miller v. Alabama is really nice to see. Basically this case extends the logic of the 2005 decision Roper v. Simmons, which prohibited the death penalty for crimes committed before the age of 18, to also prohibit life imprisonment without the possibility of parole for such crimes. Both cases featured the Court's four liberals plus Justice Kennedy; though she was still on the Court then, O'Connor dissented from Roper. The argument is very similar in each case: like execution, a sentence of life without parole constitutes "giving up" on someone, condemning them as beyond rehabilitation, beyond correction (in the sense of "Department of Corrections"), beyond any hope that they might some day be able to rejoin society. And, so sayeth the Court, nothing someone does when they're still a minor can be sufficient reason to give up on that person forever.

I'm happy about this case for a lot of reasons, one of which is just that it's a left-wing result that I like very much on its own merits. But I'm also kind of pleased to see slightly innovative uses of the Eighth Amendment continuing even through this dark era on the Court. Obviously Kennedy is the key figure there, with this just sort of happening to be one of the areas where he's idiosyncratic (in keeping, generally, with his internationalist slant; many European countries have held life without parole for anyone unconstitutional). But if I were to write up a wish list for genuinely creative liberal jurisprudence should we get to replace one of the five conservatives before one of the liberals gets replaced by a Republican, the Eighth Amendment would be high up on it. Ideally I'd like to see the Court become willing to straight-up scrutinize the whole "punishment fitting the crime" thing, and overturn some of these obscenely long prison sentences that have been trendy over the last few decades. It's a little hard to tell what might be possible with five actual liberals on the Court, since it's been so bloody long since that was last the case, but one reason to smile about Miller is its indication that some creative Eighth Amendment jurisprudence may not be so terribly impossible.

Outputs versus Inputs in Higher Education, vis-a-vis Affirmative Action

Here's a sentence from a John McWhorter column in the short-lived New York Sun in 2003, in anticipation of the Court's then-upcoming affirmative action cases Gratz v. Bollinger and Grutter v. Bollinger:

"The raison d’être of the nation’s selective universities is to forge a well-educated, national elite. Thus, our post-preferences approach to admissions must be meritocratic, though few people would want schools simply to choose students with the best SAT scores and grades and call it a day."

He's arguing, of course, against race-based affirmative action. I think it's interesting to notice the tension between the first and second sentences. The first sentence is about the desired outputs of selective universities, which he describes as "a well-educated national elite." The suggestion is, of course, that the selective universities play a crucial role in "forging" this elite, and in well-educating it. The second sentence, however, is all about the inputs to selective universities! In the first sentence he seems to be suggesting that exclusive colleges imbue a small group of people with the skills necessary to form a national elite (an odd but, in a certain way, refreshingly candid way of putting it), but in the second sentence, he seems to imply that what these colleges do is rather identify the most skilled youngsters in society and give them a stamp saying "Look, elite person here!"

Those are very different functions. If what colleges actually do is imbue their students with important skills and learning, then one might wonder why we need to be so concerned that the people chosen for such imbuing are the very smartest people possible, before they've gone to college. And if that's the case, if "meritocratic" admissions are unimportant because the whole point is to increase the merit of those who get admitted, then maybe we shouldn't even be troubled in the slightest if black people with worse SAT scores get into Harvard while white people with higher scores get rejected. If, on the other hand, college admissions is merely about identifying the ready-made elite in society and labelling it as such, and the actual experience of going to college doesn't add anything important, and if it's important that we not identify as a member of the elite anyone who lacks the right skills to function properly as a member of that elite, then we should be mortified if these non-elite black people are getting themselves entry into the elite tribe.

Of course, if all colleges do is label the pre-existing social elite, one might wonder about the worthfulness of that entire enterprise. And one might also wonder whether it's particularly, you know, fair or just to keep excluding black people from the elite based on the disadvantages passed down from their ancestors' having been forcibly kept out of the normal class, let alone the elite. Clearly John McWhorter had no interest in wondering either of these things. But if your view of college is that it does provide something extra, that you become an "elite" (if that's really the thing we're looking for you to become) by spending several years of your young adulthood attending a good higher learning institution, then the whole justification for using admissions to identify the very smartest high school seniors and nothing else falls away.

Bayesianism in Baseball Oddsmaking

Though I personally do not have any interest in placing bets using actual money, I do like to look at the odds that online betting sites give for certain events. Since these odds move with the money that's placed on them, they feel to me like they're a version of an inTrade-style prediction market. Right now at Ladbrokes, the 2012 US Presidential election is at Obama 8/13, Romney 5/4, suggesting a genuine Obama lead. Tiger Woods is an 8/1 favorite to win the US Open. But this post is about the odds to win each division of Major League Baseball this season. The correlation between current standings and the odds given to each team is shockingly weak, in a way that I feel gives a bit too much respect for the pre-season consensus and insufficient respect for the 40% of the season that has already taken place. Thus the reference to Bayesianism in the title: the oddsmakers, it looks to me, are overweighting their prior probability estimates against the actual data.

Polarization is not Extremism

People talk a lot about political polarization these days, and there's a general tendency to feel that increased polarization means increased radicalness, extremism, etc., at the expense of moderation and compromise. Well, that's not necessarily the case. Consider the following example, which is really polarization-meets-life-appointment. Right now, the U.S. Supreme Court is extremely polarized. Four Justices, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Steven Breyer, are rather consistently liberal in their rulings. Another four, Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito, are consistently conservative. The ninth Justice, Anthony Kennedy, is a more moderate conservative, and a bit of a swing Justice. This means that, on essentially every case, Justice Kennedy can count on having four Justices to his left, and four Justices to his right, making him the marginal Justice every time. Or, to put it another way, Anthony Kennedy is the Philosopher-King of the United States, for he is almost guaranteed to be in the majority on every case no matter how he rules.