Open Your Eyes to Your Tribe's Failings

Senator Sheldon Whitehouse recently tweeted the following image. 

The message is clear: Democrats want to build bridges and Republicans want to burn them down. Because Senator Whitehouse is a politician, this declaration of moral superiority shouldn't be taken too seriously. Yes, it would be great if politicians were good people whose currency was facts, didn't disparage those who disagreed with them, and didn't exaggerate differences, but that's not the world we live in.

The problem is that so many people, Democrats and Republicans alike, believe that their side is the side of honest, good-faith, pro-unity, compromising paragons. The people I tend to agree with recognize that neither party has a monopoly on virtue or vice, but on Twitter, which is mostly Democrats, frequently declare that Democrats are saintly while Republicans are malicious, completely ignoring the continuous caravan of counter examples.

There's no question that Republicans have not been angels (the Merrick Garland stunt, the unwillingness to compromise or even put forward ideas on innumerable policies, 85% of Trump's tweets), but to disabuse the left of their misperception, here is a list to reflect on.

Starting with the courts, recall the treatment of Robert Bork. Democrat Senator Alan Cranston "urged colleagues to form a 'solid phalanx' of opposition." Senator Ted Kennedy shouted that Bork would send women to "back-alleys" for abortions, resegregate America, ban the teaching of evolution, approve of unrestricted government censorship. Neither of these sound particularly bridge-building to me. Then Democrats tried to prevent any Republican-nominated minorities from getting to the Supreme Court. First, Clarence Thomas was accused of sexual harassment after he was nominated, then for the first time in history, a nomination was blocked by way of filibuster. Most who followed the controversy believe that Estrada was blocked solely because he was Latino, and Democrats didn't want the first Latino Supreme Court Justice to have been Republican-appointed. By 2005, Democrats had filibustered 10 judges, and Republicans were ready to junk the filibuster, but both sides backed down.

On Trump's three nominees, little needs to be said.

On Trump himself, Democrats' willingness to build bridges was clear. Their initial response was to resist everything Trump, holdover bureaucrats worked against their new boss, leaks were rampant. Democrats could have won a compromise on DACA, but Dick Durbin blew up any potential compromise. Democrats filibustered Covid relief to prevent Trump a political victory before the election.

Hillary Clinton called Trump voters a basket of deplorables. Obama denigrated those who disagreed with him by saying they cling to their guns and religion, then said they're being sold a swamp of crazy. These are the nominees for President for Democrats, exemplifying how their voters feel. These are not the quotes of people trying to build bridges.

Travel Ban Decision (Trump vs. Hawaii)

The Opinion
SCotUSBlog's Case Page

Super brief summary of case:

Candidate Trump included on his webpage a statement about how he intended to stop all Muslim immigration temporarily. (Other than this, the clearest thing he seems to have said on the subject was that the US was "having problems with Muslims coming into the country.")

1.  On his 8th day as president, Trump issued Executive Order 13769 among other things suspended entry of people from certain countries for 90 days.
2. It was almost immediately subjected to legal challenges which delayed its enactment.
3. It was replaced by Executive Order 13780, which removed Iraq from the list of countries banned and clarified that people with legal standing in the US were not subject to the ban.
1. Chad, North Korea, and Venezuela were added to list
2. Chad was removed from list
4. Legal challenges began

In my reading of the opinions (of lay people and judges), it seems to me that the real question at issue here is whether a motivating factor should be used to decide constitutionality. I don't think that either side disagrees that if Candidate/President Trump had never said anything about banning Muslims, that the (second executive) order would be ruled unconstitutional. The dissent seems to be almost entirely around his statements about banning Muslims and the fact that most of the countries are Muslim-majority countries.

The majority's opinion seems to be that his statements not withstanding, the fact that the executive order has a reasonable, non-religious explanation supporting it, and the President has pretty broad powers to control entry into the United States, the executive order is constitutional.

The dissent's opinion seems to be that President Trump expressed a desire to implement a ban on a certain religion and therefore this order which mainly affects some countries with large numbers of that religion is based on religious animus and therefore unconstitutional.

If we go with the dissent for a moment, their position really is that if a person expresses an unconstitutional motivation at anytime, that bars him from enacting any law that would even partially fulfill that motivation despite it being constitutional when the motivation is ignored.

Am I wrong that this would open the door to litigation of any and all laws that have a disparate impact on a group? I suppose it would need to be a protected group. It's hard to imagine a different case. Every now and then a politician is caught saying something anti-Semitic. If they passed a law which had a negative impact on Jews, would that be unconstitutional? Another example might be tax policies that hurt different groups.

On the other hand, what if there actually existed a religion whose sole purpose was to destroy us? If a candidate said he was going to stop them, would he not be allowed to do so because of his religious animus?

Another question that the dissent generates would be at what point can you discern a legislator's or president's motivations? President/Candidate Trump actually said Muslim ban, but what if he had merely said he thought Muslims dangerous and then said we shouldn't allow dangerous people into the country, would that be clear enough? This would definitely create a whole new set of cases and judgments to define the line of motivation, and you can be assured that the left's interpretations of motivations are often stretched pretty far. Just think about the scant evidence they use to call someone misogynistic (because they think Judge Kavanaugh should be confirmed) or racist (because their middle name is Beauregard).

Another interesting tidbit about this decision. I think this is a case where the split wasn't caused by political ideology but judicial ideology. If the judges were polled as to whether they approved or disapproved of the law, I would bet that the disapprovers would outnumber the approvers. It might even be unanimous. I know that's how I feel. I disagree with the policy, but still think it's constitutional. Count this as an argument that the conservative justices aren't voting for political reasons. Are there any similar cases where the liberal justices vote against their political beliefs? J. Ginsburg has expressed an anti-Trump animus. Should her decisions be negated?

Other Thoughts

There is a lot of back and forth about rational versus reasonable basis. The dissent claims that "if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated" (reasonable basis). The opinion believes that if the law has an underpinning for legitimate purposes, then it must be upheld (rational basis). The rational basis camp cites many precedents suggesting that this should be used on cases of national defense, foreign affairs, and entry of foreign nationals while the dissent's (single yet very clear) precedent pertains to "holiday displays and graduate ceremonies". If the dissent had won this argument, it would have expanded the use of the reasonable basis review.

Furthermore, the dissent strongly believes that "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." I just don't know if that's true. I think reasonable people could fall on both sides, though a majority of them would probably agree. It really depends on how it is presented. If you said, "President Trump wanted a Muslim ban and the first thing he did in office was ban a bunch of Muslims from entering the US.", then yes. If you instead said, "President Trump said he wanted a Muslim ban, but keep in mind, President Trump is prone to exaggeration and doesn't really precisely what he means" (give numerous examples) "Upon entering office he issued a sloppy order that banned entry from the 7 mostly Muslim countries that President Obama's administration had placed restrictions on because of 'the growing threat from foreign terrorist fighters.' After legal challenges, President Trump cleaned up the order as it related to people who already had legal standing, added two countries with very few Muslims and removed Iraq. It also included explicit, non-religious reasons the countries were on the list providing them a way out. At most, it 'bans' 8% of world's Muslims." What would a reasonable person say to that? I don't really know.

• If a Candidate/President expresses a religious animus, and then actually has a change of heart, would the dissenters still prevent her from implementing a similar travel ban? Would she need to express her change of heart? If President Trump says he loves Muslims would he be in the clear?
• If one of those countries, or any Muslim majority country declares war on us, would President Trump be barred from fighting back? Would he have had to have said on the campaign that he didn't like Muslims?
• “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­mation inflicts upon countless families and individuals” - Is this a legal argument or a logical fallacy?
• In J. Sotomayor's dissent, footnote 7, "It is important to note 'using the term alien to refer to other human beings' to be 'offensive and demeaning'" I don't think it's important to note that at all.
• Why does the dissent cite Democrats who believe it to be bad policy? The quality of the policy should not affect whether it's constitutional.
• “the Proclamation has deleterious effects on our higher educa­tion system; national security; healthcare; artistic culture” - and? OH! That was your point. Everybody stop the travel ban! Let anyone who wants to come in come in, otherwise our artistic culture is doomed!

Good Writing

“Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

Overreacting to the Supreme Court

I'm trying to go through the recent Affirmative Action case opinions, so I can summarize. Surprisingly, I'm leaning more toward the dissent than I expected, but I haven't finished reading it yet.

For those who haven't read much detail, as Kennedy said, the decision was not about affirmative action, it's more complex than that. Basically the question is whether banning affirmative action at the state level, powers were taken from the schools' trustees and it became more difficult for minorities to enact advantageous (or outlaw disadvantageous) policies.

Anyway, in this article, The Nation's Patricia Williams is, predictably, upset. Here's what I take issue with.

The bottom line? What is expressly permissible as a matter of the US Constitution is now forbidden in Michigan. Not only that, it has removed affirmative action in Michigan from the democratic process.

First, there is a long list of things permissible by the US Constitution that are forbidden by states. Basically, all state legislation does is restrict your freedoms that the Constitution doesn't explicitly say you have. States say you can't drive faster than 65 mph, where does it say that in the Constitution? States won't allow you to drink, that's something that is "permissible as a matter of the US Constitution."

Not only that, but even easier to contest, it hasn't been removed from the democratic process. If anything, it's more a part of the democratic process. It was voted in by a majority of Michigan voters. Before the vote, it was decided by trustees appointed by the governor. Used to be, direct elections were considered more democratic. I guess Patricia would like to repeal the 17th Amendment and let her legislature (or possibly the trustees to Michigan's schools) choose the US Senators.

Finally, she says

But consider another scenario. You have one place to fill and two applicants—a white kid from Grosse Pointe, and a black kid who has risen from the ashes of Detroit’s segregated, postindustrial dystopia to achieve the same scores. Put on the blindfold! We don’t see color here. According to Section 26, it’s unlawful to weigh the black kid’s distinct experiences because that would constitute either an act of discrimination against the majority white population or a grant of preferential treatment for minorities.

No Conservative I know believes a kid's experiences shouldn't be weighed, just not the color of his skin. I believe it wrong to assume that because someone's black, they've had a harder time than every white person. Granted, in most circumstances, that's true, but not everyone. Experiences should be weighed, not skin color.

Bad Analogy

Liberals have been very good at creating analogies that seemingly make their opinions look reasonable while criticizing their opponents. But often, their analogies don't reflect the actual situation.

Norman Ornstein has painted a picture to help him make the case that the Supreme Court's Voting Rights decision was wrong-headed. But it doesn't hold water.

Imagine an intersection with a long history of high-speed car crashes, injuries and fatalities. Authorities put up a traffic light and a speed camera — and the accidents and injuries plummet. A few years later, authorities declare “mission accomplished” and remove the light and speed camera. No surprise, the high-speed crashes and fatalities resume almost immediately.

 A better analogy, one that captures the argument from the Justices, would be an intersection that 40 years ago, was extremely dangerous, so traffic control was added. This development helped the situation. Now, 40 years later, lots of things have changed--cars are safer, people may drive differently, pedestrians may be more careful, but we don't know because those traffic controls are still in place. Now, they want to add a left-turn signal, or take away a crosswalk that isn't used anymore. The neighboring intersections have extremely similar traffic patterns, actually, they're moderately more dangerous than this one, but the city government requires a year-waiting period to consider any changes for this intersection, while that intersection can be repainted over night.

The court has basically said, you can't more carefully scrutinize this one intersection because of its traffic patterns 40 years ago, you must treat every intersection based on today's data.

The Left has a tendency to oversimplify.

Hollingsworth v. Perry - A Summary

I am dissatisfied with reporting on courte cases. What I'd like to know is more detailed than is usually provided. I'd like the arguments for each opinion. Here I provide my own summary of the Hollingsworth v. Perry decision.

Full Decision
Wonkblog Post

Brief synopsis - The people of California (not the legislature) passed an amendment to their Consitution defining marriage as between one man and one woman. Gay marriage advocates argued that this violated their rights so sued to have the amendment declared unconstitutional. The elected officials of California chose not to defend the amendment, and so advocates of the amendment (regular citizens) defended it. The Supreme Court ruled that the advocates didn't have standing.

Decision (Roberts, Ginsberg, Kagan, Scalia, Breyer) - Without injury, one has no standing to defend an issue in court.

Dissent (Kennedy, Thomas, Alito, Sotomayor) - California law provides that one can defend an issue if elected officials choose not to do so.

My thoughts

Implications - Any law that is passed, if elected officials choose not to defend it in court should it be disputed, and no one can claim a direct harm, then these types of laws will become unenforcable. This kind of defeats the purpose of popular referenda. Popular referenda will only be used when the elected officials don't want to pursue or enact them. Therefore, if they're passed, they'll be indefensible in court.

5-4 Decisions

The degree of polarization in the Supreme Court really scares me. I feel (without any data analysis) that there are too many five-four decisions. I also feel that many of the justices aren't deciding based on law but on their own moral judgments.  If they are deciding based on morality, then I guess 5-4 decisions make sense, but I think that's bad for the country. Those who are doing so, should also freely admit that that is how they're basing their decisions.

This reminds me of a debate between Stephen Breyer and Antonin Scalia in which Scalia claimed that it was better to have nine historians on the Supreme Court than nine ethicists. This, I believe, gets to the real difference between how conservatives and liberal approach the court. Liberals want to rule based on their morality while conservatives want to rule based on the law. This is probably the best way to describe "Legislating from the bench" - defying or rewriting law based on your own preferences.  Note that this does not mean striking down a law is necessarily legislating from the bench. It is only so when the law is struck down based on personal beliefs.

Today the court released a decision on the Voting Rights Act in which it struck down a portion of it. Liberals are extremely unhappy, but it seems as if their unhappy from the superficial idea that the court struck down part of the Voting Rights Act, without really looking at the details (this is a characteristic I've noticed before from the Left).

Look at these "Best Lines from Ginsburg's Dissent." None of them really talk about whether the law is constitutional or not, they just talk about whether there is or is not discrimination. The majority doesn't deny the fact that there's discrimination, they say only that concentrating on certain areas because they were more prone to discrimination 50 years ago but not necessarily today is unconstitutitional.

Corrected: Civil Rights Act should have been Voting Rights Act

Simultaneously a Tax and Not a Tax

There are several aspects of the Supreme Court's decision on the ACA that still perplex me.

What exactly is the difference between a tax and a fine?
Don't taxes have to be paid before they can be challenged?
Don't taxes have to begin in the House of Representatives?
What is the explanation for the Medicaid decision?

I find reading the direct opinions can be very illuminating.  For example, I read the Conservative bloc's opinion, and came away with the realization that really they made a very strong case that Congress believed the mandate was not a tax, but not such a strong case, that it Constitutionally wasn't a tax.

Today, I think I can answer the second question.

This issue is discussed by Chief Justice Roberts on page 11 of his opinion (17 of the pdf)

It seems the answer to why this is not a tax for the purposes of the Anti-Injunction Act but is a tax for Constitutional Purposes is that the Anti-Injunction Act was written by Congress.  So it applies only to things that Congress thinks is a tax.

It would be like if you and I had different definitions for the same thing, say a computer.  Then I said I will buy you a computer.  Do you expect what you consider a computer, or do you expect that I give you my version of a computer.

Since Congress passed the Anti-Injunction Act, and said taxes must be paid before they can be challenged.  Then they wrote the ACA which calls it a "penalty," so the Anti-Injunction Act doesn't apply to it.  I'll try to think of an analogy to make this clear.