Originalism, Textualism, and Politics on the Supreme Court

Antonin ScaliaLet me explain something to you about judicial theory that has really had me confused. There is a theory called “originalism.” This is the idea that laws should be interpreted as they originally were. So the Constitution should be interpreted according to what people thought about it in 1788. I find it a totally indefensible theory, but there you go. There is another theory called “textualism.” This is the theory that the law should be interpreted only on the basis of its text. It doesn’t matter if we know that the legislators intended a law to be a certain way; if there was a typo in the legislation, that’s what the law means.

Based upon this, you would think that originalism and textualism would be opposites. But that isn’t the case. For one thing, originalism is a bit more complicated than what I explained above. There is the idea of original intent but there is also the idea of original meaning. So all these years that I’ve referred to Antonin Scalia as an originalist, I’ve been technically right. But it is more correct to say that he is a textualist. Of course, as I’ve discussed before, Scalia is nothing but an ideologue who simply finds however is necessary to go along with what he’s learned from listening to Rush Limbaugh.

Clarence ThomasThe reason this all comes up is the most recent challenge to Obamacare, Halbig v Burwell. This is the case that is going to set all the poor people free in red states by not allowing them to get federal subsidies on the federal healthcare exchanges. It is literally based upon a typo in the law. But as Jeffrey Toobin explains in The New Yorker today, other parts of the law clearly indicate that the federal government did intend to provide subsidies when state governments didn’t set up their own exchanges. So the question is what a justice is suppose to do when there is a conflict in the law.

Do you question how Scalia will see it? He will almost certainly grab onto the typo and ignore the rest of the law. I know this (Everyone should!) because if a lawsuit came in saying that Obamacare was unconstitutional because Obama was a doo-doo face, Scalia would find some reason to agree. And that gets to the most fundamental thing about the Supreme Court that you should never forget: it is 100% political 100% of the time.

John RobertsWhat is interesting here is not really Scalia. From my perspective, Thomas is actually more consistent. Scalia is kind of a loose cannon. On any given day, he might find anything at all. But just like Fox News viewers everywhere, if the issue has been publicized, he is dangerously consistent. So neither Scalia nor Clarence “Predictably Dark Ages” Thomas are interesting. It is John Roberts who fascinates. Because he is totally political, and explicitly so. Scalia wouldn’t admit that his decisions are political. The same is true of Thomas. But how could Roberts deny it?

John Roberts is the one person on the Supreme Court who clearly thinks, “How is this going to play?” That’s why he found in favor of Obamacare the first time. And that’s why I fully expect him to find for Obamacare this time. We will see, of course. But by the time this thing actually makes it to the Supreme Court (assuming it does), it wouldn’t be decided until this time next year. And at that point, if the Supreme Court found against Obamacare, there would be millions of people who suddenly saw their healthcare costs go through the roof for what would only be seen as partisan reasons.

I’ve argued before that Roberts is very concerned about how history sees him. In this case, it would possibly be about history seeing him as the Chief Justice who cast the deciding vote that caused the people to amend the Constitution to eliminate the Supreme Court. Because at that point, I don’t think anyone would consider the Court anything more than yet another partisan institution that simply votes according to the interests of the party that nominated them.

Jeffrey Toobin is interested in whether Scalia will stand by his textualist philosophy. I don’t think there is any real question. Somehow, Scalia will find a plausible way to justify doing whatever it requires to destroy Obamacare. It is possible that even Halbig v Burwell may be a bridge too far and he’ll side against it. But that will only be because he’s concerned about his reputation and he knows he’s not going to win. So it wouldn’t surprise me at all to see this case go down 7-2, with only crazy Alito and medieval Thomas voting to uphold.

But regardless of how the decision comes in or whether the Supreme Court decides not to take the case, it is all about politics. The decisions of Roberts and Scalia have nothing to do with the law and everything to do with their ideologies and their concerns about their own reputations.

Rand Paul Continues to “Evolve” His Ideology

Rand PaulYou may remember last month when I wrote, Why Republicans Will Nominate Rand Paul in 2016. The basis of my argument was that Rand Paul’s current position on foreign affairs would never be palatable to the Republican base. Lucky for Paul that he doesn’t seem to have any commitment to his stated ideology, so he will simply become a generic (extreme) Republican by the time the primary really starts next year. But he will maintain the libertarian brand that so flatters the base. No one else can really touch that.

Today, Charlie Pierce brought my attention to the latest example of Paul’s “evolution” (or: “shameless pandering”) on his way to the Republican presidential nomination, For the Benefit of Mr Paul. Back in 2011, Rand Paul proposed a bill that would end foreign aid to all countries in the Middle East — including the untouchable country, Israel. Last month he claimed that he never proposed doing this. He also noted that Oceania has always been at war with Eastasia.

At that time, his comments were mostly about Israel. One can’t be neutral toward Israel and be a mainstream national politician in this country. If American has “exceptionalism,” then Israel has “super-duper exceptionalism.” One would think Paul would have realized this long ago. But if there is anything that Rand Paul’s career has shown, it is that he isn’t all that smart, and he surrounds himself with similarly capable sub-subgeniuses.

Last week, the Associated Press explained Paul’s new position, Perry, Paul Bash Obama for “No Strategy” on Syria.

If I were President, I would call a joint session of Congress. I would lay out the reasoning of why ISIS is a threat to our national security and seek congressional authorization to destroy ISIS militarily.

Other than tipping his hat to the Constitutional mandate to seek Congressional authorization for starting yet another war in the Middle East, I don’t see this as anything different from America’s favorite comedy duo, McCain & Graham. And that is the point. Paul is well on the road to getting rid of the few libertarian ideals he has left, while maintaining the “libertarian” brand.

It isn’t hard to do. Libertarians believe in having a military (or at least a militia) that will defend against invading hordes. It just isn’t hard to move from that to defining any group we don’t like as an existential threat allowing for the permanent war we now have. And for that matter, it isn’t much further to making a “libertarian” argument for throwing Charles Schenck in jail for arguing against World War I.

Next be prepared for Rand Paul to do a little hedging on his support for cannabis legalization. “I’ve only ever been in favor of legalization if we absolutely positively can keep it out of the hands of children!” But we aren’t able to absolutely positively keep alcohol out of the hands of children. Isn’t that an absurd criterion for legalization? “I’ve am in favor of legalization if we absolutely positively can keep it out of the hands of children!”

On the issue of LGBT rights, he’s more likely to just not talk about them. But you can imagine something like, “I believe in same sex marriage, but I never said gay people should be able to teach our children!” So you aren’t in favor of LGBT equality? “Of course I am! But no one has a Constitutional right to a job!”

And on the issue of immigration, I think he will get on board with Marco Rubio’s brilliant political innovation. “I’ve only ever been in favor of naturalizing our illegal population after not one person is coming across the boarder illegally.” But isn’t that an absurd criterion that can never be met? “That’s why I’ve only ever been in favor of naturalizing our illegal population after not one person is coming across the boarder illegally.”

Although he’s never had far to travel, Rand Paul is well on his way to being the kind of LINO (Libertarian In Name Only) that Republicans can support. What’s funny about it is that I’m sure whoever runs for president on the Libertarian Party ticket will get far fewer votes in 2016 than they did in 2012. It’s amusing that Republicans fancy themselves libertarians but don’t really support libertarian policies. But it is a laugh riot that much of the official libertarian establishment is exactly the same. It shows just how ridiculous the entire conservative movement in this country has become.

Celebgate Is Just Theft

Jennifer LawrenceThe Young Turks produced a segment, Celebgate Hacking Excuses. I haven’t paid much attention to this. All I had heard was that this happened to Jennifer Lawrence. This caused me to search her name on Google because I had no idea who she was. I still don’t really know except that she is the star of The Hunger Games films, which I have never seen. But she’s a pretty young woman and I’m sure that there are scores of men for whom looking at pictures of her naked will be the high point of their lives.

Looking through the Wikipedia page on the 2014 Celebrity Pictures Hack, there are two women I actually know: Kirsten Dunst, who I know from her wonderful performance in Eternal Sunshine of the Spotless Mind, and Jenny McCarthy, who I know because of her nutty belief that vaccinations cause autism. Regardless, I don’t really care.

But The Young Turks segment made me take notice. They went through five excuses that people made for why it is all okay. I should be clear, I don’t care because what these rich and famous women are going through is something that happens to literally millions of poor and unknown women who suffer far greater consequences. But I have no idea how anyone could argue that the stealing of people’s stuff is okay. Jennifer Lawrence is worth $40 million at the age of 24. Would anyone say it was okay to hack into her bank account and steal her money? I don’t think so. There is no difference between that and hacking her account and stealing her photos.

The two stars on The Young Turks found one apologia for the thefts at least somewhat compelling, “Donald Sterling had his privacy violated when his ex released audio, how is the celebrity leak any different?” How about in every possible way? V Stiviano had recorded the conversation. It was hers. Not only that, Sterling knew that she was recording, although admittedly he didn’t think it would be used as it was. How does this have anything to do with stealing someone’s private property?

In the defense of The Young Turks, Ana Kasparian does eventually get around to making this argument. But it is clear that she and Cenk Uygur have been partly blinded by the erotic nature of the subject from seeing that this is just an issue of theft. This isn’t fundamentally about privacy. Someone stole stuff from other people. That is wrong. You really don’t have to say any more.

But let’s suppose that the Sterling tape had not been released by Striviano. Suppose it had been stolen from her and made public. That situation is still not the same as Celebgate. That’s because the Sterling revelations had social merit. Sterling was a bigot whose abuse of minority groups dates back decades. If it took his insult to Magic Johnson to bring light on this, so be it. Seeing Jennifer Lawrence naked hardly rises to the level of a social good.

And before anyone complains that this is all a matter of opinion, I have some advice: stop. Of course it is a matter of opinion. John Kiriakou should not be in jail; he performed a great service to our society by revealing CIA torture. On the other hand, if someone stole Plutonium and gave it to ISIS, that would not be performing a great service for anyone — including ISIS!

So if people want to argue that the availability of naked Jennifer Lawrence photos is a great social good, I’m willing to listen. But don’t pretend that Donald Sterling is a victim in the same way that that Jennifer Lawrence is. She was robbed. And in the 2014 Celebrity Pictures Hack, that’s really all that matters.


I hate the “-gate” approach to naming scandals. That Mitchell and Webb Look says all that needs to be said:

John Dean on Why Nixon Wouldn’t Have Tortured

Nixon Fights BackRumsfeld and Cheney volunteered to help Nixon when he was sinking, but Nixon did not trust Rumsfeld (he didn’t know Cheney). Needless to say, it is pure speculation as to what Rummy and Dick “learned” from Watergate. I gave my views on the Bush/Cheney/Rumsfeld presidency in Worse Than Watergate, explaining how they imposed secrecy way beyond Nixon. This was how they got away with blatant violations of law that make Watergate look like little league. I am not sure that Richard Nixon in one of his darkest moods would have authorized torture!

Nixon served in the South Pacific during WWII, and was familiar with the horrors of Japanese torture, so I cannot believe he would have lowered the USA to tolerate such horrific behavior. With foreign policy, Nixon seemed to understand what today we call “blow-back” and that by our engaging in torture he would expose Americans soldiers (if not all Americans) to torture, just as we are seeing with Americans being captured by ISIL. Bush/Cheney have subjected any and every American kidnapped or captured to torture by the likes of ISIL. It is a decision that is going to haunt us and the world for untold decades.

—John Dean
Nixon Wouldn’t have Authorized Torture, Suggests John Dean
Via Hullabaloo

Blues Great Freddie King

Freddie KingOn this day in 1934, the great blues guitarist Freddie King was born. He was raised in Dallas but his family moved to Chicago when he was a teenager. As a result of this, he developed a style that combined the distinct music associated with those areas. By the time he was 18, he was playing semi-professionally. By his early twenties, he was playing with people like Hound Dog Taylor and the legendary Willie Dixon. It was through his connection with Dixon that he got a record contract. (The establishment felt he sang too much like BB King — not an invalid criticism.)

In 1960, he signed with Federal Records where he broke out. His first single was “Have You Ever Loved a Woman.” It was actually the B-side, “You’ve Got to Love Her with a Feeling,” that got more radio play. But I prefer the A-side. Here he is ten years later performing it live:

In 1961, King had a bona fide Top-40 hit with “Hide Away.” It is an upbeat instrumental. It too was originally a B-Side. Here he is performing it live — pretty much as it is on the original single but faster.

King’s career was marked by almost constant touring. The stress of this and his bad “Bloody Mary” diet resulted in his death of pancreatitis at the age of only 42. But he left us a lot of great music. It’s well worth check out. He was one of the greats.

Happy birthday Freddie King!