I read a remarkable article today over at SCOTUSblog today by Yale Law Professor Abbe R Gluck, The Grant in King — Obamacare Subsidies as Textualism’s Big Test. She is a big advocate of textualism — the theory that judges should base the decisions only on the text of the law. As I discussed in, Originalism, Textualism, and Politics on the Supreme Court, this is usually misidentified as “originalism.” So textualism is the theory that supposedly animates such conservative judicial titans as Scalia and Thomas.

According to Gluck, the case in King v Burwell, which threatens to destroy Obamacare, is the ultimate test of textualism. If Scalia and company find for the plaintiffs, they will do so because they don’t like Obamacare and it will “threaten all that textualists have accomplished.” She argued that the case is not about what the law says versus what the intent of the legislators was — the critical issue in textualism. Rather it is all about what the law itself says. In fact, the plaintiffs can only make their case by resorting to non-textual arguments about what Congress did or did not mean when it wrote the law.

She further noted that Scalia himself recently argued that “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” And in another case he argued that the court should read legislation such that it “does least violence to the text.” So, is the “liberal” reading of the text this time the “textual” reading? It would seem so.

The critical clause that the plaintiffs have latched onto is in section 1401 that states that subsidies will be based upon the premiums found through the “Exchange established by the State under 1311.” Section 1311 gives the law about the state exchanges. But that isn’t the end of it:

It seems pretty straight forward. The plaintiff’s case is dependent upon saying, “We know that Congress meant to not provide these subsidies to the states because they wanted to encourage the states to set up their own exchanges.” But this isn’t in the text of the law. I would add that the evidence of this being the case is pretty weak anyway. The interesting thing in this case is that it shows that the conservative efforts to destroy Obamacare has a scattershot approach. I doubt very seriously that the people at the Cato Institute who came up with this idea thought very much of it. But the idea is just to throw everything at the courts and hope something sticks. The last time it did, it was, “Could the government force people to eat broccoli?!”

Gluck seems a little freaked out about this case. I can’t speak for her, but I assume she’s thinking the same thing that I am: the conservative textualists don’t much believe in the theory. It has always been a simple justification for coming to their conservative (neolithic) decisions. And now that a case comes up where the choice is either to apply the textualism they supposedly believe in or to destroy a law they don’t like for other reasons, they will simply abandon textualism.

Of course, here we are primarily talking about the two justices: Scalia and Thomas. Kennedy and Alito will vote for the plaintiffs just because they hate the law. That leaves Roberts, who voted to uphold the law in National Federation of Independent Business v Sebelius. Wouldn’t he vote to uphold it again? Probably not. As Bill Gardner noted earlier today, this case allows the conservative justices to greatly harm the law (very likely fatally) without killing it outright. It doesn’t look good.

What’s sad about all this is that it shows what a sham the Supreme Court is. At this point, the conservatives on the court are as partisan as any member of Congress. I fully expect to see Scalia and Thomas cast aside all their high ideals for a chance to strike a blow against Obama’s most important piece of legislation. But it won’t matter. Anyone who is not already convinced that they are partisan hacks will never see what’s really going on.

On this day in 1889, the great actor Claude Rains was born. Most people know him from Casablanca where he was, “Shocked to find that gambling is going on in here!” Or you know him as the corrupt but ultimately decent Senator in Mr Smith Goes to Washington. Or maybe you are a fan of The Rocky Horror Picture Show and you know that, “Claude Rains was The Invisible Man.” That last one was Rains’ first real film role in the James Whale classic.

Rains was well into his forties by the time he made it to Hollywood. By the early 1920s, he was a successful stage actor as well as an acting teacher at the Royal Academy of Dramatic Art. In fact, he taught two of the greatest actors of the century: John Gielgud and Laurence Olivier. By the late 1920s, he had moved to New York, where he was a star on Broadway. He came to Hollywood in 1933 to make The Invisible Man and the rest, as they say, is history.

But maybe not. I think people tend to under-appreciate how important Rains was. He had major parts in 50 feature films, in addition to an active later career in television. And he was the first actor to receive a million dollars for a film, in George Bernard Shaw’s Caesar and Cleopatra with Vivien Leigh. Of course, the film was a flop. But I don’t know why. I haven’t ever seen it. (But I’ve requested it; I’ll let you know.)

Let’s watch a little of Rains’ work. First, here is the trailer for The Invisible Man:

Here is a wonderful scene from Caesar and Cleopatra:

And since I can’t find anything from Notorious, let’s just go with a little Casablanca:

Happy birthday Claude Rains!

Jonathan Cohn tried to throw a little cold water on the Republican triumphalism last week, McConnell Didn’t Win Everything. His argument is that the Republicans paid a big price for their win on Tuesday. There are two parts of this. McConnell’s scorched earth “oppose everything” approach to the Obama administration meant that the Republicans had no input into the quite substantial legislative successes of the first two years. We could go further than that and see that Obama now feels he can do rather a lot through executive action because he has no real relationship with with the Congressional Republicans. It isn’t as though they are going to scream any more (or less) regardless of what he does.

The second part of Cohn’s argument is kind of funny: McConnell failed in his primary goal. Remember, McConnell didn’t say, “The single most important thing we want to achieve is to take control of the Senate in six years”; he said, “The single most important thing we want to achieve is for President Obama to be a one-term president.” So even though it has got to be sweet to have this victory that was a long time in coming, it was not the success he had planned.

I think I would go in an even more extreme direction. McConnell has been a complete failure. He didn’t manage to take the Senate in 2010. In 2012, he actually lost seats, even though the fundamentals were good for him. The only way that his cunning plan can be seen as a success is if the Republicans keep the Senate and take the White House in 2016 — a result that is not even likely, much less assured.

Of course, now we have the ever wrong Megan McArdle who wants to know, Does Obama Even Know How to Negotiate? She says that Obama isn’t being nice after “McConnell’s rather gracious remarks.” I mean, can you imagine? McConnell has said publicly that he’s willing to work with the president! Obama should bend over to kiss his ring (and other things). Of course, we know that over the years McConnell has made similar vanilla statements about working together, and they always mean the same thing: if Obama is willing to do exactly what McConnell wants, they have a deal. (In theory.) Obama is just treating him the same way. The difference is that Obama actually has the power to do things by himself.

McArdle’s main argument is that since McConnell isn’t an ideologue, Obama will be able to make deals with him. Scott Lemieux over at Lawyers, Guns, & Money tears this argument to pieces:

The truth is that McConnell’s plan has always been to maximize his power. Critical to that plan is to put a Republican in the White House in 2016. And that means doing what he has done for the last six years: stop the Democrats from doing anything at all. As I’ve discussed in the past, this is probably a bad plan. All the Republicans have really succeeded at is slowing the economic recovery so that by 2016, we will probably have a better economic recovery, making a Democratic win far more likely. But McConnell is not going to change his plan now. And even if he did, it is probably too late.

With Sunday comes another article by Thomas Frank, and I was very interested to hear what he had to say. After all, he sounded semi-hopeful last week when it looked like the Kansas voters might finally have had too much and would through out Sam Brownback from office. Yet the incompetent ideologue managed to stay in office, beating the extremely moderate Democrat Paul Davis by just short of four percentage points. But really, what is there to say? Frank has said as much himself: there is no line in the sand; for much of the American middle class, there is no level of incompetence and the total disregard of the interests of the people that will hurt a politician with an R after his name. In most states, the poor are reliably Democratic. But that’s not true in Kansas; even there they pull the lever for the Republican. Because freedom or innocent babies or something.

Well, this week, Frank doesn’t have anything much to say about Kansas other than to talk about the robo-calls, The GOP’s Poisonous Double-Speak. He lists low turnout first as a reason for the bad election results. But his main interest is the fake-populism of the Republican Party. And I’ll admit, in a general sense, it has been a very big thing. After all, why was the Tea Party — those angry middle-class voters — so dedicated to the interests of the power elite? But I think the reason for this is just that conservative rage is strong and aimed at some diffuse “other.” So they were always going to find a conservative agenda to follow.

Frank’s conclusion is this:

But I’m afraid we may be in “Old Man Yells at Cloud” territory here. It’s true. Of the two parties, only the Democrats have any kind of claim to economic populism. But it is the Republicans who manage to actually use it as an electoral tool — even if they never come close to it in terms of policy. And it isn’t like the issue hasn’t been out there. Thomas Frank himself has been making this argument. This was more or less the argument he made in 2004 with What’s the Matter with Kansas? And it is exactly the argument he made in 2011 with Pity the Billionaire.

We can rack our brains and try to figure out how the Democrats could use economic populism to its advantage. But I think that is missing the point. It isn’t that the Democrats can’t figure out how to use economic populism. It is that they think they already own the brand of “economic populism” too much for the comfort of their billionaire funders. This always reminds me of a line from The Right Stuff, “Our Germans are better than their Germans.” That is pretty much the Democrats’ line, “Our billionaires are better than their billionaires.” But as far as I can tell, they are only better in that they are pro-choice and pro-gay. In terms of economics, they don’t really seem to be different. And that means economically speaking, the Democratic Party isn’t much different from the Republican Party.

Look: I’m not saying that the parties are the same. Clearly, the Democratic Party is the one we need to work on. But it does need to be worked on. We, the Democratic base, have to force the Democratic Party to take a hard left turn into the heart of economic populism. The Republicans’ fake-populism on economic issues will remain powerful as long as real economic populism is not offered by the Democratic Party.

Martin Longman wrote a really thought provoking article over at Washington Monthly that pushes back against the fundamentals obsession of people like me, The Midterm Results Were Not Completely Preordained. I said “thought provoking,” however — not “right.” But the title of his article is right on: fundamentals are not destiny. And even I know that, as much as I may harp on them. Fundamentals tend to swamp everything else, but political scientists only claim that the economic trend in presidential years is responsible for 40% of the election results. That leaves a lot of other things to tip the balance. And that’s even more true in statewide and (especially) local races.

Longman’s first point is striking. He presented a graph of House results in Pennsylvania, Ohio, and Michigan in 2012 and 2014. Even though the Republicans got a much higher percentage of the vote in 2014, they ended up with exactly the same number of house seats in each of the three states. When I saw that I was speechless. But it didn’t take long to come to the same conclusion that he did:

And Longman isn’t exactly cherry picking. Currently, there are only 15 House seats nationwide that flipped, and another seven that are too close to call. It does show the pernicious effects of gerrymandering. And for the record, I’m very tired of hearing people claim that pushing all urban areas into as few districts as possible is not gerrymandering. The truth is that we could have laws that would divide states up in the most equitable way possible and we don’t. There is nothing natural about our current state.

The second point is more diffuse, but Longman noted the polls were particularly off on the statewide elections in Appalachia. And yes, the Democrats could be a lot more populist in terms of economics. But the fact was that the media was not interested in reporting these issues anyway. Instead, it was ISIS and Ebola — two issues that implicitly and explicitly made Democrats look weak. (Although note: is there anything to fear from either now? No!)

Something that I think Democrats need to consider very carefully is the party’s brand. By talking more about economics — an issue where even many conservative voters agree with “liberal” policy — the Democrats would not likely have won any more states. But they likely would have done better. And they would have started the generations-long process of winning the ideological debate about these issues. The problem, as I’ve discussed many times before, is that I don’t think the power elite in the Democratic Party want to win this debate. They are happy to talk about abortion and same sex marriage; but economic issues are as much a threat to them as they are to the Republican elites.

Regardless, political parties can’t just focus on the fundamentals — waiting around for the right conditions for them to get into power. For one thing, they would be in no position to exploit the opportunity once they got in power. I think that is largely what happened with the Democratic Party in 2008. Obamacare was fine, but why didn’t the party even start thinking about minimum wage until 2012? But issues like this are not just good policy, they are good politics. And they help — especially in close races. And this year, the Democrats lost almost all of the close races.

Let us return to 2005, the year the American voter realized it had made a terrible mistake in the election the year before. You remember, if 2004, the voters were promised that Bush would “Get the fags!” But once re-elected, the voters found they had voted to “Privatize Social Security!” If ever there was a simple example of What’s the Matter With Kansas? it was Bush and his craven use of a conservative social issue to push a conservative economic wet dream. But 2005 also stands as the ultimate example of conservative overreach: Terri Schiavo.

As you may remember, Schiavo was an unfortunate woman in Florida who had a heart attack in her home. Due to lack of oxygen, she had massive brain damage. After 15 years, doctors had diagnosed that she was in a persistent vegetative state — that is to say, she was more or less what we think of as a zombie; she was no longer Terri Schiavo but rather just a body with a functioning brain stem. It was a tragic situation. Her husband wanted to end her suffering and move on with his life; her parents understandably wanted to hang on.

So the parents put together a video tape of their interactions with her. It was cut together from hours of tape, throwing together all the moments when it seemed as though Schiavo was responding to them. I don’t think they were meaning to be dishonest. When the will to believe is strong, one can be convinced of just about anything. I see no villains in the actions of any of the people directly involved. But the Terri Schiavo case did not stay confined with those directly involved.

First, the Florida Republicans got involved. It passed “Terri’s Law” that allowed Jeb Bush to take control and have Schiavo’s feeding tub reinserted. When the law was found to be unconstitutional, the case ended up at the Federal Level. And that’s when Senate Majority Leader Bill Frist got involved. You see, he is a physician — a heart surgeon. And in one of the great acts of hubris, he countered the doctors’ diagnosis, even though they had actually spent time with Schiavo to determined her condition, “I question it based on a review of the video footage which I spent an hour or so looking at last night in my office.” It was also, of course, an ethical breach. It was clear that he was just saying what was politically expedient and using his medical degree to provide a patina of legitimacy. It amazes me that such actions do not cause doctors to lose their licenses.

But as bad as the 2005 Republican Party was, it really doesn’t hold a candle to the modern Republican Party. And this is especially evident on the RNC propaganda channel known as Fox News. I’ve been reminded a lot of Dr Frist when I’ve heard psychiatrist Keith Ablow who has been on the station for years as part of its “Medical A-Team.” (God help those treated by the “B-Team”!) And in that capacity, he has been psychoanalyzing President Obama, who he has determined has abandonment issues that cause him to hate white people. Here’s a good collection put together by Madia Matters for America:

Remember: this is the kind of stuff coming from the authoritarian conservatives. They have absolute respect for their own leaders and are shocked (“Shocked to find that gambling is going on in here!”) that anyone would even disagree with them. But they automatically treat opposing leaders as though they were common criminals. And Ablow is about the worst that they come. He is more than willing to prostitute his psychiatric degree for political gain. It is hard not to conclude that Ablow would have been one of those Nazi doctors doing “experiments” at the concentration camps. But I can’t say for sure, because just as with Ablow regarding President Obama and Frist regarding Schiavo, I have never met the man.

On Thursday, David Bauder at the Associate Press reported on a little push back, Fox‘s Ablow Regularly “Diagnoses” Obama. It contains a number of quotes from psychiatrists who are bothered by what Ablow does and how it reflects on the profession — something Ablow certainly doesn’t care about. But I was struck with the fact that even people at the crazy Media Research Center have a problem with him. Tim Graham criticized the whole issue of psychoanalyzing the president.

But he bugged me by noting that people on the left said that Bush the younger had “daddy issues.” This is false equivalence. To begin with, people were making a common observation, not a psychological diagnosis. Regardless, it was not psychiatrists coming on television claiming that they were objective scientists and they knew that Bush was invading Iraq because he was trying to prove to the world that his penis was bigger than his father’s.

It speaks poorly of our society that Ablow is not just considered unacceptable. Certainly he would have been at any time before the creation of Fox News. And I really do think that this is an important event. I doubt that Terri Schiavo would have been such a big deal without Fox News and all the rest of the right wing echo chamber. It creates a place where they can all get together and talk themselves into believing anything. And the nation is far worse off as a result.

I find this offensive. Last year, JPMorgan Chase made a deal with the Justice Department to pay the largest fine in history, $13 billion, blah, blah, blah. But the big deal is not the fine, because, hell, it’s JPMorgan Chase; the company still made $18 billion that year. I think a major bank robber would be fine with a deal that only required him to pay 40% of the money he made that year. In fact, most regular felons have to pay a lot more than that in restitution. The money means nothing. But here’s the important part: according to the Washington Post, “The Justice Department and JPMorgan are hammering out the final details, including a statement listing what the company did wrong.” Consider our poor bank robber again. Can you imagine what a terrible thing it would be to be forced to admit his guilt?! I mean, the 30 years in jail is nothing compared to that! Of course, JPMorgan might also be open to further legal proceedings — focus on the “might” as in “won’t.” I mean, it’s been a year. Have you read about any indictments?

That was then. On Thursday, Matt Taibbi published a bombshell article, The $9 Billion Witness: Meet JPMorgan Chase’s Worst Nightmare. It is about Alayne Fleischmann, a securities lawyer who used to work for JPMorgan Chase. And she tells the inside story of last year’s settlement. In brief: managers at the bank not only knew about the criminal behavior that was going on, they were the ones pushing it.

Fleischmann worked under the manager for diligence who did not want any of his subordinates to send him email. He wanted everything done verbally, we assume because he didn’t want a paper trail that would lead to him after the bad securities the bank was approving blew up. Fleischmann and other subordinates did not approve many of the mortgages that were in the securities. This meant the securities could not be sold. So the subordinates were put under extreme pressure to okay bad loans.

What I find most interesting about this is that the situation is that the low-level employees like Fleischmann are the ones being set up for the fall. When the securities were shown to be the garbage everyone at JPMorgan Chase knew they were, the managers could feel safe with their bonuses knowing they could always claim that they were the victims of their subordinates who approved bad loans. It is despicable.

Fleischmann stands to lose her license and much more for coming forward because of a confidentiality agreement she signed. And it would be entirely typical of American “justice” that she gets punished while the actual criminals do not. And the criminals are everywhere, even at the very top of JPMorgan Chase:

Why isn’t Dimon doing years in jail? Because that sort of thing just isn’t done to the likes of him. If he were ripping people off for five bucks by doing three-card monte in the subway, he’d be in jail. But defrauding people out of hundreds of millions of dollars somehow makes a man respectable.

So five years pass and the Justice Department contacts Fleischmann and gets all the goods on JPMorgan Chase. They are going to announce a widespread fraud case against the bank. But then Dimon calls the number three man at Justice and tells him the bank wants to negotiate. So the fraud case is dropped and JPMorgan pays a few billion and admits, “Yeah, some unnamed people misbehaved.” As Dennis Kelleher of Better Markets said, “It would be like charging a serial murderer with a single assault and giving them probation.”

And in the end, that $13 billion figure was a joke anyway:

As for the criminal investigation, well, the Justice Department apparently just dropped it. Fleischmann was not contacted for almost a year. She is understandably skeptical now. Consider what Eric Holder said about holding bank managers accountable, “Responsibility remains so diffuse, and top executives so insulated that any misconduct could again be considered more a symptom of the institution’s culture than a result of the willful actions of any single individual.” As Taibbi commented, “In other words, people don’t commit crimes, corporate culture commits crimes!” In a regular criminal case you would never see this. After a criminal was looking at decades in jail, then the defense could make social pleas. But when it comes to corporate crime and billions of dollars the Justice Department starts there, “They aren’t bad guys!”

As for Fleischmann, it will probably go very badly. If she doesn’t lose her license altogether, she will be blackballed. I’m sure the financial press will pick her life to death. But that’s what happens to ethical people in our society. Other than that, expect JPMorgan Chase to make even more money and for Jamie Dimon to get another raise.

Afterword

Check out the great Democracy Now! interview with both Taibbi and Fleischmann.