False Modesty: John Roberts’ Utter Lack of Restraint

“Fark John Roberts.” One of my conservative friends posted this comment on Facebook yesterday in the wake of the Supreme Court’s decision upholding the Affordable Care Act, in which the Chief Justice unexpectedly sided with the four liberal justices to preserve one of President Barack Obama’s landmark legislative achievements. To be fair, it is easy to understand why my conservative friend might feel betrayed that Roberts, a George W. Bush appointee with a record as a right-wing ideologue, turned a near certain defeat for Obama into a triumph. Imagine how progressives would have felt if Breyer, Ginsburg, Sotomayor or Kagan had ruled against the constitutionality of the Voting Rights Act or affirmative action.

In essence, though, they may have done just that, as the Supreme Court will soon hear cases on those very subjects. While some observers have adopted the view that Roberts used the health care reform decision to recast himself as a believer in judicial restraint, it is more likely that Roberts made a calculated ploy to achieve a major right-wing victory while also establishing cover for decisions that will have conservatives like my friend praising Roberts’ name.

Noah Feldman, a professor of constitutional law at Harvard, has been the main advocate for the “Roberts as evenhanded King Solomon” viewpoint. According to Feldman, Roberts put his politics aside and instead nobly followed his ethics. He claims Roberts feared becoming the chief of “the most activist conservative court since the 1930s” and opted instead for acknowledging Congress’ ability to levy taxes. If Obama and other Democrats had refused to identify the penalty for not complying with the health care bill’s individual mandate, then Roberts was merely speaking truth to power, forcing the Democrats to own up to the law they passed. Although Roberts made it clear in his opinion that he did not think the Commerce Clause of the Constitution allowed for Congress to impose the individual mandate, Feldman hand-waves this as insignificant, as Roberts “wav[ing] the conservative standard” and no more.

There are a number of problems with this. First, if Roberts wants “judicial restraint” to be synonymous with his court, he has done a lousy job so far. In fact, as Jeffrey Toobin, Thomas Mann and others have exhaustively documented, Roberts took a major role in the now infamous Citizens United decision in 2010. Assuming you’ve been living under a rock for the last three years, Citizens United overturned over a century of national and state campaign finance laws, equating corporate donations to political campaigns with free speech and basically undoing all legal obstacles to “dark money” in politics. Rather than determining whether the McCain-Feingold campaign finance law applied to a documentary, Toobin tells us Roberts instead overruled not just McCain-Feingold but two Supreme Court precedents – one decided as recently as 2003 – ensuring “moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” Cleverly, Roberts allowed Anthony Kennedy, an extreme libertarian for whom “government regulation” is a dirty word, to pen the majority decision, thereby distancing Roberts from charges of hypocrisy. After all, during his confirmation, Roberts had claimed he would defer to precedent. Citizens United proved otherwise, and given its notoriety as the Roberts Court’s most well-known decision so far, Feldman’s claim that Roberts wants a modest legacy is clearly risible.

The second problem with Feldman’s argument is that Roberts’ reading of the Commerce Clause amounts to much more than hat-tipping to a right-wing talking point. In her dissent, Ginsberg called Roberts’ interpretation of the clause “stunningly retrogressive,” likening to that invoked at the turn of the century, when the Supreme Court elevated contracts between employees and employers above social issues. This period, known as the Lochner era, saw the Court issue numerous rulings that struck down laws protecting the health and safety of working people. If Roberts is indeed signaling his intent to take the Court back to this view, in which the Fourteenth Amendment equates to social Darwinism (to paraphrase Oliver Wendell Holmes’ dissent on Lochner), the implications are huge. If Congress does not have the power to regulate health insurance, whose market exceeds $2 trillion per year and takes up over 17% of our yearly GDP, what power would it have to regulate the energy industry and combat global warming? Perhaps more importantly, what could happen to other laws that rest on the conventional doctrine of the Commerce Clause, like the Civil Rights Act of 1964, should they come up for review in the future? A new, strict reading of the Commerce Clause is a radical step for the Court to take – or, more accurately, a massively reactionary step that takes the Court to a mentality over a hundred years in the past. It is doubtful that progressives showering love on the Court’s decision on the Affordable Care Act will do the same when the Court potentially uses the decision to permit businesses to discriminate against non-white customers or to allow those businesses to pump as much emissions as they please into the atmosphere.

It may not take as long as one of those hypothetical scenarios coming true for liberals to resume their hatred for Roberts and the Roberts Court, however. Sometime next year, the Court will determine the constitutionality of Section 5 of the Voting Rights Act, which forces several jurisdictions (mostly in the Deep South) to get “preclearance” from the Justice Department to amend their electoral laws. The point of the law then and now is to prevent those jurisdictions from passing reforms that would make it difficult or impossible for racial minorities to vote. The Voting Rights Act was renewed for 25 years in 2006, prompting outrage from conservatives, who predictably argued that times have changed and racial discrimination vis-à-vis voting is no longer a problem. The issue came before the Supreme Court in 2009 but was dismissed on technical grounds, but not before Roberts indicated he would strike down Section 5 because “discriminatory evasions of federal decrees are rare” and “minority candidates hold office at unprecedented levels.” Yet is it all that remarkable that “minority candidates hold office at unprecedented levels” when that level was negligible fifty years ago, when Jim Crow was in full effect? We may have an African-American president in the White House, but the cases of Henry Louis Gates, Jr. and Trayvon Martin demonstrate we certainly do not live in a “post-racial society.”

More to the point, though, the rise of voter ID laws in mostly Southern states (surprise, surprise) serves as proof positive that voting rights laws are still relevant. Led by neo-nativists like Kansas Secretary of State Kris Kobach, right-wingers throughout the South and Heartland are promoting the baseless conspiracy theory that voter fraud is a major issue that requires the implementation of voter ID laws as well as purges of “non-citizens” – who, as the Washington Post points out, may actually be citizens entitled to vote. Although research shows actual occurrences of voter fraud to be minor at most, Republican governments – like Rick Scott’s government in Florida – are going forward with efforts that may end up disenfranchising minority voters who tend to vote Democratic (surprise, surprise again). If anything, Obama’s election in 2008 awoke an ugly side of conservatives, revealing a prejudice that if minorities turned out in huge numbers to elect one of their own, they must be doing it illegally. If the protections provided by the Voting Rights Act have been successful, that success is not an argument for the act’s demise.

If Roberts is poised to kill the Voting Rights Act, his axe is also sharp for affirmative action. Many thought the issue settled for some time in 2003 with the Grutter decision, in which the Supreme Court allowed states to consider race in university admissions processes. Yet this will likely be reversed when the Roberts Court hears Fisher v. University of Texas, as Roberts showed in a 2007 opinion that he does not see much merit in affirmative action as a method of promoting “racial diversity.” With Kagan stepping to the sidelines due to her involvement in the case as solicitor general, the door is wide open for Roberts to lead the way in once again reversing something most people would have stated was settled.

Feldman’s analysis is wrong. Roberts did not put his principles before politics. If anything, this Supreme Court is defined by its partisanship. Like most Americans, I don’t expect the Court to be unanimous in its decisions. The Court is not intended to hear easily resolved cases, obviously. What is expected, however, is that the Court’s justices put aside their personal ideologies in the interests of doing what is just. In many instances, this means affording proper reverence to past decisions, giving fair treatment to plaintiffs and defendants alike. In rare cases, the Court may break with precedent, as it has done on civil rights, when justice conflicts with the law. It is hard to perceive, however, what is just in allowing money to drown out regular people in politics, in preventing the federal government to manage economic activity, in permitting obstacles to minorities voting or in blocking institutions from seeking diversity in their admitted membership. It is very easy, though, to see how this Court serves the interests not of the public but the political parties that put them where they are.

The legacy of the Roberts Court will not be one of pragmatism, restraint or diffidence. Instead, it will be a dismal exhibit of when the expediency of political interests tipped the scales of justice.

Advertisements

After Mubarak, It’s the SCAF-terparty

(I intended to post this last week, but due to some issues with posting on WordPress, I was unable to do so until now. Other than there being a new Egyptian president, most of the post is still relevant.)

News outlets buzz with stories about the failing health of ousted Egyptian dictator Hosni Mubarak. Yet does it matter whether the former despot lives or dies? Even if he passes away in the next few days, the institution he used to govern the country – the military – retains their hold on power. The tens of thousands people returning to Tahrir Square, the main site of Egypt’s protests during the Arab Spring, are not coming back because of Mubarak. They are resuming the expression of their dissent because the Supreme Council of the Armed Forces (SCAF), the generals currently ruling Egypt, has declared strict limitations upon the powers of the newly elected president. Who that newly elected president is, however, is unclear, as both the Muslim Brotherhood candidate, Mohamed Morsi, and the candidate of the old regime, Ahmed Shafiq, have proclaimed victory. All this follows on the heels of the Supreme Constitutional Court, which is closely linked with the SCAF, dissolving Parliament and giving a seal of approval to Shafiq’s candidacy, despite his ties to the brutality of the Mubarak era. Egyptians are rightfully concerned that their new democracy is at death’s door, not Mubarak.

Is it fair to blame the Egyptian people for the dark prospects their revolution faces? After all, it is long-entrenched institutions have stymied and reversed democratic reform, not the people, who cannot be accused of a lack of enthusiasm for change. Nevertheless, one can fault them for the half-measures with which they have sought that change, enabling the generals and their judicial allies to undermine and reverse the gradual seizure of power away from the narrow elite. Two developments especially testify that the Egyptian revolution has been stillborn: the emergence of Ahmed Shafiq as a serious contender for the presidency, and the very fact that the SCAF rules the country in the first place.

Given that the ongoing narrative is that Egypt just went through a revolution, it is illogical that Ahmed Shafiq could potentially be the new president. It would be the equivalent of the French Jacobins electing a member of the royal family to head the National Assembly. The former prime minister who once described Mubarak as a “role model” does not stand for where people want the country to become in the future, but rather what it used to be. Who would want that? Those who benefited under Mubarak, of course. Mubarak ruled through the military, and army officers would be understandably reticent to see that end. Additionally, there are the millionaires who thrived despite the growing income disparity and rising poverty of Mubarak’s Egypt, along with crooked bureaucrats and other officials who enjoyed luxury thanks to nepotism and graft. Every revolution has its reactionary elements.

More worrying are those among the oppressed who nurture that which destroys them. Long-suffering Coptic Christians fear what will happen under an Islamist administration rather than a secular one. Liberals disenchanted with widespread support for the Muslim Brotherhood have decided to sit on the sidelines and sometimes even vocalized preference for a liberal dictatorship than a religious democracy. Then there are those who simply want stability for stability’s sake – for someone to fill the power vacuum, regardless of who they are or what they represent as long as they can bring order and a return to “normalcy.”

These people are buying into the very argument Mubarak attempted to use for his continued stay in power. He claimed that without him there would be anarchy. Of course, as my former professor Diane Singerman and the famed intellectual Slavoj Zizek have pointed out, Egypt is so unstable without a strongman government precisely because Mubarak crushed civil society and let it languish, ensuring that only those institutions groomed and developed by him – the military chief among them – could ever hope to impose themselves on the country. As Zizek put it, “The argument for Mubarak – it’s either him or chaos – is an argument against him.”

Mubarak is no longer relevant, but his military cronies remain. The assumption is that the SCAF will only fill the void, playing a transitional role before standing aside, giving up the control and influence it has enjoyed with near-exclusivity for around thirty years. We are expected to regard SCAF as Atlas from Greek mythology, holding up the heavens as a punishment, a begrudging but necessary responsibility, one that those belabored generals would only too happy to relinquish – especially to candidates of the Muslim Brotherhood, the very organization the Egyptian military has spent decades upon decades stamping out, the very “enemies of the state” they have been indoctrinated to despise. How naïve would someone have to be to accept this fiction? The SCAF will hold on to power, tooth and nail, and whether the acts of the last few weeks speak more to uncertainty and confusion than to a genuine stealth coup d’état ultimately matters little. The outcome will be the same: the dream of democracy in Egypt remaining just a dream, an experiment too dangerous for the public to actually realize.

Egyptians should take a lesson from history and know that when the state is weak and vulnerable it cannot be trusted to change for the better. It must be torn down and destroyed, then rebuilt on new terms, on new conditions, with the people overseeing the project by themselves. The generals of the SCAF should not be sitting behind desks making executive decisions but standing before a firing squad – or, at the very least, on planes to sit at the Hague, in the stead of Mubarak, their former boss.

Much Ado About Nothing: Journalism’s Unjustified Indignation

Now that Mitt Romney has the Republican nomination locked up, we have entered a familiar phase in U.S. politics where every femur, fibula and mandible of the skeletons in the candidate’s closet comes up for examination in the media. Inevitably, countless pundits will dissect and (over)analyze every detail from Romney’s life, from his youth to his business and political careers, formulating hasty judgments about a complex person’s words and actions to arrive at some pithy sound bites about that person’s words and actions. Equally inevitably, Romney’s detractors will spread his faults and foibles as far as they can while his supporters will proclaim those detractors to be biased and distracting from important issues. Such media circuses should surprise no one familiar with U.S. politics and how mainstream journalists cover it.

Yet it did, however, surprise Jim VandeHei and Mike Allen, two senior figures at Politico, a media organization specializing in political journalism. On May 31st, VandeHei and Allen published an article entitled “To GOP, Blatant Bias in Vetting.” One would reasonably expect the piece to be a relatively neutral relaying of major Republican figures complaining about how little coverage President Barack Obama, a Democrat, gets for his past and present shortcomings, while Romney’s deficiencies are overexposed and exaggerated. If that had been the case, it would be just rumination on the common conservative criticism that there is a “liberal media bias” in which progressive personages and causes receive positive portrayals in newspapers and on TV while conservative counterparts are demeaned and demonized.

The article surpassed expectations, however, as the article may well have been named “To GOP and Politico, Blatant Bias in Vetting.” VandeHei and Allen make it clear that not only do Republicans think there is a bias against media coverage of Romney, but that those Republicans are correct to think that:

“…[T]he 5,500-word account [about Romney being involved in homophobic bullying in high school] was invested with far more significance than it merited, and is more voyeuristic than relevant to assessing Romney’s readiness for office.

The Post’s top political blogger, Chris Cillizza, wrote Tuesday of his paper’s hit: ‘Romney appears to have weathered — at least for now — a Washington Post story detailing some bullying behavior in high school.’ The implication: that there’s an authentic debate about how a candidate behaved 50 years earlier.”

VandeHei and Allen go on to discuss dismissively how the New York Times featured prominently a story about Ann Romney and her involvement in horse-riding, indicating that the story both depicts the wealthy Romneys as “out-of-touch” with the average American and suggests Ann Romney may have been involved in some dishonest horse-trading (of the literal kind). Meanwhile, they noted, the Washington Post and the New York Times treated revelations that Obama had smoked marijuana at one point in his life as small stories, while the ones about Romney ended up on the front pages of their respective publications.

Other journalists soon started tearing Politico the proverbial new one. Devin Gordon, a senior editor at GQ, lambasted the article as an “unsigned house editorial” posing as a news story and accused VandeHei and Allen of cynically attacking their competitors in order to gain readers, not to report the truth. The left-wing blog site Talking Points Memo referred to it as an example of “aggressive concern trolling on behalf of conservative complaints about media bias.” Erik Wemple, who covers media for the Washington Post, wrote that it reflected Politico’s disappointment that they had not broken the stories about Romney and that it was hypocritical for Politico to talk about “voyeuristic,” irrelevant reporting about Romney’s past and pastimes when Politico has extensively covered the same stories themselves. Dylan Byers, Politico’s own media blogger, attempted to defend his colleagues by arguing that VandeHei and Allen were not complaining about the stories being covered at all (which is a stretch, as the above excerpt alone attests that the authors considered the stories to be hit-pieces designed to drudge up old muck, not significant revelations). Byers reframed VandeHei’s and Allen’s article as being about the disparity between coverage of Romney and Obama, concluding that the disparity is simply a symptom of the differences between digital and print media. Of course, this rings hollow too, for while Web pages may not actually have “front pages,” news sites can and do choose which stories they’re going to blast in 36 point font and which they are going to post as a blurb after you scroll almost to the bottom.

Obviously, Byers is wrong and so are VandeHei and Allen. Politico rather nakedly went after the competition, armed with the “liberal media bias” weapon, when they themselves have devoted ample HTML to the very stories they lamented the Post and Times had given so much time to. It was a play straight out of the FOX News playbook, whose motto of “fair and balanced” is less an accurate objective description (since everyone and their mother knows that FOX has a conservative slant) and more about playing into the ideological worldview universal to all zealots that, if a fact contradicts an ideology, it must be because the person conveying the fact is an ideological enemy. Granted, digging up dirt and slinging said dirt about a candidate rather than discussing the issues is an unfortunate part of politics and whether or not Romney engaged in homophobic bullying as a teen pales in comparison to what he would do to retard the progress of gay rights as president. Still, Politico taking the moral high ground when it comes to journalistic integrity is risible, and should be so regarded.

Of course, I cannot in good conscience attest that the Post and the Times have been doing stellar jobs. The same day that the Politico article went online, Glenn Greenwald posted about the government-orchestrated, media-supported campaign to smear WikiLeaks founder Julian Assange and WikiLeaks contributor Bradley Manning. Greenwald draws parallels between Assange and Manning with Daniel Ellsberg, who released the Pentagon Papers and who was himself a victim of a smear campaign by the Nixon White House. Whereas the effort to tarnish Ellsberg’s name largely failed, Greenwald observes that, today, public opinion has turned against WikiLeaks and those associated with it because the media has been so effective at vilifying Assange and Manning as perverts and deviants:

“Who wants to be seen advocating for an unhygienic, abusive egomaniac or a psychologically crippled, gender-confused, vengeful freak: the caricatures of Assange and Manning that have been successfully implanted in the public mind by today’s Nixonian smear artists? The truth or falsity of these caricatures matters little for this tactic to work: once someone is rendered sufficiently radioactive in Decent Society, even many who are sympathetic to their cause will turn away, become unwilling to defend them, lest any of the slime relentlessly poured on the whistleblowers splatter onto their defenders.”

Greenwald points out that mainstream media figures, even those who have authored some of the pieces personally attacking Assange, have come out against the U.S. government charging the WikiLeaks with a crime. Regardless, it is sadly humorous to read about journalists talking about their responsibilities to reveal information that powerful people do not want to share with the world as a defense for their muck-raking on politicians, yet eschewing that same responsibility by going along with the obvious Washington agenda to turn WikiLeaks into a virtually terrorist (if not terrorist-aiding) organization. Personally, my mind is not made up about Assange, his personality defects or the charges against him in Sweden. I am, however, fairly confident that Manning is more whistleblower than war criminal, yet he is being treated by the government as the latter. In any instance, the journalistic community should devote less time to analyzing and re-analyzing the personal histories of the individuals involved and be more concerned with the what, when, how and why behind how the U.S. government has misled the public and the world on foreign policy, especially our two never-ending, unpopular wars.

Journalists are educators. They should primarily report the facts in order to better inform their readers, watchers and listeners, and not simply what competing ideologues or spin doctors say or believe. Journalists are not just neutral umpires obligated to offer “he said, she said” versions of events, but instead to dig deep and supply the answers to questions that really matter. At the same time, journalists should pursue those stories which are in the public interest – which have the greatest impact on domestic issues and our foreign policy. The extensive use of Predator drones, for example, and the almost daily “collateral damage” they cause with their “precise” attacks has a gigantic influence on our relations with important strategic allies like Pakistan, yet – again as Greenwald points out – the media gives more time and space to civil war in Syria. Part of this is laziness, no doubt, but it also reflects that the media will, generally, go with the dramatic story in a far-off land that Washington can pontificate on while avoiding unpleasant topics that Washington would much rather deny.

There can be no excuse for the Politico piece. It was bad journalism, pure and simple. Simultaneously, other news organizations cannot credibly claim that they are practicing good journalism themselves. Yes, Politico put business interests above objectivity and their responsibility to be fair and candid. For their peers to call them on it without admitting they too have largely forsaken speaking truth to power for speaking the power’s truth, however, is just as dishonest.