FISH WRAP: WEEK ENDING 7/1/12

by E.C. Fish on July 2, 2012

ISSUE OF THE WEEK — THE SUPREME COURT IS TRYING TO KILL ME: The end of this year’s Supreme Court session, featuring major and in some cases politically definitive decisions on a number of key issues, has made this a ridiculously heavy news week and offered us political junkies myriad opportunities to overdose on the purest batch of wonkstash to hit the street in many a moon. What this has cost me in terms of time, distraction, anxiety, and sleep is something I won’t get into in any detail. Suffice it to say that by rights, I should be in bed right now sipping Gatorade through a bendy straw. Instead, I am hopped up on coffee and hunched over a hot laptop telling you this. You’re welcome.

Part of this is due to the fact that the justices literally waited until the last possible minute to turn in their homework this year, possibly in the hopes of drowning out the fine details of some very controversial decisions through sheer volume — the public relations equivalent of a denial-of-service attack. More, though, has to do with the reasons we’re paying such rapt attention in the first place.

It didn’t used to be like this. Back in the good old days when the court was a trusted and popular institution, it was possible for a political commentator to pay only cursory attention to the end of the session, on the assumption that judicial independence would keep the justices from making too much political news. That assumption died a horrible and violent death back in 2000, mangled helplessly under the weight of the Bush v. Gore decision, which has metastasized into a Bush-completed 54 activist conservative majority that has taken as its project a radical reshaping of the political system along corporatist lines. Such a project is innately political and is abetted by a cadre of deep-pocketed conservative litigants who pursue each and every appeal to the bitter end.

Furthermore, two of the members of the conservative majority haven’t even had the common courtesy to cover up their active collusion with the same conservative special interests. Justices Scalia’s and Thomas’s participation in Koch-sponsored gatherings of political donors — not to mention the fact that Thomas goes home at night to a high-ranking and outspoken member of the Tea Party movement — brings up appearance of bias and ethical standards issues that would require recusal or outright impeachment of lesser members of the federal bench under the canons of judicial ethics. Thanks to that pesky assumption of judicial independence, such canons do not apply to the Supreme Court.

As such, reports on court activity now bear the same breathless undertone of “the fix is in — let’s see what the fix looks like” as do reports from the rest of the Hill, and I have a lot more work to do.

WE REPEAT, CITIZENS UNITED: The fix seemed to be alive and well and living in Montana on Monday morning, with a summary reversal of that state’s supreme court ruling that a century-old ban on corporate campaign spending superseded Citizens United on the state level. This had been widely touted as a chance for the justices to “revisit” the Citizens United decision, and having had a visit, they didn’t even see the need to do any dusting. The verdict was completely expected; the Montana court’s argument hinged on the question of whether such expenditures gave rise to “corruption or the appearance of corruption,” in effect inviting the court to rule that they’d screwed up very badly and were very sorry. Not surprisingly, they somewhat-less-than-respectfully declined.

ARIZONA DESERTED: Things began to get interesting with the court’s gutting of Arizona’s SB 1070 immigration law, citing federal jurisdiction over immigration matters and rejecting the state’s interference therein, particularly the section of the law making illegal status a state criminal misdemeanor. This came as a particular shock to Justice Scalia, who delivered a largely evidence-free tirade of a dissent from the bench that boiled down to, “You brown people get off my lawn.”

WHY WE’RE DUMB, PART 4,328: The Arizona decision was also the occasion of one of the most far-reaching journalistic failures in recent memory, with press reports (up to and including those in the New York Times and the Guardian) characterizing it as a mixed verdict that left standing the “papers, please” requirement. Bolstered by these press reports, Arizona governor Jan Brewer (who is a loony), claimed “vindication” because the “heart of the law” was left intact.

This was, in essence, horseshit. Preoccupied as usual with their unceasing quest to keep score in an election year, the press immediately launched into an analysis of who this was good or bad for without seeming to notice that the court, far from upholding the provision, had merely declined to declare it unconstitutional due to lack of evidence because the law has yet to be implemented, while specifically reserving the right to do so later. To quote Justice Kennedy, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Many legal scholars expect the provision to be invalidated in a future decision, which will come as a complete shock to the mainstream media and — thanks to their lazy hackwork — the majority of the American people.

ROBERTS UPHOLDS HEALTH CARE IN SPITE OF ITSELF: The fix was expected to reappear in force with the decision on the constitutionality of the Affordable Care Act and its lynchpin, the individual mandate. Chief Justice John Roberts managed to shock all concerned (including his fellow court conservatives, whose dissent contains ample evidence that it was originally written as a majority opinion) by siding with court liberals in upholding its constitutionality. He did so despite the best efforts of the Obama administration in its arguments to blow it utterly by defending the mandate as an exercise of the Commerce Clause, for fear of the political ramifications of calling it a tax. Nonsense, said Roberts —  it’s a tax, and it stands.

The administration’s need to have Roberts save its bacon by calling a spade a spade highlights one of the major problems that the Act does have. In assembling the legislation, the Obama administration introduced (or, as some would have it, had to introduce) so many dilutions, delays, and concessions into the Act itself  — in the hope of heading off criticism from Republicans and conservative Democrats — as to turn it into an overly complicated and hard-to-defend shambles. This tendency to show up at congressional negotiations with nice presents for everyone and their concessions already made has marred the administration’s legislative efforts from day one, and it is greatly to be hoped that this particular close call is of the wake-up variety.

WHY WE’RE DUMB, PART 4,329: The early sections of Roberts’s opinion explicitly struck down the administration’s Commerce Clause argument, and apparently that was enough for CNN’s in-court producer, who rushed the news of the individual mandate’s defeat onto the CNN web page shortly after they were read aloud. This bout of scoop-o-mania resulted in CNN’s misreporting of one of the biggest news stories of the year. While they share this distinction with Fox News (who were seemingly so convinced of the inevitability of a defeat they had cheered for so long that they hadn’t bothered to prepare the proper chyrons in case they were wrong), this still leaves them the only journalistic organization (Fox News, journalism? Pull the other; it’s got bells on) to get it wrong, and blows to tiny pieces the image of objectivity they had been trying to use to contrast themselves against “partisan” competitors Fox and MSNBC.

This is in addition to a greater and more widespread journalistic failure where the Affordable Care Act is concerned. From the first, the mainstream media has treated health care reform as a political football, devoting huge quantities of column inches and air time to its effects on the political and electoral fortunes of the two parties, while spending as little time as possible reporting on the contents of the Act itself and its effects on the health care of Americans. One would assume that the real-life implications of a law that gives coverage to an estimated thirty million Americans and protects and improves coverage for scores of millions more might be, in the editorial judgment of the mainstream media, a newsworthy story. One would be wrong.

THIS WEEK IN VAGINA: Honestly, folks, I would dearly love to retire this section heading, but the constant flow of news concerning anti-woman legislative action — a seeming priority of elected Republicans at the local, state, and national levels — prevents me from doing so. This week comes word that the South Carolina House has failed to override Governor Nikki Haley’s veto of a bill that would have allowed state health agencies to provide information about the HPV vaccine to parents of the state’s sixth graders. When administered to children of that age, the vaccine has been shown to be highly effective in preventing the spread of human papillomavirus, a leading cause of cervical cancer in women. While bills requiring administration of the vaccine have been strongly objected to in other states as intrusive, the South Carolina bill had no such requirement and would have allowed health agencies merely to share information about the vaccine in the form of a leaflet and to offer free voluntary vaccinations as needed.

Even this was beyond the pale for Haley, who characterized the leaflets as the government “telling parents what to do.” Haley’s objections are more likely grounded in the misapprehension that HPV is an exclusively sexually transmitted disease (it isn’t) and that the vaccine is an anti-STD treatment (it isn’t). It’s a misapprehension widely shared by Haley’s Christian-conservative base, who have voiced the fear that protection against HPV might somehow give young women (both sexes are affected, but boys will be boys) license to engage in sexual activity outside of marriage — something that apparently must be prevented at all costs, including lives.

In short, what we have is the suppression of a medical breakthrough because a religious minority thinks that a painful, potentially fatal, and eminently preventable form of cancer is a link in God’s chastity belt. We also have one of the most callous and irresponsible political decisions in recent memory.

ANNOUNCING THE BONO AWARD: Back in the good old days before the Tea Party and the 2010 election, there was a news organization that used to make an annual list of the most mentally challenged members of Congress. While the post-2010 bar has to be set much higher — simply keeping track of this Congress’ House freshmen could be exhausting full-time work, never mind the constant bleatings of Virginia Foxx (R-NC) and Louis Gohmert (R-TX) — it’s a tradition I’d like to revive in the form of the Bono Award. I have so named it after the late Rep. Sonny Bono (R-CA), who set the gold standard for congressional idiocy by complaining that the legalese was really flying in the House Judiciary Committee, and in the hopes that the confused among you might wonder what I have against the humanitarian lead singer of U2. Nominations will be presented as needed — feel free to make suggestions in comments — and the award for the year’s least astute elected representative will be given at the end of the year.

Our first nominee: Sen. Rand Paul (R-KY), who responded to the Supreme Court health care decision on Thursday by saying, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.” A cursory examination of Article III, Section 2 of the document in question shows Senator Paul to be completely full of shit. As a friend of mine pointed out, given the composition of the court majority in this case, he also seems to have some difficulty counting to five. Another point in the senator’s favor for this award: He is, politically speaking, kind of a scumbag.

Good luck to you, Senator.

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E.C. Fish is the editor and publisher of The Spleen.

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