Jan 29, 2010

Stop Whining About Stare Decisis

Stare decisis. Most people have no idea what that phrase means. People who do tend to care a lot about it. It's the rule of precedent in law; the common-law notion that that which has been decided before should determine--or at least influence--decisions that follow.

Nowadays, when people talk about stare decisis, unless they are at a legal convention, they almost always mean 'abortion' and Roe v. Wade. "Will you uphold stare decisis?" asks a senator. "Yes," responds the potential justice. Translated: "Will you vote to uphold Roe v. Wade?" "Maybe."

Politico has an article about certain Senate Democrats being p.o.'ed about Justice Roberts and Alito, saying that they 'misrepresented themselves' in their confirmation hearings. First off, that's BS. They were very honest. Cagey, but honest. Roberts said that Roe would have the practice of stare decisis applied to it. Alito said something similar. What neither mentioned--though both undoubtedly believe--is that according to the principle, decisions made that were incorrect (e.g. Plessy v. Ferguson) should be overturned (e.g. Brown v. Board of Education).

Frankly, every decision rendered by the Supreme Court either ignores or alters some precedent. If you ever read opposing briefs from opposing sides in a case, you'll find that both use old Supreme Court cases to support their own arguments. The justices then determine which precedents do (or should) apply and which don't. Sometimes, precedents are obvious (abortion: Roe v. Wade, Planned Parenthood v. Casey, Gonzales v. Carhart; segregation: Plessy v. Ferguson, Brown v. Board of Education), so when they are ignored or altered, it is quite noticeable. Sometimes, they are somewhat ambiguous.

So, basically, what I'm saying is that stare decisis doesn't mean everything stays the same, and arguing that justices 'misrepresented themselves' by saying they would 'follow precedent' is as dumb as calling someone a 'strict constructionist'. Alito and Roberts are simply doing what they were appointed to do: determining which precedent is in line with the Constitution and which is not. The fact that Dick Durbin doesn't like it doesn't make them liars.

P.S. It is really, really dumb to define 'judicial activism' as 'when a court overturns a past ruling.' Criticisms of judicial activism have never been about overturning precedent. They have always been about the Supreme Court taking upon itself prerogatives that are granted to the executive and the legislative branches ("legislating from the bench"). It's a fuzzy line, admittedly. The Court always sets standards on how a law should be interpreted. Those standards could be, broadly, considered 'legislating', since Congress didn't tell them what to do. The more obvious cases, however, are items like Griswold v. Connecticut, where the Supremes decided that the State cannot legally keep people from using birth control, since there is a right to privacy. The fact that a right to privacy (beyond illegal searches and seizures) is not directly mentioned in the Constitution angers some people, making them feel the Court has overstepped its bounds. That leads to a vague term--'activism'--which, if anything, is certainly not to be construed as 'overturning precedent.' Let's all just deal with the fact that the term is not quantifiable and is different depending on who's talking.

Jan 27, 2010

SOTU, and stuff

So, the State of the Union is over. Let me reiterate my longstanding objection to minority party responses. I hate them in general, and I, personally, really disliked how Bob McDonnell did his from the Virginia House of Delegates--as if it were a mini-State of the Union and McDonnell were 'President Lite'. McDonnell's speech was pretty good, but, again, I didn't approve of the setting or its very existence.

I kind of half-listened to the SOTU, reading along on the internet and looking at other, more important things (like, should I try to go to an animation school...). I was going to do the 'every time he blames Bush' drinking game--to my mother's chagrin--but after five minutes and no Bush-bashing, I was thirsty and downed my booze.

Best part of the speech? The networks are talking about it: when Obama bashed the Supremes for the Citizens United decision, Justice Alito--breaking longtime tradition--shook his head and mouthed "Not true". Now, while some are up in arms (most because they simply dislike Alito--I'm sure if Justice Souter had done the same thing if President Bush had slammed the Boumediene decision, you would hear it from the right), I actually enjoyed it. Yes, I admit that I like Alito. I also think that it's appropriate for the Supremes to remain apolitical. However, when the President, with the Supreme Court sitting twenty feet away, announces that they are playing politics with their decisions, the justices have every right to shake their heads and disagree. They make their decisions--politically motivated insomuch as each justice has a judicial philosophy that aligns most of the time with a certain party--based on law. To be accused in such a public setting, with them right there, of being wrong, is a direct assault. Yeah, Alito had every right to show his displeasure with the President.


P.S. I'm watching Fox News...Karl Rove always sounds like he's got something stuck up his nose...
P.P.S. I hadn't though about this, but Drudge is pointing out that after saying his stuff about the Court, Dems stood up and cheered; is that political intimidation of the judiciary? Seems kind of like it. I don't expect four of the five in the majority to be cowtowed, though. Kennedy--who knows? He's a big fan of the NY Times liking him.
P.P.P.S. Justices Thomas and Scalia were notably missing. Scalia has missed before, I believe, because he hates going. He doesn't like the presence of the Court at such a political event. Thomas usually shows up. Don't know why he wasn't there.
P.P.P.P.S. Video!

P.P.P.P.P.S. Obama was wrong, as a matter of law. Justice Alito was simply defending the United States Code from its own executive (courtesy of National Review Online):

President Wrong on Citizens United Case [Bradley A. Smith]

Tonight the president engaged in demogoguery of the worst kind, when he claimed that last week's Supreme Court decision in Citizens United v. FEC, "open[ed] the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

The president's statement is false.

The Court held that 2 U.S.C. Section 441a, which prohibits all corporate political spending, is unconstitutional. Foreign nationals, specifically defined to include foreign corporations, are prohibiting from making "a contribution or donation of money or ather thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election" under 2 U.S.C. Section 441e, which was not at issue in the case. Foreign corporations are also prohibited, under 2 U.S.C. 441e, from making any contribution or donation to any committee of any political party, and they prohibited from making any "expenditure, independent expenditure, or disbursement for an electioneering communication... ."

This is either blithering ignorance of the law, or demogoguery of the worst kind.

Jan 20, 2010

Daniel Gross Cries Like A Baby

Daniel Gross, noted history major who claims to be an economist, has joined the chorus of Democrats trying to wrap their heads around Scott Brown's election. As per usual, Gross then resorts to partisan snipes without regard to empirical evidence.

Republicans are soooo inconsistent, he says, because they (a) want to lower the deficit, (b) want to lower taxes, and (c) don't support Obamacare and didn't support the stimulus. Now, he does note the obvious Republican political ploy going on: pointing out Obamacare's $500 billion in Medicare cuts. But who can blame them? Democrats got a political plus for pointing out over and over again how Republicans were spendthrifts when they were in power; but then Democrats spent even more than Republicans in their first year controlling the legislature and the presidency. Politics is politics, and Democrats have a weakness that Republicans are gleefully noting.

The rest of his argument is crap, though.

(b) may seem to fly in (a)'s face. It's true; income tax cuts result in short-term budget drops. However, the point economic libertarians continue to make is that by having more of their own money to invest, people will cause the economy to grow in the long term, resulting in higher tax revenues down the line. It also is more just in general, since people have a right to the fruits of their own labor. Gross (intentionally?) fails to mention the other prong to deficit reduction: spending cuts. It's true that they won't do it by themselves (discretionary spending this year is expected to be $1.368 trillion, while the deficit is estimated at $1.17 trillion); you can't cut all discretionary spending. That's not to say you can't cut any or a lot. Anyway, to act like raising taxes is the only way to cut the deficit is just wrong.

(c) is completely idiotic on Gross's part. The stimulus was a political boondoggle. Sure, a fiscal stimulus may have been necessary (though over 200 economists sent a letter to President Obama saying it wasn't). However, the way it was crafted meant that not even a third of the funds have been distributed yet--almost a year after its inception. That's not so much a flash-in-the-pan as a long-term discretionary spending spree. There's no actual way health care costs will go down with the bill that's been proposed--only a budget gimmick (counting the bill's 'first decade costs' as the first five years--when no services will be rendered--and the next five, as opposed to the first ten years after services begin)--makes it look almost neutral.

But, that's enough for tonight. I can only say that when Daniel Gross starts to whine through his column, things must be right in the world.

Jan 17, 2010

Donald Duck, Chip, 'n' Dale

I recently rediscovered some of my favorite old cartoons, starring Chip 'n' Dale, the little chipmunk rascals, making life miserable for our good friend Donald Duck. I had remembered one about peanuts, one about Christmas, one about a house, and one about a model boat. My parents thought I was making things up; well, I've found each of them and post them now for your enjoyment:

Working for Peanuts



Toy Tinkers



Out of Scale



Chips Ahoy


Jan 12, 2010

Daniel Gross Makes Me Mad...Again

I've never been particularly kind to Daniel Gross at Slate/Newsweek on this blog. Mostly, it's because he's a history guy who spends his columns writing on business and economics through an unabashedly partisan lens. That, of course, makes his work less-than-trustworthy. I, too, come at things with partisan blinders, but I don't pretend otherwise.

So it's no surprise that I take issue, once again, with one of his columns. This time, it's not just that he's wrong (as with the average propensity to consume/marginal propensity to consume thing). It's that he's dishonest with his argument. I'll give him the benefit of the doubt and say that the dishonesty was not malicious or intentional. Instead, I'll just presume that his liberal sunglasses are just too dark for him to understand others' points.

Those who are bearish on the dollar right now have a simple argument: the massive federal deficit, which will only get larger, will lead to inflation, since to meet its debt obligations the United States will have to devalue the dollar. (Why? Since that makes our debt easier to pay. If, for example, we owe country A $100 in today's nominal terms, then by allowing the dollar to weaken, $100 will be worth less and therefore easier to pay next year due to inflation.) This devaluing of the dollar will cause international markets to lose faith in America's propensity to repay its debts for the real cost of them (instead of the devalued cost), which will lead them to favor more stable currencies. That's it. That's the argument.

Daniel Gross ignores the most important part of the above paragraph: the verb "will lead". Few are arguing that the dollar is excessively weak right now. In fact, though the dollar declined throughout early 2008 as the recession really set in (makes sense; in a recession, people don't want to borrow the recessionary country's currency), the moment it became a worldwide recession, international investors flocked to dollar, which, for all its own issues, remains the go-to currency in times of trouble. Everyone agrees with that. However, times have changed, and the world is changing. The dollar's decline may be nigh. Why?

  1. The dollar no longer has the dominant world share that it once did.
  2. The dollar has competition, partly based on the U.S.'s geopolitical competition. China is a rising power which depends on its trillions of reserve dollars. It wants the hegemony of the U.S. to be weakened (and its own fortunes to be less dependant on America's), so is pushing for a worldwide reserve currency. OPEC countries are doing the same.
  3. Deficit spending leads to devaluation.
  4. Investors don't like dollar devaluation because of the inflation that accompanies it.

Gross acts as though because the dollar hasn't already collapsed, all these people are wrong. But their argument isn't that it has collapsed, but that by government spending continuing apace, it will. He doesn't even address that, more salient nuance but simply pretends it doesn't exist, making him look the fool.

Oh, yeah. Then he blames it all on George Bush. So, half the article is about how people arguing for the likelihood of a future event are wrong because that event hasn't happened yet. The other half is about how it's George Bush's fault and that Obama's role increasing the deficit can't be blamed on him ($787 non-stimulating stimulus, anyone?). Not that George Bush has no culpability here (he certainly does), but maybe Mr. Gross could take two seconds to realize that the effects of deficits are very real and don't change depending on who's living at 1600 Pennsylvania Ave.

Jan 10, 2010

I Don't Know What To Think About This

A recent, and interesting, development in the legal world is the conversion (?--I don't know what he believed in the first place) of Ted Olson, former Bush 43 solicitor general and conservative legal scholar par excellence, to the pro-gay marriage camp. He details his thoughts on the constitutionality of same-sex marriage, based on the 14th Amendment's guarantees to "the equal protection of the laws" and "due process of law."

Now, I have to say that I honestly don't know what I think about civil same-sex marriage. From a religious point of view, I don't believe homosexual acts to be morally right. But something being morally wrong or distasteful doesn't necessarily mean that it is or should be legally unacceptable (see, e.g., hate speech protected by the First Amendment). However, I find Mr. Olson's reasoning to be lacking.

His argument, which is the one usually heard, is that allowing heterosexual marriage but not homosexual marriage means that we are treating homosexuals unequally. That simply depends on how you view it; society has granted the right of a man to marry a woman and a woman to marry a man. A homosexual man can marry a woman, just as a heterosexual man can. They are treated the exact same. Now, the fact that the gay man doesn't want to marry a woman doesn't change the fact that they are treated equally under the law. Of course, if you view it through the prism of "a man loves a woman, he can marry her so a man loves a man, he should be able to marry him," then you'll disagree with my reasoning. That would make 'homosexuals' a new protected class, which is something those who appreciate individual rights eschew. I guess it depends on what the courts feel. My point, though, is that the 'equal protection' argument is not so cut-and-dry as Olson suggests.

Now, he is correct that most conservative reasoning against gay marriage is bad. It'll hurt heterosexual marriage? Please. No procreation?? Tons of people get married and never intend to have children. "Tradition"? Traditions have changed throughout history and continue to do so. It's legitimate to argue that this one shouldn't, but then, the obvious question is "why?" which leads us back to the other, less-than-convincing reasonings.

He is wrong on some of his arguments, too--that 'science' has told us gay people are naturally, instead of 'nurturally' homosexual, and therefore it should be societally accepted (children of alcoholics are predisposed to alcoholism, but that doesn't excuse any DUI's they get, so natural proclivity to a behavior does not result in appropriateness of legality) or that supporting loving relationships of any kind should be celebrated as an 'American value' (would Mr. Olson believe that polyamory should be legally recognized? Likely not, though his argument taken to its logical conclusion would say so).

My biggest concern, however, is timing. Something that litigators constantly seem to forget is the democratic process. You see, it's the people who should determine the meaning of the Constitution. That is exactly how the Eighth Amendment--against "cruel and unusual punishment"--is interpreted. What is cruel or unusual depends on what society believes is cruel and unusual. Similarly, the definition of marriage--and whether 'equality' applies--should be determined by the people. 39 states have now determined, through the referendum process, that marriage is a union between a man and a woman. To treat that determination as akin to southern racists making interracial marriage illegal as Mr. Olson does is rather over-the-top. Even if he's right and history is on his side, perhaps he should wait until the people are more accepting, as they were when the Supreme Court disallowed bans on interracial marriage (yes, yes, many southerners were up-in-arms, but the public tide was obviously against them). Not that that would make same-sex marriage any more or less constitutional, but it would certainly tone down the culture wars, which have largely been caused by the Supreme Court's creation of social policy (anyone who thinks Roe v. Wade solved anything is crazy; it only created our society's abortion obsession, largely because the Court's ruling so offended the mainstream of America).

I think that Mr. Olson's argument is flawed. Not fatally, but certainly to a point that he should address. This issue is not as simple and obvious as he acts. Beyond that, even if he wins, the timing and venue are poor. If he wants to say that the gay couples he knows are fine, upstanding citizens, then his battleground isn't the federal court system but the streets of America, to convince his fellow citizens. The Courts are a cheap and divisive place to do battle. Were the Supreme Court to determine that same-sex marriage is a constitutional right--without even a pretense that it's what the founders or the writers of the 14th Amendment meant--it would simply engender more distrust in government, anger at the subjugation of the democratic process, and resentment that the Supreme Court would have the audacity to spit in the eye of the public's clear wishes. That's not how the institution (or the Constitution) should work.

UPDATE: Obviously, I'm not the only one saying things about this. Apparently, the gay community is not particularly excited about the efforts Mr. Olson and Mr. Boies are making, since they feel it will do more harm than good to the gay rights movement to push it through the courts like this. See the Slate article on that here (also, be aware that the article was written before the Supreme Court ordered that the hearings not be broadcast, so there will be no YouTube presence).

UPDATE II: Ted Olson's opening statement, as prepared.