The overrated cult of Ruth Bader Ginsburg: #hypocrisy?

First, Justice Ginsburg is just a liberal, not a left-liberal, and even that is in terms of Overton Window framing.

Second, upon the death of Antonin Scalia and the faux mourning in which I refused to engage, everybody Inside the Beltway, and outside worshipers at the Cult of Ruth, talked about the sweet friendship of them going to the opera.

Really? If "Lulu" were ever in DC, would she have invited him to that? Not to mention the opera about the life of Harvey Milk. I kind of doubt it. There's a whole list of LGBT-related musicals that I guess would have been off limits. No "Cabaret," "Victor/Victoria" and others.

Put another way, if Nino had lived 450 years ago, he might have been Pope Pius IV, ordering Michelangelo's nudes to be painted over. If he had invited a fellow time-warped Ginsburg to see the adulterated paintings, would she have gone along?

Per a Facebook discussion, a Clintonista said, maybe this is why our parents told us not to mix politics or religion into social settings. That may be true, but nobody put a gun to Ginsburg's head and told her she had to go to the opera with a bigot. (And besides Lulu's lesbian, the go-to choice for me, I can probably pick other operas that would offend Nino's proprieties, were he honest about applying them to the arts.) Beyond that? Yes, shut up and be quiet was "Leave It to Beaver" era. I may, in red-state ruraldom, not zip open my mouth at the office too much, but I don't have to go beyond a "necessary" level of extra-office socializing with others with whom I have very little in common on major issues.

But Ginsburg didn't have to live a compartmentalized life like that at all. She made a free choice.

All the "touting" of Ginsburg means is that she chose to enjoy artistic events with a rank bigot. Hardly a matter for praise, unless she's trying to rack up kudos for a mitzvah.

Three years later, The Nation does its own callout. Speaking of Scalia, the piece notes she did a cave to him on part of Bush v Gore.

She has called San Francisco 49er quarterback Colin Kaepernick's refusal to stand for the National Anthem "dumb and disrespectful."

Of the athletes, Ginsburg said, "if they want to be stupid, there's no law that should be preventive. If they want to be arrogant, there's no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that."

I'd actually call her take on the issue, as well as on flag burning — which Hillary Clinton wanted to selectively criminalize even after the SCOTUS said it was constitutional — "dumb and disrespectful." Disrespectful to Black Lives Matter. Disrespectful to the spirit of the First Amendment while giving lip service to its letter. Disrespectful to a minority when a member of an oft-oppressed minority herself. (If another Jew failed to stand for the National Anthem after we refused to, say, bomb the rail lines to Auschwitz in late 1944, or after we turned away the MS St. Louis in 1939, would she have called that "dumb and disrespectful"?

UPDATE, Oct. 13, 2021: Katie Couric, in her new memo, says she edited out even worse shit that Ginsburg said in that interview in 2016.

And, worse yet? She suspected Ginsburg didn't understand the question. She asked the Notorious Bobo Whisperer, David Brooks, and he agreed!

If they were right, they agreed to protect a senile Justice, and in an election year no less. 

For the record, here's what's edited out:

In new memoir, Going There, Couric writes that she edited out a part where Ginsburg said that those who kneel during the national anthem are showing 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'

Wow.

In reality, I HIGHLY doubt Ginsburg was senile or close to it.  Instead, Katie and the Bobo had to protect the St. Notorious of Scaliaburg from herself.

Update, Feb. 15, 2019: Her new biographer calls her a "centrist" within liberal federal judges of the last generation. Calls her that more than once. And I agree.

Ruth Bader Ginsburg: A Life by Jane Sherron De Hart
My rating: 5 of 5 stars

An excellent look at Ginsburg's professional, from her early New York City formative experiences, through college and struggling against women's quotas and stereotypes which first set her on the career of women's advocacy, to her work with the ACLU while a Rutgers professor, then moving to Columbia, and finally, nominated to the DC Circuit, then many years later to the Supreme Court.

De Hart personalizes Ginsburg the person, not just the judge and justice. She does explain more about her interesting relationship with Antonin Scalia, and how it included not just opera, but some mutual love for at least part of the work of judicial argumentation. (I still find the degree of investment in the friendship interesting.)

De Hart is also honest about Ginsburg moving to the center during her time on the D.C. Circuit. In fact, she uses the word "centrist" regularly.

She also does a good job of analyzing Ginsburg's work on many pivotal Supreme Court cases, as well as her take on Roe and other cases of women's rights and reproductive freedoms before she joined the court.

In this, I agree with Ginsburg's critics. It is true that Roe, and Griswold before it, did not have the tightest of argumentation. It's also true that an equity argument in addition to a privacy argument would have been great in Roe. But, it just wasn't "available" on legal precedent or close to it at that time. And, of course, Griswold was not about male-female equity but just privacy.

I also will agree with a few critics that this is relatively little about her personal life, definitely relatively little about her adult personal life. But, Ginsburg chose what she wanted to discuss in interviews.

Update, Oct. 3, 2023: Part of James Bamford's early writings against the NSA offer further reason to loathe Ginsburg with her appellate court support for snooping. Read also his latest book, SpyFail.


View all my reviews

Nino Scalia is dead: Please, no unseemly faux mourning

Note: That header applies to Bernie Sanders, too — see below.

For those not living in the US political subdivision of Planet Earth, Supreme Court Associate Justice Antonin Scalia, as of earlier today, is dead.

My thoughts?

First, Scalia, with the possible exception of his junior clone, Samuel Alito, was probably the meanest judge on the Supreme Court.

Second, don't try to lighten up his personal life by saying, "But he went to the opera with Ginsburg." For everybody spouting that, Doug Henwood's got your number.

Another reason to question the RBG cult. https://t.co/dgOB4eYGq3

— Doug Henwood (@DougHenwood) February 14, 2016

And, beyond that? Herman Göhring was an art lover.

Vox writes up her "moving tribute" to Scalia.

Scalia hated gays and lesbians, period. He pushed hardest the line of "civic religion" on many occasions on about any church-state separation issue, and it often wasn't just "civic religion" but explicit endorsement of Christianity on the state dime, as well as supporting public, corporate school prayers, per the Santa Fe ISD case. As a secularist with a number of gay and lesbian friends, I have reason to loathe and despise him, with no faux mourning needed nor desired. If I didn't cut Chris Hitchens slack on his death, Nino's sure not getting it.

And, as a secularist who feels confident there is no heaven, nor hell, and that an eye for an eye doesn't work in this life, I also have no reason to mourn his demise. He lived a full life, at or beyond his life expectancy. He wasn't black, hispanic or female, so had little discrimination against him. He wasn't physically or mentally disabled.

So, no, there's no need to mourn him. The Onion gets it right in a politer, humorous way.

So, on to speculating about his replacement.

As for this:

The Democrat-controlled Senate confirmed Ronald Reagan's nominee to the Court, Anthony Kennedy, in his last year in office: 1988.

— Glenn Greenwald (@ggreenwald) February 13, 2016

I don't know if that's simple aspirational musings by GG, or ahistorical lack of grounding.

Those were Democrats, and that's not the first or last time they've engaged in kowtowing. The GOP Senate of today may well dig in on an Obama nominee less to the left than Kennedy was to the right.

A counterexample for Greenwald?

Back in 1968, even before he ethically self-imploded, the Dixiecrat/GOP working majority in the Senate was doing all it could to obstruct the appointment of LBJ's "payoff" appointee, Abe Fortas. (I've blogged before that LBJ was an idiot in this sense. Fortas was already an associate justice, the GOP and Dixiecrats both were leery of him, knowing his "Landslide Lyndon" lawyering past, and knew that LBJ was a semi-lame duck. I noted that LBJ had a better option: Thurgood Marshall. Dixiecrats would oppose him, but northern GOP Senators couldn't take that risk, especially those up for re-election in 1968, and it would have made for good alternative history, too.) That said, Fortas' nomination didn't happen until June 1968.

And Chuck Grassley, chair of Senate Judiciary, has already said, in his opinion, no nomination now. He's obviously not alone. And that's why Democrats aren't Republicans.

As for who the replacement might be? Cass Sunsein reportedly is already making sniffing noises.

And Jeff Toobin already had a "Democratic farm system" piece. About all on there had at least one of three strikes against them, if not two — appellate court judges, Ivy Leaguers, Obama Administration past or present staffers.

Given that all nine of the current justices have the first two issues, appointing another of similar ilk smacks of establishmentarianism. We'll get someone who will be reliably liberal on the two hot-button issues of abortion and gay rights and that's it. We could well get a tech-neoliberal who's deferential to the Deep State (like Kagan), a squish at times on the free speech portion of the First (like Sotomayor), deferential to unduly broad interpretations of unduly broad tech laws like the DMCA (Breyer and somewhat Ginsburg).

That said, if the wingnuts stall the game out, a President Clinton would nominate similar. A President Sanders would get a chance to live up to his Citizens United pledge.

And, the wingnuts are out in force at the GOP debate. John Dickerson caught Ted Cruz lying about Tony Kennedy's appointment, but didn't push it. If Kennedy was actually nominated in 1987, that's Jesuitical hair-splitting. Besides, it's Reagan's fault for nominating Bork first, then Bork's fault for not pulling his name from consideration, then the national fault of being afraid of a pot-smoking history of Douglas Ginsberg.

As for what happens with cases now in the pipeline, SCOTUSblog answers that.

Meanwhile, back to the faux mourning, or calls not to do it.

Sadly, and maybe because he's gotten his hands slapped by the establishment over his incarceration ideas at Thursday's Dem debate, Bernie Sanders has also jumped the shark in calling Scalia "brilliant" as part of his civic mourning.

Oh, Scalia was very, very smart compared to the average American. But, brilliant as a Supreme Court justice? No.

And, Sanders isn't alone.  Some liberals, or 'liberals," will point to him being at an ACLU dinner. But, that was with ACLU president Nadine Strossen, who along with Executive Director Anthony Romero, first tried to gag board members then purge them.

He showed his "originalism" to be nothing but JellO on recess appointments, on a host of other issues, and above all, on Bush v Gore.

Yes, he did vote to restrict executive powers somewhat in Hamdan. But even that was spoiled by his earlier opposing giving Gitmo detainees access to federal courts. And, contra some allegedly liberal lawyer on Facebook, his concerns about jury trials didn't extend to right to competent legal counsel, death penalty appeals or other things related to the death penalty — in Atkins, he supported executing the mentally handicapped, and he said racial profiling by officers of the law passed constitutional muster.

He also tried to roll back Miranda whenever possible.

The Morning News is trying to portray him as a great civil libertarian on criminal law. He was OK at times. Great? No. See all of the above. Criminals just got lucky in some cases because Scalia's civil libertarianism extended into criminal law. (Except for states that had still criminalized sodomy.)

Beyond that, this plays into Democrats-right-or-wrong whipping out the "But the SCOTUS" arguments against third-party voters like me. Jacobin has their number.

TX Progressives talk elections, Constitution, health, more

The Texas Progressive Alliance knows that no one has a constitutional right to be a County Clerk, and that Christian scriptures say their resistance is wrong, as it brings you this week's roundup.

Off the Kuff takes a look at the very high stakes of the voter ID appeal.

Libby Shaw at Texas Kaos and contributing to Daily Kos asks why the U.S. cannot have high speed rail that is common in Europe and Asia?  Why? The do-nothing GOP, of course.  Republican Are Why We Can't Have Nice Things.

Socratic Gadfly, linking to the first piece he has written for an in-depth philosophy and social sciences webzine, explores the parallels between Constitutional originalism and religious fundamentalism.

The best debate in the Houston mayoral contest happened last Thursday night, and PDiddie at Brains and Eggs blogged about it.

Texas Leftist agrees with President Obama... the economic future of the United States may soon be inextricably linked to the world's next great power player. Here's why it's time for Texas to take a new look at Africa. Plus some coverage as the Houston Unites Campaign kicks into high gear.

From WCNews at Eye on Williamson. The Texas GOP has a problem with health care.  They hate it and it shows, Common Sense Conservatism Is Bad For Your Health.

Neil at All People Have Value was glad to see outreach by the Harris County Green Party on Labor Day. APHV is part of NeilAquino.com.

==================

And here are some posts of interest from other Texas blogs.

Juanita unloads on Houston Mayoral candidate Ben Hall.

Grits for Breakfast calls out Dan Patrick for misleading and incendiary rhetoric about crime and the police.

The TSTA Blog rebuts a Wall Street Journal op-ed on the recent SCOTUS charter school ruling.

Liz Goulding looks back on three years of being a one-car household.

The Bloggess celebrated World Suicide Prevention Day.

Fascist Dyke Motors has a Jeopardy moment.

Antonin Scalia — fundamentalist

The Supreme Court associate justice, well-known for his forceful (if often vague and sometimes changing) exposition of a doctrine of Constitutional law jurisprudence known as "originalism," would surely reject the charge of being a fundamentalist.

But, in my first essay at the new philosophy-related webzine, The Electric Agora, I argue that this is indeed the case. I argue that there are definite parallels with religious fundamentalism, especially in its Christian fundamentalist stripe, and that Scalia's line of thinking, rather than being new, arguably goes back to Chief Justice Roger Taney of Dred Scott fame.

I also argue, following on my review of his most recent book, that pop historians of a certain stripe, like Joseph Ellis, perpetuate the fundamentalist type textual reification of the Constitution, and the reification of the thought and intent of the founders, as expostulated by the likes of Scalia, Samuel Alito and others. On the Christian fundamentalism side, my inspiration in part comes from the selectivity of the fundamentalism of anti-Constitutional Rowan County Clerk Kim Davis and her backers, or eggers-on.

Anyway, if you're looking for more in-depth writing on the intersection of philosophy with the social sciences and the arts, head to The Electric Agora.

#SCOTUS says #Confederate flag not free speech; #hypocrisy alert?

More specifically, the Supreme Court has said the state of Texas can ban the Sons of Confederate Veterans from being part of the state's vanity license plate program because of its use of the Confederate flag.

This is a tough issue, but I generally disagree with Gov. Greg Abbott, who led the push for the ban. The Sons of Confederate Veterans has had local chapters that have been squirrely, but, how else do you put the SCV on vanity plates without the Confederate flag?

Here's the backstory:

In 2010, the Texas Department of Motor Vehicles Board denied a request from the Sons of Confederate Veterans' Texas Division that the state issue a license plate featuring the group's name and a picture of the Confederate flag. The board said it denied the application in part because "a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups."

This, of course, gets into issues of hate speech vs. actual hate crimes, and many other things. 

The easy answer is to get rid of vanity plate programs in general. Here in Tex-ass, that would have the advantage of killing off another privatization contract, for starters. (Here's the details of the current contract.)

And, if a pattern of hateful speech eventually becomes part of criminal activity, as with Charleston shooter Dylann (sic) Roof reportedly  displaying a Confederate flag license plate, you then prosecute for a hate crime.

Otherwise, this is just like Adopt-a-Spot programs that have highway road signs. States, when someone like a Ku Klux Klan local has become an Adopt-a-Spot volunteer, have simply killed the public signage for the program.

It's interesting that Clarence Thomas was part of the majority. Given that he's been more philosophically consistent on the Court than Nino Scalia, and has opposed many affirmative action programs, it's interesting indeed. The Atlantic has more on his flip-flop, which does stem from his Southern background. Now I'm back to questioning his intelligence, if he can see no link between Southern white intimidation of blacks and the need for some type of affirmative action. There's good in-depth analysis here of Thomas in particular and the majority in general.

And, isn't that, my "get rid of vanity plate programs in general," reminiscent about what John Roberts has said about affirmative action?

"There is no honor among Supreme Court justices."

And, the ACLU and Americans United for Separation of Church and State, among others, agree this is censorship.

#SCOTUS on #gaymarriage as teh stupidz burns in the #txlege

First, per SCOTUSBlog, and a hat tip to Perry, I think that a 6-3 decision in favor is possible. Likely? Not as likely as a 5-4 maybe, but more likely than a 5-4 against.

A "tell," on the current reporting, is Justice Kennedy's higher emotional level when asking questions of the plaintiffs (the states where an appellate court said gay marriage should remain illegal) about whether this wasn't disruptive to gay couples with children and other things. (At the same time, this is why Kennedy tilts pro-life, yet I think would oppose any attempt at an outright ban of abortion.)

Otherwise, I think Kennedy, in raising the past history of marriage, was trying to encourage the defendants, gay marriage supporters, to address that issue as part of their narrative. His later questioning showed that what he has elsewhere mentioned as the "dignity" and "sacredness" of marriage is a key issue to him, not the argument for biological procreation.

Meanwhile, in additional current reporting, Nino Scalia must be slipping. In his interrogations today, he never once compared gay marriage to bestiality. Justice Alito at least partially picked up for him by raising polygamy as a red herring.

(Actually, as long as the person already in a marriage informs a potential second or third spouse about said other marriage, I'm OK with that. Make it felony fraud not to do so, and we go from there. Besides, Religious Right, let's not forget that the "Judeo" fig leaf half of your "Judeo-Christian values" was so "down" with polygamy that Jesus' ancestor Jacob married multiple wives, as well as having additional kids by legally recognized concubines. Beyond that, the Judeo was so down with other open marriage ideas that Abraham married his half sister. Good times!)

Roberts, per both those top links above, could indeed "swing," so to speak. Per Perry, he fought against anti-gay discrimination in the workforce and won, on the major Romer case. Per the arguments now, Roberts at a minimum seems to give the Constitution's comity clause — that states should respect each others' laws — a fair amount of weight. If Texas is forced to recognize gay marriages from Illinois, then it's essentially game over anyway.

And, speaking of Texas, our lord high executioners in the Legislature are already seeking to craft various workarounds, at the state level, should the Supremes legalize gay marriage.

Of course, the justices' ruling isn't expected until after the Lege's session ends.

So?

If wingnuts led by Rick Perry called an anti-abortion special session in 2013, you bet wingnuts led by Greg Abbott will consider the same this year. Bank on it. And lawsuits against the feds and more.

After all, Gov. Strangeabbott, despite his alleged fiscal conservative credentials, is our state's chief money waster.

Why did Ford pardon Nixon?

I reject ideas of any conspiracy between Jerry Ford and Dick Nixon in the last few days before Nixon's resignation, that Ford would someday pardon him as part of the step-down.

That said, I don't buy Ford's narrative about "national healing," and while accepting Jerry terHorst's line that "national healing" was bullshit when Ford wouldn't pardon Vietnam draft avoiders at the same time, I think that there's still a backstory that ter Hoorst may not have thought about.

It related to a new biography of Nino Scalia, who headed the Ford Administration Office of Legal Counsel. Specifically, it relates to his attempt to hide Nixon's presidential papers from outside purview.

Suppose there is no pardon, and Nixon goes on trial. And, some presidential papers — or White House tapes — somehow come out at trial. Or even without electromagnetic or paper trails available, it still comes out at trial.

What if we find out that Ford, pre-vice presidential nomination, had discussions with Nixon plotting House GOP strategy to spin Watergate? What if, as part of that, we find out that Ford knew more, pre-vice presidency, about Watergate than he told the public — or than he told Congress in his confirmation hearings?

And, what if this comes out before the 1976 general election?

So, without any "deal" with Nixon, Jerry Ford may still have had some "good" reasons to pardon Nixon.

We may never know. I half-read, half-skimmed — and generally disliked — John Dean's new book on the "complete" Nixon tapes. But, again, they don't cover every waking moment of Nixon's presidential life. And, Dean's book ends with July 16, 1973, other than a "summary" chapter beyond that. That's three months before Spiro Agnew resigned.

The sneaky hand of The Umpire may lie behind SCOTUS ruling on #carbon

On the surface, it seems like the Environmental Protection Agency got, if not everything it wanted on the right to regulate greenhouse gas emissions from power plants, then 83 percent of a loaf, as Justice Antonin Scalia declared on reading his decision, as I blogged about earlier this week.

But, upon further reading of his decision, I say: "Maybe not."

That's because, per the Texas Tribune, it's seemingly a kind of illogical win. The three conservatives who opposed the EPA's "tailoring" of emissions levels for greenhouse gases, nonetheless stood by it having the authority to regulate GHGs even though GHGs aren't specifically mentioned in the Clean Air Act, just unenumerated future pollutants.  If Congress is assumed, by the three "swing conservatives," to have given the EPA the authority to figure out what seeming pollutants, per post-1970s analysis, need regulation, then surely Congress gave EPA the same authority to set the standards for what counts as pollutants or not.

Even though Scalia read the decision, at heart, I'm seeing the sneaky hand of The Umpire, aka Chief Justice John Roberts, the same sneaky hand that was behind his switch on Obamacare, a switch done with the side benefit of killing off forcible Medicaid expansion, forcing the Obamacare non-user tax to be called a tax and not a few, and killing dead a highly expansive reading of the Commerce Clause.

One should never, ever, underestimate why The Umpire switches away from his seemingly "normal" side.

What would Roberts, et al, gain here?

First, putting in a box certain expansive readings of the Clean Air Act. Now, any other "future pollutant" the EPA deems worthy of regulation will have to be (on paper) regulated at the same standards as the original pollutants who had pollution levels specifically spelled out by Congress. This would be a smaller-scale version of his Commerce Clause tack on Obamacare.

Second, per the Trib piece, the EPA simply can't regulate every facility it seemingly now needs to regulate for GHGs. Instead, and in order to avoid suits, or at least avoid losing them, it may go to a cost-benefit analysis. And conservatives smile whenever a federal regulation can be forced into a cost-benefit analysis straitjacket.

I'm probably just scratching the surface of some 11-dimensional chess The Umpire is playing. I suspect that what happened is that Kennedy wanted to switch first. Roberts realized there was no way of stopping him, and wanted to go along, but with a controlled ruling like this. He persuaded Nino of the diabolical factor, and things went from there.

So, in reality, my original thought that EPA largely won this case may not be so true.

#FreeSpeech gets another win from the Supreme Court

I agree with The Nine in killing a Massachusetts law severely restricting conversations around abortion clinics. SCOTUS did not invalidate its previous ruling upholding a Colorado law with "bubble zones," which Massachusetts used before 2007.

It was also sad, but not surprising, to see the ACLU on the wrong side of this case. That said, today's ACLU probably would not defend neo-Nazis marching through Skokie, Ill. It certainly would not defend anti-gay rights activists marching through the Castro district of San Francisco.

Yes, the old bubble-rule law required more police work. Aren't Constitutional liberties worth it?

SCOTUS has also decided Canning vs. NLRB, the case over whether Obama could use presidential recess appointment powers during "pro forma" Senate sessions. A majority ruling said "no," while leaving open the possibility that if pro forma sessions every three days cover longer periods of time, they'll relook at the issue.

On the other hand, the pro-forma sessions in the case at hand covered a two-week period, per the Times. How much longer of a period Senate obstructionists would have to stall out with pro-forma sessions to trigger Stephen Breyer's concerns, I don't know.

Nino Scalia, vaunted alleged "originalist" interpreter of the Constitution, in a partially concurring opinion, shows that his "orginalism" blows with the wind, like much of the hot air out of his mouth, per the first link on this story:

"The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president's arsenal," he said. "That is unfortunate, because the recess appointment power is an anachronism."

What a liar he is.

It would be nice to think he might feel the same way were Obama a Republican. But, I don't believe that.

That said, I, overall, think the ruling was right. As the Times notes, the partial filibuster reform Harry Reid rammed through makes this somewhat, but not totally by any means, nugatory.

The Hobby Lobby vs. Obamacare case looks like its ruling is on hold for one more day.

With 83 percent loaf, SCOTUS OKs EPA carbon controls at power plants

Subhead: Greg Abbott sues Obama again, loses again!

After a base ruling, on 5-4 majority, following up on a 2007 ruling that said the Environmental Protection Agency had the authority to regulate carbon dioxide emissions, the Supreme Court said that the EPA had overstepped its bounds on how it could regulate greenhouse gases from electric power plants. The court also said that it could not require a permit for greenhouse gases only; rather, such permits could only be required of plants that needed other pollution permits.

The main issue at stake here is that the EPA can't set different limits on greenhouse gases tahn on traditional pollutants, the court said. Because of that, the net effect will be that the EPA will be targeting relatively small as well as big emitters. And thus, it could see its efforts spread thin. The majority said that, even though GHGs are emitted at different levels than traditional pollutants, the EPA didn't have the right to adjust said levels itself, without an act of Congress.

But, after that, SCOTUS today broadly agreed with the EPA's right to regulate said emissions from electric power plants in general, as announced in a program earlier this month. The ruling does impose a few limits. The main one, per this piece, is that the EPA cannot force individual plants and companies to evaluate different ways to meet carbon goals, at least with any plant expansion that would increase carbon emissions.

Scotusblog separates out all the details of what the two rulings, together, mean.

With that first rebuke aside, it was pretty much a slam dunk, not only in scope, but in broadness of court backing:

Justice Antonin Scalia, writing for the court, said ‘‘EPA is getting almost everything it wanted in this case.’’ Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said. The court voted 7-2 in this portion of the decision, with Justices Samuel Alito and Clarence Thomas saying they would bar all regulation of greenhouse gases under the permitting program.

Kennedy joining in the majority is not a total surprise. This is a monetary issue, but where money meets social issues, he has a small corner of "social justice" Catholicism in his heart. Roberts is more surprising, and Nino Scalia, writing the opinion, no less, is more surprising yet.

Per commenters at the second-linked NYT piece, while this is purely a legal issue, it may mean that, beyond the legalities, at least some of the court's conservatives believe global warming is a real issue and of real concern.

And, it's a slapdown to wingnuts of the like that, cockroach-like, cover the ground here, per the third-linked story:

The utility industry, the U.S. Chamber of Commerce and 13 states led by Texas asked the court to rule that the EPA overstepped its authority by trying to regulate greenhouse gas emissions through the permitting program.

So,  take THAT, Greg Abbott.

Also of note is that SCOTUS declined to review its 2007 ruling when taking this case.

Polico made a hash of this story, other than noting the initial 5-4 ruling. Its top-linked story doesn't even mention the second, 7-2 opinion which is, really, the more serious one, and I have to wonder if it's deliberate.

That said, as I wrote at that time, that carbon regulation program is relatively lax and has half of its end goal already met. So, while this victory is nice, it doesn't mean that much environmentally, rather than legally, until and unless the EPA does more than it currently plans to do.

Meanwhile, back to that subhead, and the last pull quote.

I immediately tweeted the Abbott campaign, reminding him that he had just sued again and lost again. (That said, I'm sure he'll somehow try to spin the initial 5-4 vote as a win of some sort. I'm sure that he will NOT learn his lesson from the "main" 7-2 vote, and will continue to sue the EPA at the drop of a hat. Moron.)

He's not officially "spun" yet, but, per a Christian Science Monitor piece that takes a more skeptical view in general of just how much leeway SCOTUS gave the EPA, other conservatives are spinning. Oh, and I disagree with the CSM take on the ruling. Among other things, its story doesn't even mention SCOTUS' refusal to revisit its 2007 ruling, which was, itself, a defeat for the wingnuts. Scotusblog also agrees that this is generally a solid win for the EPA.

And yet, per the Texas Tribune, it's seemingly a kind of illogical win. The three conservatives who opposed the EPA's "tailoring" of emissions levels for GHGs nonetheless stood by it having the authority to regulate GHGs even though GHGs aren't specifically mentioned in the Clean Air Act, just unenumerated future pollutants.  If Congress is assumed, by the three "swing conservatives," to have given the EPA the authority to figure out what seeming pollutants, per post-1970s analysis, need regulation, then surely Congress gave EPA the same authority to set the standards for what counts as pollutants or not.

Even though Scalia read the decision, at heart, I'm seeing the sneaky hand of The Umpire, the same sneaky hand that was behind his switch on Obamacare, a switch done with the side benefit of killing off forcible Medicaid expansion, forcing the Obamacare non-user tax to be called a tax and not a few, and killing dead a highly expansive reading of the Commerce Clause.

One should never, ever, underestimate why The Umpire switches away from his seemingly "normal" side.

In-state only: The latest #gunnut wet dream

Image from Gary Marbut website via Mother Jones

That wet dream, from a Montanan named Gary Marbut, is attempting to have the gunmaking and gun-buying process kept entirely in-state:

Gary Marbut has a dream: a single shot, bolt-action, made-in-Missoula, .22 caliber rifle called the Montana Buckaroo. For the time being, the Buckaroo, adapted from an expired 1899 patent and intended for use by small children, exists only on paper. "Our attorneys have insisted that I NOT complete EVEN ONE Buckaroo," Marbut (said). ...

That's because Marbut's real target isn't the 5- to 10-year-old skeet-shooting demographic—it's the United States Supreme Court. His goal is to effectively nullify decades of federal gun law, and he thinks he's found a trick no one else has tried. In 2009, Marbut pushed a law through the Montana Legislature asserting the state's partial immunity from federal gun regulations, and then sued the Department of Justice for the right to follow through. Under his scheme, the federal government would be helpless to regulate firearm production or distribution—so long as the guns in question never cross state lines.

And, it's become popular elsewhere in wingnuttia:

 Lawmakers in 34 states have introduced copycat versions of Marbut's Firearms Freedom Act, six of them in the five weeks since the massacre at Sandy Hook Elementary School in Newtown, Connecticut. All told, nine state attorneys general have signed onto an amicus brief supporting him; eight governors have signed it into law. The National Rifle Association supports Marbut's law; so does the Cato Institute.

Gee, shock me. Now, as gun control gets debated at the federal level, will some non-skittish House or Senate Democrat bring this issue up, including the NRA support of it, to further slap it and Wayne La Pierre down?

If only he had tried this in the 1960s, and the Warren Court would then have fully federalized the Second Amendment. (More on that in a moment.)
 
I would still say that if the bullets come out of state, he and any buyers would still be nailed that way, with penumbras of 2nd Amdt + Interstate Commerce Clause. I would also say that because the first clause of the second amendment is the primary clause, the need for a well-regulated militia, combined with the federal government having power over National Guard activations, he would fail that way.

Meanwhile, Marbut was first squelched in federal district court, upholding the Bureau of Alcohol, Tobacco and Firearms shutting him down for not having a federal gun manufacture license. The case has been accepted for oral argument on appeal by the Ninth Circuit, though.

Meanwhile, does Marbut have a snowball's chance on this case? Will the "originalists" in the court system support him if this goes all the way to the Supreme Court?

Speaking of .... from the story:

(E)ven Supreme Court Justice Antonin Scalia thinks the federal government can regulate the plants you grow in your backyard.

Very few biblical fundamentalists are so fundamentalist as to still believe in a flat earth. Likewise, Nino and gang are generally pretty damned selective in the name of conservative judicial activism about their originalism. So, that counterargument by Mother Jones doesn't necessarily carry much water.

Besides, going back to originalist arguments — James Madison wanted to federalize the Bill of Rights when it was first written.

That said, this is also just another sign that, contra originalist nuts like Nino Scalia, Samuel Alito and Clarence Thomas, a constitution written in pre-modern times for a population 1/80th of today's, and with states more nearly equal in size, etc., is about as intelligent as biblical fundamentalism, which it closely parallels.

It's irrelevant in a day of machine guns, as well as of nuclear weapons, etc.

If Marbut decided to start a backyard nuclear centrifuge, then get somebody in Montana to make an atomic shell-firing howitzer (our military had them already in the 1950s), what would the NRA say then? 

Scalia again not an originalist #teaparty folks

In the Supreme Court's ruling overturning a conviction based on warrantless GPS tracking, Justice Nino Scalia drew parallels with the Constitutional Founding Fathers, saying something similar would have been considered a Fourth Amendment violation by them, in all likelihood. But, despite the fact that, as Justice Sonia Sotomayor noted, police departments could either do similar stuff with other electronic trackers OR try to get, say, cell phone companies to turn over their GPS logs of suspects who have cell phones, Scalia slinked away from extending the Fourth Amendment parallels more broadly.

In general, it seems like older justices have little conception of the pace of technological change, either.

Therefore, contra Scalia, there's PLENTY of reason to rush forward.

Under his logic, if a colonial court had been asked whether it was constitutional, under the British constitution, to tax people on stamps without representation, he would have said no, but he would have said ... we'll consider a tax on ... er ... say, tea! ... if and when it comes up.

Whether he's more a tech illiterate or a big-spy government justice, I'm still not quite sure.

That said, Sotomayor had a chance to make a bigger splash. Had she joined the concurring opinion in this case, as this story notes, she could have gotten an expanded ruling:

In a separate concurring opinion, four justices—Alito, Ginsburg, Breyer, and Kagan—criticized the majority’s approach as unnecessarily limited by "18th century" views of property. Noting that there are many services such as cellphone tracking, toll-road records, and modern cars’ onboard data recorders that allow cars to be tracked without trespassing, these justices suggested the need for a broader focus on privacy issues. In this they, like Justice Sotomayor, seem sympathetic to the D.C. Circuit’s suggestion that when the government collects a lot of bits of data about you, it’s the aggregate of the data—the mosaic that it represents about you—that determines whether there is a search, regardless of the status of any particular bit.  

Why she didn't, I have no idea. A great chance wasted.

NYT's Linda Greenhouse shows herself a travesty

Another refutation of the "liberal" NYT myth here.

But, an informal proof of how much the Peter Principle works at major news organizations.

In a special set of mini-columns on the 10th anniversary of Bush v. Gore, columnist and former SCOTUS reporter Linda Greenhouse says this of Bush v. Gore:

I’m often asked for my thoughts on Bush v. Gore, and liberal audiences are often disappointed when I describe the decision not as a travesty or tragedy, but as a bad hair day. By this, I mean that it was just something that happened, a weird gust of wind that blew through the court

Bush v. Gore was "just something that happened"? The "Brooks Brothers mob"? The armada of lawyers, led by James Baker? That all was "just something that happened"?

Of course, earlier on in her comments, Greenhouse shows how idiotic she was back then:

I assured my editors that the court’s conservative majority believed too deeply in federalism ever to entertain a challenge to how Florida was counting the votes.

Right. Sure. The court wasn't quite as activist then as now, because it wasn't as far right. But, Nino Scalia, above all, already showed plenty of activism more than a decade ago.

Here's more the truth, from Larry Tribe:

I was then stunned when questions from the bench to my co-counsel David Boies, who argued the second and ultimate case, hinted that the court might make permanent its earlier decision to stop the recount temporarily.

But not even those hints prepared me for the 5-4 late-night decision in which the court announced that equal protection demanded a more uniform approach to counting the ballots — only to add that, having itself run out the clock, it sadly had no choice but to end all the counting that very night (Catch-22!).

But, nooooo .... this all was "just something that happened." At least the NYT op-ed page, overall, isn't quite as bad as the WaPost. Certainly not on house editorials.

The Constitution isn't the Bible, TPers - or Scalia

Of course, the bible isn't the bible as far as infallibility, or divine inspiration, either, but, stay with me on this

The Economist is spot on: When people like the Tea Partiers (or Supreme Court INJustice Antonin Scalia) treat the Constitution like conservative Christians do the Bible, looking to it as both infallible and timeless, this is what happens:

When history is turned into scripture and men into deities, truth is the victim. The framers were giants, visionaries and polymaths. But they were also aristocrats, creatures of their time fearful of what they considered the excessive democracy taking hold in the states in the 1780s. They did not believe that poor men, or any women, let alone slaves, should have the vote. Many of their decisions, such as giving every state two senators regardless of population, were the product not of Olympian sagacity but of grubby power-struggles and compromises—exactly the sort of backroom dealmaking, in fact, in which today’s Congress excels and which is now so much out of favour with the tea-partiers.

With Nino Scalia, I think it's a product of his Catholic background, where priests need to interpret Scriptures in light of church tradition. So, St. Nino of Numbnuttery thinks he needs to interpret the Constitution in light of originalism.

And, it's not just Nino, but other intellectuals of the right:

Conservative think-tanks have the same dream of return to a prelapsarian innocence.

There is no such thing; governance, like Hobbes' state of nature, never was primeval.

Antonin Scalia, tombstone expert; Team Obama, enabler

In arguments over whether a massive, clearly Christian, cross belongs on federal land in the Mojave Natioanl Preserver, the Supreme Court justice claims a cross is an interfaith symbol because it represents all war veterans.

Hey, Nino, right across the river from your office is a place called Arlington National Cemetery. Want to actually investigate how many crosses you’ll see on the tombstones of Jewish war veterans?

Indeed, he got called out on that ground, at that moment in argument:

(ACLU lawyer Peter) Eliasberg objected: “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”

Scalia shot back: “I don’t think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

Oh, yes, in Tombstone Nino’s mind, one Jew, Buddhist or whatever with a cross on his or her tombstone, even if placed there by someone else’s request, and not the dead person’s, would justify his belief, at least in his own UNoriginal mind.

YOUR conclusion is outrageous.

Also outrageous is the Obama Administration being an enabler of breaking of the First Amendment. But, since Prez Kumbaya has actually expanded Bush’s faith-based initiatives, I’m not surprised and neither should you be.

Why was Nino Scalia at …

(The pics that will make you hurl!)

A “Lady Liberty” dinner honoring long-term ACLU President Nadine Strossen?

First, we have Nino getting a hug from Nadine, while fellow Supreme Court Justice David Souter DOES look like he’s going to hurl. Or crap his pants. Or like he's already crapped his pants.

Or, maybe he's struggling to hold in a bad joke.

But, that’s not the best!

HERE’S the best. Nadine making love eyes at Nino.

Nadine, did you smoke a cigarette afterward? Did you use protection? Did you ask him to lock you up in a mock Gitmo cell? Did he offer to waterboard you?

Anyway, back to the rhetorical question:

Why was Nino Scalia at a “Lady Liberty” dinner honoring long-term ACLU President Nadine Strossen?


That would be like the Sierra Club inviting Dick Cheney to a Carl Pope dinner. (Of course, that, too could still happen.)

OK, that would be like Defenders of Wildlife inviting Sarah Palin to a fundraising banquet.

I saw this with my own orbs on page 11 of the summer 2008 issue of “Civil Liberties,” the ACLU’s national newsletter, and then Google Imaged for the pics.

This is the same issue where hypocritical Executive Director Anthony Romero (after being hired as ACLU’s executive, he was teaching major U.S. companies how to comply with the Patriot Act, and when an ACLU board brouhaha broke out, Strossen supported him) has the P1 column entitled “Fighting for Justice at Guantánamo.”

Excuuusseee me, but hasn’t your biggest adversary in the judicial branch been Antonin Scalia?

Maybe if the ACLU had Dick Cheney’s shotgun to raffle, with part of the prize including a free shot or two at Nino, but otherwise …