Tonight: Open Thread

4925184432_2f943a7bdf_bGood Evening

Just three links for you tonight.

First, this is one headline I bet you never thought you would see here on Sky Dancing’s Front Page…

Scalia Gets It Right

Go ahead and wipe your eyes and read those four words again, cause I guarantee you won’t be seeing it written here any other time…in the foreseeable future.

Per Scott Lemieux…from LG&M via American Prospect:

The collection of DNA evidence is a powerful crime-control tool, but it also has the potential to lead to greater invasions of privacy. Today, a bare majority of the Supreme Court held in Maryland v. King that the former considerations should outweigh the latter. The Court’s ruling both creates important Fourth Amendment law and illustrates some important facts about the personnel on the Court. The question at issue in Maryland v. King is whether DNA information could be collected (via a cheek swab) from someone arrested for—but not convicted of—an offense. The facts of the case certainly make a superficially compelling argument for permitting the practice, as DNA evidence collected from Alonzo King was used to identify him as a suspect in a rape case. But the fact that the policy “worked” in this particular case is not, in itself, an argument that the practice of collecting DNA information from people who haven’t been convicted of a crime is a “reasonable” search and seizure under the Fourth Amendment. The Court’s justifications, however, are shaky.

Majority opinion written by Kennedy, with Roberts, Alito, Breyer and Thomas in agreement depends on one key aspect…

In attempting to establish whether taking DNA evidence from a suspect without his or her consent is constitutional, Kennedy balances the state’s interest in DNA collection against the individual’s privacy interest. Kennedy argues, without exception, that the states’ interest in collecting the evidence is compelling. The more contestable premise is Kennedy’s assertion that “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.” The problem here, though, is that the crucial intrusion of privacy comes not so much the cheek swab as the detailed data the swab collects. When you consider the identifying information the swab obtains, it is difficult to maintain that the violation of privacy is minimal, and without this premise Kennedy’s argument collapses. Kennedy’s contention that the state’s primary interest in collecting DNA samples is “so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody” is scarcely more credible. As in this case, the state’s primary interest is in solving future crimes, not in identifying suspects, which can almost always be done by less intrusive techniques like fingerprinting even when a suspect is not carrying I.D.

Sure, a cheek swab with a Qtip is not as evasive as a full cavity search, but it sure is not the same as taking someones fingerprints.

This point, and many more, is made by a tour de force dissent written by Justice Antonin Scalia (and joined by Justices Ginsburg, Sotomayor, and Kagan.) The effect of the Court’s decision is to search people for crimes for which it has no probable cause to do so. And, as Justice Scalia notes, this cannot be consistent with the Fourth Amendment:

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

The key to Scalia’s absolutely devastating dissent is the point that the balancing test employed by the majority is inappropriate, because suspicionless searches are never permitted by the Fourth Amendment as ends unto themselves. This is particularly disturbing because, in the long run, such balancing tests tend to be employed with an anvil on the state’s side of the scale. The majority’s attempt to disown these potentially disastrous future consequences are highly unconvincing. As Scalia puts it, “[t]he Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster.”

Uh, I must say….yes I do believe Scalia did get it right, this time.

And did you notice who was along with Scalia in the dissent?  Ginsburg, Sotomayor, and Kagan. How does that make for an interesting split for a SCOTUS decision?

The buzz over at Buzzfeed: Flashback: Obama Promised Lower Health Care Insurance Premiums For Everyone

When he was selling his health care overhaul as a presidential candidate and then as commander-in-chief, Barack Obama repeatedly argued that the plan would lower insurance premiums for everyone. But in California, at least, healthy young people — the vast majority of whom voted for Obama in 2012 — are seeing their costs go up.

Conservative author Avik Roy at Forbesreported Thursday that ” for the typical 25-year-old male non-smoking Californian, Obamacare will drive premiums up by between 100 and 123 percent.” Roy cited data on showing that the median cost of the five cheapest health care plans in California was only $92 for young people, while under the ObamaCare exchanges the cheapest plan will cost an average of $184 a month.

More at the link.

And then there is this little nugget of news in the science world…something discovered that is just a mere 300 light years away. Newly discovered alien world is giant, hot and 300 light-years away | McClatchy

Scientists have snapped an image of a newly discovered alien world thatis just 300 light-years from Earth.

The planet, dubbed HD 95086 b, is huge – four to five times the size of Jupiter – and it makes a wide circle around its young sun, orbiting the star at twice the distance between our sun and Neptune.

Despite the wide orbit, scientists estimate that the planet is burning hot with surface temperatures around 700 degrees Celsius (almost 1,300 degrees Fahrenheit). Still, it is possible that water vapor could exist in its atmosphere, as well as methane gas, said Gael Chauvin, one of the scientists who helped discover the planet, in a statement.

Its host star is just 10 million to 17 million years old, and astronomers say it is a bit more massive than our sun. It is surrounded by a disc made up of gas and dust, which is likely where HD 95086 b first formed. The disc may be harboring other, hidden planets as well, scientists say.

This is an open thread…y’all have a nice night.


Temper Tantrum Tony

There’s a new book out by Jeffrey Toobin that confirms what we all think about SCOTUS and some of its right wing, political demagogues.  The most obvious conclusion of the many stories in the book is that Justice Scalia is temperamentally unsuited to be a judge. He should be a precinct boss from some thug district. He appears to actively bully other justices into his way of things and is the enforcer of right wing political correctness. He also throws extreme fits of temper when he doesn’t get his way. Scalia lost it over both the latest immigration suit and the health care law decision.

The book confirms previous reports that Roberts changed his vote in the landmark case over President Obama’s healthcare law after initially siding with the conservative justices. But Toobin reports — as others have implied — that what pushed Roberts away was the conservative justices’ insistence on striking down the entire health law.

“Scalia’s view of the justices as gladiators against the president unnerved Roberts,” Toobin writes.

The book describes Scalia as “furious” and “enraged” at Roberts — contradicting Scalia’s public statements brushing aside any tension.

Evidently Scalia and his cronies are so temperamentally unsuited for their jobs that they are even recognized as being more political hacks than judges by most Republican stalwarts.  This includes retired members of SCOTUS.

Much like the Republican Party, the conservative wing of the Supreme Court has gotten staunchly more conservative over the past several years, Toobin notes. He says the old guard of recent Republican justices has been deeply upset by the Roberts court.

Toobin notes the long, stammering dissent John Paul Stevens wrote and then read for the Citizens United campaign-finance case, which he said “captured everything that offended Stevens most about the Roberts court.”

It had the same effect for Justice David Souter.

“He abhorred the views of Roberts and Alito. Souter didn’t like what the Republican Party — his party — was doing to the court, or to the country,” Toobin writes.

Former Justice Sandra Day O’Connor “had projected onto Roberts her idea of what a chief justice, and a Republica, should be,” Toobin writes, but her reservations grew as she watched the court overturn core pieces of her legacy. Toobin also recounts O’Connor talking to Souter about her decision to leave the court.

” ‘What makes this harder,’ O’Connor told Souter, ‘is that it’s my party that’s destroying the country.’ “

I refuse to call these people deeply conservative.  It runs contrary to the very definition of the word conservative.  These folks are just plain reactionary activists.

Although Toobin says Scalia has descended from scholar to “right-wing crank,” he notes that Scalia came to the court with a unified theory of law — originalism — and has helped recenter important cases and more general discussions around what the Founding Fathers might have intended.

Justice Clarence Thomas, known primarily for his silence during oral arguments, is the court’s “pathbreaker,” always pushing for more, driving the court to the right in much the same way the Tea Party has pushed Republicans, Toobin says.

Justices Thomas and Scalia are clearly candidates for impeachment in their refusal to recognize their conflicts of interest as well as their political thuggery of our law and Constitution. We’ve written about this before as have others.

But that’s what happened at the Supreme Court earlier this week in what Washington Post columnist Dana Milbank described as “an extraordinary display of judicial distemper” — “more campaign speech than legal opinion” – as Antonin Scalia did what Scalia usually does when things don’t go his way: he threw a temper tantrum.

In his scathing dissent in United States v. Arizona, where a 5-3 Court majority struck down that state’s infamous “papers please” immigration statute, Scalia put aside the law and launched into a highly-partisan, ad hominem, rant against the Obama administration over policies, such as the presidential directive on the DREAM Act, totally unrelated to the issues before the Court.

According to Milbank, Scalia thundered that the Obama administration “desperately wants to avoid upsetting foreign powers;” that it was acting with “willful blindness or deliberate inattention” to Arizona’s illegal immigrants; that the majority’s opinion “boggles the mind;” and that the states are “at the mercy of the Federal Executive’s refusal to enforce the nation’s immigration laws.”

Salon’s Nathan Pippenger added that Scalia offered “plenty of FOX News-ready invective” about Arizona residents who “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”

As Scalia’s stunned audience listened to what Pippenger described as Scalia’s “bellowing, bullying and bombastic” screed, the Justice came off sounding like some crazed neo-Confederate re-enactor reminiscing about the Lost Southern Cause and “the jealousy of the states with regard to their sovereignty.”

Scalia also made the astonishing claim, as Pippenger notes, that had the Court issued its decision in the 1780s, the United States might never have happened at all since no state would have been willing to enter the Union under the conditions set by the Court.

Commentators have properly scolded Scalia for displaying an utter lack of judicial temperament, which has once again compromised the Court’s standing with the public.

Dems have been calling out Thomas and his Teabagger wife for some time for both conflicts of interest and gift taking of an extraordinary nature.

As the Supreme Court begins its fall session, Rep. Earl Blumenauer (D-Ore.), Rep. Louise Slaughter (D-N.Y.) and some of their colleagues are asking the House Judiciary Committee to hold hearings on alleged ethical violations and raising questions on whether the justice can be impartial.

Among their charges against Thomas: that the justice failed to report at least $1.6 million that his wife, Ginni, had earned since 1997; that he might have failed to report gifts from rich supporters; and that he inappropriately solicited donations for favored non-profits, according to their letter sent to Judiciary Chairman Lamar Smith (R-Texas) and ranking member John Conyers (D-Mich.).

“The Supreme Court’s greatest assets are its integrity and the public trust,” Blumenauer said in a statement. “Yet for months now, concerns have been building about the unwillingness or the inability of the Supreme Court to address allegations of potential ethics violations by Justice Clarence Thomas.”

Blumenauer was still collecting signatures on Wednesday night, and told POLITICO that 45 lawmakers have so far attached their names to the letter.

The Democrats’ concern over Ginni Thomas’s income stem from 13 years’ worth of revised disclosure reports that Thomas released in January, which detailed his wife’s earnings from Hillsdale College, the Heritage Foundation, and House Republican leaders, among other sources. Those figures had been left off Thomas’s previous disclosure forms because, the justice said at the time, he had a “misunderstanding of filing instructions.”

Wednesday’s letter is the second time Democrats have taken aim at Thomas in the last week over what they say are troubling ethical concerns. Last Thursday, 20 House Democrats called on the Justice Department to investigate the same allegations into Thomas in a letter to Judicial Conference of the United States, which oversee the federal court system.

“To believe that Justice Thomas didn’t know how to fill out a basic disclosure form is absurd,” Slaughter said last week.

Unfortunately, ideological and cowed Republicans let them slide and Dems never follow through with anything.  So, these guys get to sit in judgement of extremely important things in extremely political and unfit ways.

What on earth would it take to get them both impeached?  I would put this high on any humanitarian and patriot’s wish and activist lists, frankly.

Judicial Restraint My Old Lady A$$

Methinks these Justices protest too much.  It’s actually pretty telling too.  Scalia seems to be getting his questions from old Fox News shows and Thomas has once again proven that no questions are necessary when you know exactly how you’re expected to vote to keep the perks pouring in.  It makes one wonder if Roberts is the least bit concerned about how “his” court will go down in history. If comparing the health care market to broccoli is a sign of great intellect, please, buy my a ticket to Palookaville.  Here’s how Charlie Pierce puts it.

It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma. And today, apparently, he ran through every twist and turn in the act’s baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the “Cornhusker Kickback” — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that’s the standard.) He’s really just a heckler at this point. If he can’t do any better than that, he’s right. Being on the court is a waste of his time.

Better yet, check out Jonathan Chait’s piece on Conservative Judicial Activists Run Amok.  It reintroduces an essay by Jeffrey Rosen from 2005 on how the court was undergoing some fairly radical changes.  The Rosen essay specifically references a Thomas decision written with an amazing amount of paraphrasing from a libertarian kook named  Richard Epstein who is obsessed with protecting property at all costs; including human ones.

 As Epstein sees it, all individuals have certain inherent rights and liberties, including ”economic” liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation — when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein’s view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein’s worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt’s New Deal.

After Thomas joined the Supreme Court, Biden’s warnings seemed prescient. In 1995, echoes of Epstein’s ideas could be clearly heard in one of Thomas’s opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress’s constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government’s power. He assailed his liberal colleagues for characterizing ”the first 150 years of this Court’s case law as a ‘wrong turn.”’ He continued, ”If anything, the ‘wrong turn’ was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.”

Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein’s writings, the similarities were striking. Indeed, Thomas’s argument closely resembled one Epstein had made eight years earlier in ”The Proper Scope of the Commerce Power” in the Virginia Law Review — so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (”The ordinary standards governing attribution of sources — the violation of which constitutes plagiarism — seem not to apply in Justice Thomas’s chambers,” Levinson wrote in the Texas Law Review.) Biden’s fear that Epstein’s ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90’s as a small but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century.

Chait takes this essay into the present and the analysis presents a chilling future of judicial activism unlike anything we’ve seen before.  The hearings this week on the ACA imply a SCOTUS willing to rewrite legislation in the name of ideology.  The so-called swing vote, Justice Kennedy, has created loopholes in cases before that have allowed state legislatures to drive huge right-depriving laws through constitutional rights.  By introducing the factually inaccurate, unscientific idea of “fetal pain” in  Gonzales V Carhart, Kennedy opened a can of whoop ass based on religious propaganda on American Women.

Writing for the majority, Justice Anthony Kennedy said:

“States . . . have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus . . . A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.”

The National Right to Life Committee thinks that Kennedy’s directive, particularly the bit at the end —”even life which cannot survive without the assistance of others”—leaves open the possibility of revising the viability standard. As Olivia Gans, an NRLC spokesperson, told me a few weeks ago, before the law had passed, “What Kennedy was saying was that states can and should look at other variables to figure out what’s in the best interest of the state.”

This is to medical science as the broccoli argument is to economics.  It’s clear that the justices are venturing into something beyond judging constitutionality.  Consider this thought offered by Chait.

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather:

In the morning session — in which the court weighed how much of the law should stand if the mandate is ruled unconstitutional — Scalia cited the horsetrading required to pass the bill — including the politically embarrassing, and failed, Cornhusker Kickback. He also admitted that he’d like to see the whole law fall if the mandate is ruled out of bounds.

In the afternoon, he took pains to remind the court of the unpopularity of the individual mandate.

The exchange occurred when Solicitor General Donald Verrilli Jr. rejected a hypothetical that relied on the notion of Congress passing a massive new tax. This, he argued, would have to overcome massive political constraints.

At that point Scalia chimed in: He would’ve thought the individual mandate would also be too much of a political liability to ever pass Congress.

In fact, the “Cornhusker Kickback” was stripped out before the final bill, but Scalia seems not to know that.

Just two years ago, the idea that conservatives might win the health-care fight in Court rather than the Senate seemed absurd. Just seven years ago, the notion that Republican jurisprudence would be defined by aggressive economic judicial activism seemed even more fantastical. But just as there are few atheists in foxholes, there aren’t a lot of justices of any persuasion willing to walk away from a chance to overturn a duly-passed law that they personally detest.

Whatever issue you may have with the ACA, it was passed by an overwhelming number of Senators and Representatives after a year of hearings, testimony, and rewrites. It deserves a fair hearing before something other than a Kangaroo Court.

Countdown to SOTU

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

We’re going to be live blogging the SOTU address to night so be sure to join us.   However, dribs and drabs of SOTU preview are hitting the media channels already.  It’s probably good to do a round up of them before we settle in with our popcorn and disappointment.

ABC’s Jake Tapper is part of the White House entourage. Here’s a list of things he has that will be covered tonight by President Obama.

Pursuing a path of deficit reduction and government reform, President Obama will tonight in his State of the Union address call for a ban on earmarks and he will propose a five year budget freeze on non-security related discretionary spending, ABC News has learned.

The proposals come as the president prepares to tackle the deficit and debt and as he faces a House of Representatives in Republican hands, many of whose members include those affiliated with the Tea Party who may be willing to embrace both moves.

The president will propose some new spending in certain areas that address the speech’s theme of “How We Win the Future”: innovation, education and infrastructure. But those increases will be proposed within the context of a proposed partial budget freeze.

In other words, the President’s State of the Union address will embrace the politically expedient while denying the obvious.  Our country has a severe lack of critical mass of buyers with incomes to support their own discretionary spending.  We also have levels of unacceptable unemployment all over this country which means less taxes and more outlays.  To not specifically address what we know from 70 years of economic theory directly and continue living in a Reagan-like stupor over what really drives things like jobs and GDP growth is just morally reprehensible for any educated person in a leadership position.  Look at that picture up there.  There appears to be a huge group of them.

Earmarks aren’t a huge deal as I’ve showed in post after post on the actual numbers of the budget deficit. They make up less than 1 percent. That’s a political potato chip and no one seems to be able to eat just one. No wonder all the economists left the west wing and have been replaced by investment banker/lawyers. You can only fight an uphill right wing meme so long coming from a Democratic President.

ABC has a SOTU primer up that gives some history and sets some expectations. They believe that POTUS will make hay of the productive lame duck session.

While the election was heated, there has been a move since to tamp down the rhetoric and move toward bipartisan solutions. The lame-duck period after the election was particularly productive as Democrats and a few Republicans passed a number of bills before Republicans took control of the House this month.

Obama will likely point to this period as the way government should work. Obama will likely point to this period as the way government should work. Republicans grumbled at the time that Democrats took advantage of the lame-duck session, passing legislation before Republicans officially took control of the House in January.

If there is a possibility to get some infrastructure spending through at any meaningful level, then I could experience a little sense of relief.  TPM believes that even some key Republicans will go along with that type of spending. Of course, that actually is a bit of an earmark isn’t it?  Doesn’t every congressperson want their share of road funds or that new airport?  How these get chosen and funded might just mean we see more earmarks in reality.  However, any government spending that increases demand and spurs jobs at this point is preferable to none.  I’d even take a few bridges to no where at this point.

One area the Republican party’s anti-spending crusade puts them in a bind is infrastructure spending. Repairing roads and bridges, modernization, etc. have historically been bipartisan priorities — but they’ve also always cost a lot of money.

Ask Republicans whether they want to include transportation infrastructure in their calls for broad spending cuts, and you don’t get a very specific answer.

“We’ve got to learn how to prioritize and do more with less in all areas of government,” said House Majority Leader Eric Cantor at his weekly press conference today. “It just is what it is. In the terms of transportation, we’ve got to figure out ways how to leverage dollars, how to come up with innovative ways to address the nation’s ailing transportation infrastructure.”

The biggest problem getting these through congress will have to do with the Federal Accounting system as much as anything.  You see, the government doesn’t depreciate or amortize things like battleships and dams.  Expenditures are fully expensed so in terms of the budget deficit, things will get worse in the short term. This means there has to be a cease fire on the ‘size’ of the deficit on these kinds of items.  Their benefits last for years.  They create do create jobs and jobbers.  The problem is they are an upfront cost and we live in a world of political football rhetoric that includes deliberate misunderstanding of economics as well as economics deniers.

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