Mojo - July 2012

Has the Supreme Court's Political Dynamic Shifted?

| Tue Jul. 3, 2012 7:48 AM PDT
Chief Justice John Roberts chats with Associate Justice Elena Kagan.

While being attacked as a "traitor" by conservatives, Chief Justice John Roberts is enjoying a bit of a boomlet with liberals for voting to uphold most of the Affordable Care Act. But Roberts will soon get a chance to prove himself to conservatives once again, as Politico's Josh Gerstein reports:

The chief will have plenty of chances to make his mark in the next term. Already, the justices are planning to delve into the politically charged issue of affirmative action. They may well add hot-button disputes over same-sex marriage rights and voter ID laws. And the court could even take up the constitutionality of the landmark law Congress passed nearly half a century ago to guarantee African-Americans equal access to the polls: the Voting Rights Act.

Roberts has been deeply hostile to the federal government's efforts to rectify racial inequality. Among his first big cases as chief justice was invalidating a school integration program with the tautological phrase, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," as though there were any effective way to address racial imbalances without considering race. The high court came within a hair of striking down parts of the Voting Rights Act with the conservative justices issuing an implicit warning that they would not hesitate to do so should another challenge reach them. It seems unlikely that Roberts will give one of the most important pieces of legislation in history, the law that finally guaranteed black Americans' access to the franchise, another stay of execution. And having voted to uphold the Affordable Care Act, conservative outcomes in these cases would be insulated against liberal criticisms that the court has become politicized. 

While conservatives are bashing Roberts, Justice Anthony Kennedy's star is on the rise on the right thanks to his vote to strike down the Affordable Care Act. An upcoming case over gay marriage may determine whether his improved reputation among conservatives will endure. Republicans have appealed to the Supreme Court to hear a challenge to the Defense of Marriage Act, an issue on which Kennedy, who wrote the 2003 opinion striking down anti-sodomy laws in Lawrence v. Texas, is expected to be the swing vote. Perhaps conservatives think they win either way: If part of DOMA is struck down, religious conservatives will be more likely to flood the ballot box in November; if it's upheld, then DOMA's federal definition of marriage that excludes same-sex couples remains the law of the land.

Republicans may believe that Kennedy's vote to strike down the Affordable Care Act is a sign of a newly permanent allegiance to the court's right-wing bloc. My colleague Kevin Drum certainly seems to think so, having written that "it's really not correct to think of Kennedy as a centrist anymore." It was never really proper to view Kennedy as a centrist rather than a conservative. But Drum is being pessimistic, and Republicans cocky, if they think Kennedy is now a clone of Justice Antonin Scalia, whose recent opinions owe more to Fox News than James Madison. The same judicial philosophy that led Kennedy to join with the Democratic appointees to strike down most of Arizona's draconian immigration law and find mandatory juvenile life without parole unconstitutional could also lead one to see the individual mandate as an unconstitutional infringement on personal liberty. It could also cause Kennedy to view DOMA as a prime example of federal overreach. Kennedy has always been a conservative with a bit of a libertarian streak. 

The cases likely to come before the court in the near future will provide plenty of opportunity for Roberts to restore his standing with conservatives and for Kennedy to remind liberals that he's no Scalia. As with the Affordable Care Act case, however, it's anyone's guess how they'll actually turn out. Thanks to Roberts' vote to uphold Obamacare, the high court has a newfound legitimacy that will make it difficult to decry the results as partisan. 

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We're Still at War: Photo of the Day for July 3, 2012

Tue Jul. 3, 2012 7:45 AM PDT

Marines with Company G., Battalion Landing Team 2nd Battalion, 1st Marines, 31st Marine Expeditionary Unit, return from a patrol in Shoalwater Bay, Queensland, Australia. The Marines have set up in defensive positions in and around the simulated town of Raspberry Creek, in preparation for the advance of the Australian Army's 1st Brigade. The coming assault is one of the key battles of Exercise Hamel 2012, the multi-national training evolution between the Australian Army, US Marines, and New Zealand Army, serving as 1st Brigade's certification exercise. The 31st MEU is the only continuously forward-deployed MEU and is the nation's force in readiness in the Asia-Pacific region. US Marine Corps photo by Cpl. Jonathan Wright.

Still-Terrible Virginia Ultrasound Bill Now in Effect

| Mon Jul. 2, 2012 2:00 PM PDT

Virginia's invasive new ultrasound law went into effect on Monday, meaning women in the state now have get a medically unnecessary procedure and wait 24 hours before they can get a (legal, constitutionally protected) abortion.

There was major hubbub earlier this year when Virginia lawmakers debated the bill requiring all women to get an ultrasound before having an abortion. The majority of the outrage, however, was directed at the fact that the original version of the bill would have required women in the earliest stages of pregnancy—less than 12 weeks post-conception—to have a sonogram probe shoved up their vaginas in order to achieve the desired effect of producing an image of the fetus.

People flipped out once the transvaginal ultrasound bit hit the news, and the Republican lawmakers pushing the bill had to make the state-sponsored penetration part optional. While women in the state can now opt for the jelly-on-the-belly type of ultrasound instead (even if it doesn't produce the desired image), the new law is still burdensome, as my colleague Maya Dusenbery highlighted several months ago. Women aren't allowed to refuse the ultrasound, it's expensive, and the added procedure and waiting period both make it more difficult for women to follow through with the abortion. Moreover, abortion rights groups argue that the premise of the law—that women just need to see what's in their uterus, and maybe they'll rethink having an abortion—is condescending, at best. 

There's another problematic part of the law that Slate's Dahlia Lithwick pointed out back in February:

What’s more, a provision of the law that has received almost no media attention would ensure that a certification by the doctor that the patient either did or didn't "avail herself of the opportunity" to view the ultrasound or listen to the fetal heartbeat will go into the woman’s medical record. Whether she wants it there or not. I guess they were all out of scarlet letters in Richmond.

Critics of the law continue to draw attention to its problems even as it goes into effect. "The government should have no role in a woman's personal, private medical choices," said Tarina Keene, executive director of NARAL Pro-Choice Virginia in a statement on Monday. "This is between her, her family and her doctor. Women deserve our support and respect, not the government's will imposed upon them during a time of crisis."

Government Secrecy Costing Even More Money These Days

| Mon Jul. 2, 2012 12:16 PM PDT
"Psst! When are we launching those covert ops, again?"

$12 billion is a lot of money. $12 billion can buy you one NFL lockout, the most expensive house in the world (twelve times over), or a month's worth of occupying Iraq.

It's also the amount the Obama administration spent to keep government information classified in 2011.

Via the Federation of American Scientists, citing figures reported last week by the Information Security Oversight Office:

The estimated cost of securing classified information in government increased last year by at least 12% to a record high level of $11.36 billion. An additional $1.2 billion was spent to protect classified information held by industry contractors...The ISOO report breaks down the expenditures into six categories (personnel security, physical security, etc.). But it does not provide any explanation for the rapidly escalating cost of secrecy...While some essential security costs are fixed and independent of classification activity, the failure to rein in classification and especially overclassification is a likely contributor to marginal cost growth.

For 2010, the ISOO put the total secrecy price tag at around $10.17 billion, a 15 percent increase from 2009. The 2010 and 2011 estimates are lowball numbers, though, because the ISOO reviews the classification of 41 agencies, but not the CIA and NSA, among others. (For certain intelligence agencies, the act of classifying is itself classified, so wrap your head around that.)

The ballooning financial cost of classification is more or less in lockstep with how the "most transparent administration ever" conducts business with regards to national security matters. When taken together with the Obama administration's Xeroxing of Bush-era State Secrets policy—and its unprecedented clampdown on leaks and whistleblowing—it's surreal to look back on what the president said on, for instance, his second day in office:

The old rules said that if there was a defensible argument for not disclosing something to the American people, that it should not be disclosed. That era is now over.

It's safe to say that it is long past due to officially declare the Obama era a transparency #fail.

Mississippi's Lone Abortion Clinic Can Stay Open, For Now

| Mon Jul. 2, 2012 11:29 AM PDT

On Sunday, a federal judge in Mississippi issued a temporary restraining order blocking the state from enforcing new regulations on abortion clinics. The ruling will allow the Jackson Women's Health Organization, Mississippi's lone abortion clinic, to stay open for now.

The restraining order temporarily blocks a new law requiring doctors at the Jackson clinic to have admitting privileges at a local hospital in order to continue performing abortions. CNN reports:

The judge's order blocks enforcement of the law at least until the next hearing on the matter, which is scheduled for July 11.

"I'm jubilant," said Diane Derzis, clinic owner and president. "It means the constitutional rights of women to make their decision, for the time being, is in place."

The law in question is one of several types of regulations that abortion-rights advocates often refer to as "TRAP laws," short for "Targeted Regulation of Abortion Providers." These are laws that only apply to abortion clinics and are designed to make it difficult for them to continue operating.

Although the Mississippi law might not seem like a big deal on its face, it threatened to make it impossible for women in Mississippi to obtain a safe, legal abortion. Only in-state doctors can get admitting privileges at the hospitals near the Jackson clinic, but most of the doctors who work at the clinic commute from out of state. Even if they moved to Mississippi, the doctors at the Jackson clinic would also have to send a certain number of patients to the hospital each month—and obstetricians/gynecologists working at a family planning clinic don't usually have any reason to admit a woman to the hospital. The Jackson clinic already has a patient-transfer agreement with a local hospital for the (very rare) cases in which there's some sort of complication that requires a woman to be admitted to a hospital.

In general, getting hospital admitting privileges can be difficult for abortion doctors, because it often means they have take on hospital rounds or be otherwise available for the hospital. And many hospitals, including two out of the three in the Jackson area, are affiliated with religious organizations, which don't usually have much interest in helping a doctor who provides abortions. 

At least eight states have a law like the one in Mississippi, according to the Guttmacher Institute. But although lawmakers in other states often claim these bills as efforts to ensure that women seeking abortions are able to get them in a safe place, Mississippi lawmakers weren't shy about declaring that their goal was to end abortion in the state.

The Center for Reproductive Rights, which is representing the Jackson clinic in court, issued a statement on Sunday evening cheering the latest development, but noted that the "battle is far from over," since they will be back in court on July 11 seeking a permanent injunction against the law.

Conservatives Still Freaking Out Over Roberts' Vote

| Mon Jul. 2, 2012 10:05 AM PDT

Chief Justice John Roberts shocked conservatives last week when he rescued the Affordable Care Act by voting with the high court's Democratic appointees to uphold the individual mandate—the part of Obamacare that requires Americans to buy insurance or pay a fine—as constitutional under the federal government's power to tax. Roberts' decision has set off a frenzy of punditry speculating on Roberts' inner motivations, fueled in part by a report from CBS News' Jan Crawford that suggests the Chief Justice buckled to political pressure.  

There were countless news articles in May warning of damage to the court - and to Roberts' reputation - if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

Crawford's report, while extremely interesting, relies on a bit of mind-reading by her sources, several of whom assume the Roberts caved because of public opinion. The reaction to the story and to Roberts' decision in the right-leaning media has been harsh. The American Spectator accused Roberts of committing "constitutional treason," conservative media maven Matt Drudge suggested Roberts' mind was addled by epilepsy. At National Review, Avik Roy concluded that "the bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists." At the libertarian Reason magazine, Peter Suderman writes that "if the story and its speculation about the reasons behind Roberts' switch are true," then Roberts flipped his vote "because prominent Democrats and liberals threatened to throw a temper tantrum if he didn't vote the way they wanted."

Meanwhile, former Supreme Court reporter Linda Greenhouse of the New York Times noticed that conservative pundits started complaining about the liberal media putting "the squeeze to Justice Roberts," about a month ago. According to Greenhouse, that evidence suggests the possibility that conservative clerks or other individuals with knowledge of the court's deliberations leaked news of Roberts' heresy to conservative pundits, who then waged their own campaign to pressure Roberts into changing his vote.

All of this points to the reality that the court, although not merely a partisan institution—ideology and personal motivations play roles as well—is highly partisan. When liberals assumed the mandate was going to be struck down, they wailed about the loss of the court's legitimacy—James Fallows of the Atlantic suggested that a "coup" had taken place. Conservatives responded with mockery: Yuval Levin at National Review wrote that "these people are actually saying that any outcome except the one they want must be driven by an outcome-oriented political crusade." Now conservatives, furious they didn't get the ruling they wanted, are basically saying the same thing Fallows did. Most of Justice Roberts' conservative defenders aren't claiming he was objective and impartial—they're praising his cleverness for supposedly securing a "stealth victory" for conservatives by limiting the federal government's ability to pass new laws under the Constitution's Commerce Clause. I don't know why Roberts switched his vote, or even if he switched his vote, but it's clear many conservatives are angry he didn't behave like a proper member of the team. 

There's something valuable to society in insisting that judges not be partisan figures and interpret the law and the Constitution objectively. But the entire conservative legal movement since Roe v. Wade legalized abortion has been devoted to packing the courts with judges who would rule the way conservatives wanted. Conservatives have been incredibly effective in presenting their legal views as the "correct" ones, but the reality is that conservative views of the Constitution are no less ideological than liberal views of the Constitution. The excuse that this is ideology rather than partisanship doesn't wash—legal ideology tends to track very closely with the partisan preferences of political parties.

No one exemplifies the lack of daylight between partisanship and ideology better than John Yoo, the Bush-era Justice Department official who has joined his conservative colleagues in bashing Roberts. Yoo advises the next Republican president to appoint justices who are like "Scalia or Thomas or Alito, not Roberts." In 2004, discussing the perpetually fence-sitting Republican appointee Justice Sandra Day O'Connor, Yoo asked, "if you're just switching back and forth all the time, if you're in the middle all the time, are you really being a judge[?]" 

Conservatives want their judges to consider themselves card-carrying members of the conservative movement, and at the same time they want those judges' rulings, when handed down, to be treated with unquestionable legitimacy even by those who disagree with the decisions. When those judges diverge from the goals of the movement, they are pilloried as though they were heretical senators or members of Congress, conservative angish only magnified by the knowledge that the infidels cannot be knocked back in line by a competitive primary. Having excoriated liberals for calling the court partisan, conservatives are now gnashing their teeth because the court failed to be as partisan as they wanted. That makes the complaints about politics supposedly driving Roberts' decision ring hollow. They wanted politics to drive the decision. They just wanted it to go their way. 

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We're Still at War: Photo of the Day for July 2, 2012

Mon Jul. 2, 2012 7:24 AM PDT

Michigan Army National Guard infantry soldiers and Reserve Officer Corps Training cadets of the 1st Battalion, 125th Infantry, Rear Detachment conduct an air assault mission using UH-60M Black Hawk helicopters and foot patrols at Camp Grayling, Mich. Photo by the US Army.

Romney Left Bain Later Than He Says, Documents Show

| Mon Jul. 2, 2012 3:01 AM PDT
Mitt Romney (center) and his Bain Capital buddies mug for the camera.

David Corn published an important story Monday morning about Mitt Romney's time at Bain Capital, the private equity firm Romney co-founded. Using documents from the Securities and Exchange Commission, David proves that Romney was involved with Bain's investment in Stericycle, a medical waste firm that has been criticized by opponents of abortion rights for disposing of aborted fetuses. Just as important, though, is the evidence that Romney was signing important documents for Bain—and running Bain-associated companies—well after February 1999, the point when both the Romney campaign and Bain itself claim that Romney left the firm. Here's the key paragraph from David's piece:

The Stericycle deal—the abortion connection aside—is relevant because of questions regarding the timing of Romney's departure from the private equity firm he founded. Responding to a recent Washington Post story reporting that Bain-acquired companies outsourced jobs, the Romney campaign insisted that Romney exited Bain in February 1999, a month or more before Bain took over two of the companies named in the Post's article. The SEC documents undercut that defense, indicating that Romney still played a role in Bain investments until at least the end of 1999.

The Post and the Obama campaign have been attacked for criticizing Romney about deals that Bain made after Romney supposedly left the company in February 1999. But as the government documents and Bain statements highlighted by David demonstrate, Romney remained involved with Bain at least through the end of 1999—and perhaps longer. Here's another key section, in which Bain directly contradicts the contents of a document that Romney himself signed:

In response to questions from Mother Jones, a spokeswoman for Bain maintained that Romney was not involved in the Stericycle deal in 1999, and insisted he had "resigned" from the company months before the stock purchase was negotiated. The spokeswoman noted that following his resignation Romney remained only "a signatory on certain documents," until his separation agreement with Bain was finalized in 2002. And Bain issued this statement: "Mitt Romney retired from Bain Capital in February 1999. He has had no involvement in the management or investment activities of Bain Capital, or with any of its portfolio companies since that time." (The Romney presidential campaign did not respond to requests for comment.)

But the document Romney signed related to the Stericycle deal did identify him as an participant in that particular deal and the person in charge of several Bain entities. (Did Bain and Romney file a document with the SEC that was not accurate?) Moreover, in 1999, Bain and Romney both described his departure from Bain not as a resignation and far from absolute. The Boston Herald on February 12, 1999 reported, "Romney said he will stay on as a part-timer with Bain, providing input on investment and key personnel decisions." And a Bain press release issued on July 19, 1999, noted that Romney was "currently on a part-time leave of absence"—and quoted Romney speaking for Bain Capital. In 2001 and 2002, Romney filed Massachusetts state disclosure forms noting he was the 100-percent owner of Bain Capital NY, Inc.—a Bain outfit that was incorporated in Delaware on April 13, 1999—two months after Romney's supposed retirement from the firm. A May 2001 filing with the SEC identified Romney as "a member of the Management Committee" of two Bain entities. And in 2007, the Washington Post reported that R. Bradford Malt, a Bain lawyer, said Romney took a "leave of absence" when he assumed the Olympics post and retained sole ownership of the firm for two more years.

There is now an immense body of evidence that Romney was deeply involved with Bain Capital and related companies well past the February 1999 date that the campaign has previously cited. Not convinced? Read David's piece.

You Know Who Else Held Fundraisers in Europe?

| Mon Jul. 2, 2012 3:00 AM PDT

Ben Shapiro, author of a book about the corrupting influence of Sesame Street, had a fun little item at Big Hollywood over the weekend. It turns out that the Obama campaign has been sending surrogates to Europe to hold fundraisers. (Millions of American citizens live overseas because of work.) This is funny because, as Shapiro puts it, "Especially in the aftermath of the Supreme Court ruling that upholds Obama’s European-style healthcare plan, Obama's hoping to cash in on like-minded folks abroad."

Here, one might pause to note that, as The Daily's Dan Hirschorn reported, the Romney campaign is also holding fundraisers abroad. Mitt Romney sent two of his sons to Hong Kong, in communist China, to shake down American donors there. Romney himself is heading to London, which is located in England, where citizens are enrolled in something called the National Health Service. (Here are two Big Government stories about alleged euthanasia and confirmed "transgender art 'diversity week'" at the National Health Service.) The Romney campaign is even thinking of holding a fundraiser in Israel, presumably to cash in on like-minded folks abroad who admire what Romney did to pave the way for Obama's Israeli-style healthcare plan.

Shapiro, who writes that "Americans don’t believe that Obamacare is a triumph," implies that the Obama campaign will be raising money from actual Europeans. That would be a flagrant violation of campaign finance laws, which mandate that all election funds come from American citizens. (If you're actually curious about foreign money in American elections, I'd recommend my colleague Andy Kroll's piece de resistance on dark money from the current issue of Mother Jones.) But the implication that Obama will be taking money from Europeans isn't the wrongest part of Shapiro's story. After the piece had circulated through the conservative blogosphere, it gained a (false) wrinkle: Obama himself would be in Paris—on the Fourth of July, no less! Blame the National Review's Andy McCarthy, who wrote as much on Saturday morning and, as of 10:39 P.M. on Sunday, still hadn't issued a correction. One blogger goes so far as to calculate that Obama's Paris junket will cost $2 million in flight costs alone.

The truth: Obama will spend the Fourth, his daughter Malia's birthday, throwing a party on the White House lawn for military families.