Category: Analysis

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2020 Analysis Domestic Policy Election History

Ginsburg’s vacancy shows whose rhetoric is working

The passing of Supreme Court Justice Ruth Bader Ginsburg is a loss for the Court and for the nation. Chief Justice John Roberts called her a “jurist of historic stature”, a “cherished colleague”, and “a tireless and resolute champion of justice.” All that she certainly was; while this blog has at times criticized her frequently dissenting opinions, her 27 years on the bench places her among the top 25 longest-serving justices in history, as well as the longest-serving and only second-appointed woman to join the Court.

While her body was yet warm, Senate Majority Leader Mitch McConnell promised to vote on a replacement nominated by President Trump, whose reelection would be decided in fewer than seven weeks — a position seemingly at stark odds with the one he took after Justice Scalia’s sudden passing in 2016. Then, McConnell stated — within an hour of confirmation of the Justice’s passing — that his vacancy should remain “until we have a new president.” He held that line, refusing to hold a vote on then-President Obama’s choice of Merrick Garland to succeed Scalia in order to “give the people a voice in the filling of this vacancy”, despite the fact that more than eleven months remained in Obama’s second term.

The number of pictures capturing these two together appears to be a small one.

Major papers of record (Washington Post, LA Times, New York Times), have opined hypocrisy. Some Democrats are so outraged that they’re calling for court packing, an idea endorsed by House Judiciary Chair Jerry Nadler and backed by many others. But is McConnell actually changing his position on Supreme Court confirmation votes? A careful read of his statements shows that ‘ol Moscow Mitch is not necessarily a hypocrite but rather a shrewdly calculating, hyper-partisan, master rhetorician. Democrats would do well to notice the difference and attempt to follow suit.

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Analysis Legal Decision Review

confusion abounds in the case of the same-sex wedding baker

One of the most publicized cases of the 2017-2018 Supreme Court term was Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission. At issue was the petition by the owner of Masterpiece Cakeshop that his First Amendment rights had been violated when he was sanctioned by the Colorado Civil Rights Commission for refusing to bake a wedding cake for a gay couple’s reception. This petition was rejected by every court until the Supreme one, which in a 7-2 decision agreed with a small part of the petitioner’s Free Exercise claim and set aside the sanction of the Commission.

In a term beset with split decisions, this result seems at first like a resounding endorsement of the primacy of religious freedom above civil rights. The press about the decision overwhelming framed it as the Court siding with the baker, and the reaction to that formulation caused a lot of concern.

But that formulation was very misleading. The Court didn’t so much rule for the baker as it ruled against the Commission, essentially declaring a mistrial because of what it perceived as anti-religious animus in the record. Justice Kennedy, writing for the majority, explicitly punted on addressing the underlying tension between religious liberty and civil rights that formed the core of the baker’s suit.

What’s also interesting is how disunited the Court was in reaching a 7-2 decision. In all, five opinions were written for this case, only one a dissent. All the opinions attack each other from footnotes, and often the targets of those attacks were themselves written in footnotes. It looks like a lot of the deliberation was done through correspondence, and the contorted opinions suffer from the confusion. But a careful reading of them reveals a clumsily evolving jurisprudence around the Free Speech and Free Exercise clauses, as well as possible fault lines in the Court that could fracture in subsequent decisions where more is at stake. A future case that forces a direct confrontation of the tension between First Amendment and civil rights could be much tighter and more explosive.

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Analysis Domestic Policy Economics Op-Ed Review

income tax apologists’ own analysis shows the rich don’t pay their fair share

No one’s much surprised, but the Democrats are losing opportunities in the messaging war on tax reform. In a gleefully titled “reality check” oped, Fox News and Townhall contributor Guy Benson recently referenced an old USA Today fact check which called the Democrats’ rhetoric ahead of the Trump tax cuts “misleading.” It’s news now because of a Bloomberg piece analyzing 2016 tax data made available by the IRS in August. While that piece is not as hostile to progressive taxation as it might be, it is itself misleading in several ways and clearly seeks to emphasize to the same startling result from Benson’s piece: just over half of federal individual income taxes are paid by the top 3% of taxpayers when ranked by gross adjusted income (AGI).

Benson seizes on this to assert that the “Left’s political stories about ‘fair shares’ and ‘millionaires and billionaires’… [are] not grounded in facts and omit crucial perspective.” But it is Benson and his tax cut apologists — making claims like “we have a federal spending problem, not a revenue problem” — who lack crucial perspective. A careful reading of the very Bloomberg analysis that motivated Benson’s opinion shows just how bad a revenue problem our nation has.

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Analysis Speculation

Kennedy no Swing Justice, Kavanaugh unlikely as dramatic upset to Court’s ideological baseline

As Judge Kavanaugh closes in on joining the Supreme Court, I’m reminded of some thoughts I had when Justice Kennedy first announced his retirement. Kennedy had long been hailed as a “swing vote” because, while a nominal conservative, he frequently broke ranks to side with the liberals. Now some are voicing concerns that another Trump pick, especially in the form of Kavanaugh, will signal a sharp and even unprecedented right turn that will last for a generation: last week, NPR’s Domenico Montanaro opined that this pick will be “replacing the swing vote on the Supreme Court” and that “for the first time in 75 years or so, there would be a conservative majority on the Court.”

There’s some truth that Kavanaugh would pull the Court to the right, but only because he is himself so sharply conservative in his jurisprudence. But Kennedy’s reputation as a swing judge is in fact quite undeserved. Kennedy was a pronounced conservative, and his “swing” decisions — typically involving individual civil rights — can be better understood through his relatively unsophisticated fear of government encroachment against finely scoped individual freedoms. If Kennedy was popularly understood to be a check on the more aggressively conservative inclinations of the modern Court, that understanding was mistaken. And if Kavanaugh is confirmed to replace him, that will most likely just cement the conservative-leaning majority the Court has actually enjoyed for most of the last 75 years.

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Analysis Legal Decision Review

recent decision shows Brett Kavanaugh should not join Supreme Court

President Tump’s pick of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has ruffled some feathers. For example, my Senator Patty Murray is on record opposing his nomination on two grounds: first, that by association with Trump he would overturn Roe v Wade if occasion permitted; and second, due to rebukes he made against the Roberts Court which decided it, he opposes constitutional sanction of ObamaCare. Another complaint in wide circulation is how it is well understood (though somewhat debated) that he would support Congressional action to shield sitting Presidents from civil lawsuits.

While those concerns are valid as far as they go, I’m worried that focusing on them is unlikely to prevail in derailing his appointment since, quite frankly, it isn’t clear that they concern a plurality of Senators. I believe that Kavanaugh’s long record of jurisprudence is independently disqualifying outside those narrow political parameters and more attention should be paid to his overall legal philosophy. Luckily efforts are being made to obtain the fullness of his public record, though powerful Senators are also trying — in some cases hypocritically — to block an open review.

Thanks to reporting from the Intercept, I was made aware of a fairly shocking decision that Kavanaugh handed down — on the very day Trump announced him as his pick — from the three-judge Appeals Court on which he sat. I think that decision is a telling vignette into Kavanaugh’s current judicial philosophy and temperament. It casts serious doubt on his candidacy for the highest court to say nothing of the risk it reveals to government transparency law. I think emphasizing this style of failing will be more salient in openly evaluating Kavanaugh. My analysis follows.

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Analysis Music Review

2017 Music Review: top 10 albums, 20-track playlist

I’ve made a tradition of reviewing my take on the new music scene each year since 2012, and the format seems to be working pretty well. I like it because it keeps me honest as a forcing function to remember what I heard over the course of the year and thoughtfully consider what I liked and didn’t like; and it’s useful as a reference for posterity. As usual, I missed some things and am already aware of them now, but I try to stay mostly in the confines of what I discovered during the year 2017 itself even though I’m now so late. So here now is the sixth annual edition of that effort — enjoy!

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Analysis Book Domestic Policy Nonfiction Review

debate isn’t trash, but “identity politics” might be

So-called “identity politics” have been on the rise for some years. Growing scholarship and discussion of systemic disadvantages against demographic groups has led to a rising and justified righteous anger against those forces. But especially in recent years this has resulted in a tendency for every social issue to be framed with a racist or sexist lens. The most outspoken purveyors of this framing are so sure of their analysis that their righteous anger has turned into self-righteous anger. Their quest to unite the disadvantaged through aggressive inclusion has actually backfired in division, an idea explored by the Guardian just last week.

My own sense of the perilousness of this approach has been growing slowly, but it crystallized in part while I was recently reading Tracy Kidder’s now-15-year-old book Mountains Beyond Mountains. While debating whether to write a full review of that work in the style of my previous book reviews, several editorials emerged which highlighted for me the most important takeaway: “identity politics” — which militantly reject debate and elevate tribalist and personal “truth” at the expense of individual liberty — at best waste time and at worst threaten the foundational principle of open debate in a free and progressive society.

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2016 Analysis Election Op-Ed Review Speculation

for center-left, big data more useful for finding racists than understanding elections

Vox is center-left opinion with well-documented conflicts of interest masquerading as objective analysis, but every now and again they have something resembling reporting. Such was actually the case — despite the explosive headline “Persuasive proof that America is full of racist and selfish people” — when they interviewed Seth Stephens-Davidowitz, a former Google data scientist and occasional New York Times contributor. In addition to backing up the assertion that anonymity fosters both nastiness and honesty, that article established an apparently strong correlation between the frequency of certain internet searches and broader trends in our polarized voter population around election day. I found the interesting big data analysis lurking behind the volatile headline to be most fascinating for supporting what I believe to be a general dysfunction of the mainstream progressive dialogue today and a major liability for Democrats.

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Analysis Music Review

2016 Music Review: Top 10 Albums, 20-song Playlist

I haven’t usually gotten these things out before the springtime, and for a number of reasons 2016 is more delayed than ever. But since ‘better late than never’ is usually well-applied — especially when this kind of analysis will serve future me with a (near-)real-time document of the day — and since 2016 was no 2015 but was also no slouch as far as new music goes, here again is my personal take on the best of the best of the last calendar year: general notes, the top ten albums, and a 20-track playlist of highlights. At least I beat the Summer Solstice on this one!

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Analysis Domestic Policy Review

digital privacy at risk under modern self-incrimination jurisprudence

Late last year I read some interesting reporting from BBC about privacy in the digital age. The case at issue involved the state of Florida compelling an alleged voyeur to reveal the lock code of his iPhone which had been seized with probable cause. The defendant refused, citing his Fifth Amendment privilege not to incriminate himself, but a Florida appeals court has ruled that the privilege could not have been invoked to block surrender of the code.

bbc stock footage never looked so corporate and scary.

That’s an interesting result by itself; though, as a state-level appeal, that decision only has controlling precedent (for now) in Florida. But the BBC reporting really caught my attention for revealing some of the rationale of the appeals court’s decision, authored by Judge Anthony Black, in the story’s second half:

Judge Black referred to a famous Supreme Court case, Doe v US 1988, in which Justice John Paul Stevens wrote that a defendant could be made to surrender a key to a strongbox containing incriminating documents but they could not “be compelled to reveal the combination to his wall safe”.

“We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination,” wrote Judge Black. “More importantly, we question the continuing viability of any distinction as technology advances.”

It happens that Justice Stevens was a favourite of mine before his retirement from the bench in 2010, and in fact this blog reviewed his 2014 book detailing his proposed constitutional amendments. I understood him to be a left-leaning civil libertarian, so it was surprising to hear an opinion of his cited to diminish the reach of one of the pillars of the Bill of Rights. I found the Doe opinion to be a quite interesting exercise in linguistic gymnastics, particularly, as Judge Black noted, amid the rapid advance of technology and the numerous and contentious questions about privacy that it has created. But beyond that, the case history led me down a 60-year-long rabbit hole of jurisprudence that I believe serves as a cautionary tale of how the Court can get it very wrong and the dramatic effects it can have on basic rights. With great care taken to exclude superfluous detail, I summarize that epic journey for you here.

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