Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

16 June 2012

Four Ayatollahs and a Decider

As we await with trepidation the Supreme Court’s decision on so-called “Obamacare,” it’s a good time to think about how our system really works. Who makes the ultimate decisions that shape our society? Are we really a “democracy” as we claim? Are the deciders rational?

Some day soon—perhaps Monday—the Court will announce whether 30 million people who don’t now have health insurance will get it, or whether they will be thrown back into health-care limbo. For those 30 million people, mostly poor and unemployed, few decisions could be more consequential.

Our nation has the most advanced medical technology in human history. The Court will decide, in effect, whether the 30 million will have to join a real insurance pool so that they can enjoy that technology, or whether they will suffer and die if they get sick or injured because they can’t afford the private admission fee.

This decision is a matter of life and death for millions. The President and Congress did the best they could to solve a long-festering problem of access to health care. No one thinks their solution is perfect. But it was and is the best our elected representatives could come up with—not just in the Obama Administration, but for the last century. The issue goes back precisely 100 years, to Teddy Roosevelt, not Franklin.

Unfortunately, our Court will not decide based on consequences. It will not decide based on empathy for the 30 million. The four ideological so-called “conservatives” and the decider [subscription required]—Justice Kennedy—will rule based on legal abstractions and abstract ideology.

Faced with a valid act of Congress, signed by the President, the Court can only reject the law for failing to comply with our Constitution. According to the Court’s so-called “conservative” majority, it will have to ask itself what our Founders, who wrote and ratified our Constitution, would have thought if they were alive today, but without any knowledge of modern times or intervening history.

That’s their criterion: so-called “original intent.” They care not what the Constitution means today, but what it meant in 1791, the year it was ratified. They seek a time warp in which the intervening two centuries never happened.

There were no CAT scans or MRIs in 1791. No one knew what DNA is. The acronym didn’t exist. There were probably only a handful of people on our whole continent who would even have understood that “deoxyribonucleic acid” is the name of an organic chemical.

A heart transplant is routine today. Then it would have been considered witchcraft. Anyone attempting one would probably have been burned at the stake, like the “witches” in the Salem witch trials.

But the good “conservative” justices want to transplant themselves back to that era to decide what we should do today. They want the dead hand of history to rule us now.

How, pray tell, does their rule differ from that of Iran’s Ayatollah Ali Khamenei, its Supreme Leader, who rules absolutely based on the language of the Qur’an, written over thirteen centuries ago?

The Qur’an is older than our Constitution, much older. But isn’t the principle the same? What abstract thinkers think their revered ancestors thought rules the present day. There’s not much attention paid to present circumstances or consequences. We look backward, though a glass darkly, to see “solutions” to our most dire current troubles.

The “wisdom” of the past beckons. But it lacks one essential thing: empathy for real people who may suffer and die in the present tense.

The good Ayatollah at least has the moral sense to recognize that the lust for nuclear weapons is “evil.” Can our four Supreme Court ideologues recognize the same about letting poor people suffer and die in a society that could easily save them?

Mohammed had no nuclear weapons. Even as a prophet, he probably could not have grasped their diabolical destructive power. Likely he would have instinctively agreed with the Ayatollah that their use would be the ultimate evil.

But who really knows? In each case, all we have are a dry legacy of words on paper, centuries old.

We ought to draw from those words basic moral lessons and reason from there. But the so-called “conservative” majority on our Court won’t go back to the underlying morals—the ethos of a new society settling in a wilderness and trying to take the old world’s best and leave the worst behind. Instead, they just want to trust just the old words, the bare abstractions. In so doing, they basically arrogate to themselves the power to make it all up.

History repeats itself. The same thing happened nearly a century ago, eighty-three years ago, to be precise.

Then, there was another financial catastrophe. Then, the finance sector caused that one, too. The mechanism was much simpler than today’s derivatives, but its impetus was much the same. Buying securities on margin was supposed to add more joy to a party that would never end. But the party did end, with suddenly bankrupt people jumping out of Manhattan skyscrapers to their deaths. The Crash of 1929 began the greatest financial catastrophe, so far, in human history.

When FDR tried to play the practical politician and make things better, who held him back? The Supreme Court, of course. The same sort of so-called “conservatives” existed then. Roosevelt called them the “nine old men.” (There were no women on the Court in those days.) For several years, they found all sorts of abstract reasons to strike down the laws that he proposed and that a worried Congress duly enacted.

Roosevelt resolved to “pack” the Court—increase its membership with new appointees and change its direction. Congress had, and still has, the power to do that.

But Congress balked. No one wanted to disturb the mystery of history, or to take responsibility for deciding what the Founders would think if they had grown up and had been educated then, rather than in the eighteenth century. So FDR backed down, and his program of national renewal had to wait several years to begin. Law schools now teach those old cases as bad law, examples of what happens when so-called “jurists” become political.

Will it be just so with President Obama? As we await the Court’s current big decision with fear and trembling, we have two awful precedents to digest. Both are, of course, rulings by the Court’s so-called “conservative” majority.

One held that cities and states cannot legally control deadly small arms within their borders. Ultimately they must ask the Court to shape the limits of their power to control armed violence. And while they wait years for a decision, real people—including a congresswoman—suffer or die from needless gun violence, at the hands of deranged or criminal gunmen. (Why are the perpetrators always men?)

The second decision—Citizens United—held that corporations are “persons,” and that money is speech. So corporate managers and rich people can use their wealth to propagandize the American people to do their bidding. Goebbels waxes green with envy, rather than mold, in his grave.

To say that these decisions undermined American democracy would be an understatement of Obamanian proportions. But the so-called “conservative” members of the Court profess to uphold sacred historic values, known only to themselves.

Like the good Ayatollah, they live in their heads, not on the ground. Live people and their current cares mean nothing compared to their divine abstractions. Facts themselves don’t matter unless they fit the theory.

Scientists would flinch. But that’s the way things are.

So Justice Kennedy must wrestle with his abstract ghosts. “Liberty,” the news says [subscription required], is his obsession. But is it the “liberty” of free riders to shun insurance to save a few bucks and later burden taxpayers with their care if they get sick or injured? Or is it the “liberty” of 30 million ordinary people to participate in the medical-technological revolution that our society has wrought at great expense, and therefore to be free from fear?

Only Justice Kennedy knows. Because the Court is otherwise deeply divided by abstract ideology, he alone will decide. He alone may have the strength to consider real people and real consequences.

Is that democracy? A single man—appointed, not elected—deciding matters of life and death for 30 million people, based on his personal notions of “liberty”? And we belittle the Ayatollah!

If the concept of “judicial restraint” means anything to Justice Kennedy, he should let this one go by. To set his own idea of “liberty” above the admittedly imperfect result of a century of political striving would be the height of hubris. We will soon see whether this man has a trace of the humility that marks great jurists.

As for contempt for the poor and underserved, we’ve seen it all before. Their “betters” condemned the street beggars in Dickensian England for laziness, lack of education, bad manners, and unfortunate birth. So today the so-called “conservatives” condemn the poor, unemployed, and recently fired as responsible for their own suffering. The more things change, the more they stay the same.

But our species’ dirty little secret is to the contrary: cooperation and social cohesion. We can’t accomplish much on our own, as individuals. Together, we can fly the globe, reach the Moon, build nuclear and renewable power stations, and make nuclear weapons to destroy each other and our planet.

Without each other—without cooperation and cohesion—we are nothing. But there can be no effective cooperation without empathy. Hitler and Stalin tried to force cooperation. They seem to have failed.

So as we look to the future, we should look to leaders who have empathy. Who has more, the President or the Supreme Court’s so-called “conservative” majority? the President or Mitt Romney? The Ayathollah or the street demonstrators in the Arab Spring? Upon the answers to these questions, the future of our nation and perhaps our species will depend.

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  • At Thu Jun 28, 09:34:00 PM EDT, Anonymous Anonymous said…

    Did even Dr. Jay miss this one?

    The majority opinion in the health care case points up the inadequacy of the political clichés used in the heat of an election year to describe the Supreme Court. Phrases like “strict constructionist” and “not making law from the bench” do not clarify complex Supreme Court opinions like Thursday’s ruling. Romney’s campaign website declares, “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito.” There’s only one problem with this formulation: Roberts went in one direction and Scalia, Thomas and Alito went in the opposite on the constitutionality of the health care bill.

    Obama’s own ability at prophecy is limited, as well. In 2005, the former constitutional law professor declared in a Senate address that he was opposing Roberts’ nomination to the Supreme Court because “I ultimately have to give more weight to his deeds and overarching political philosophy … than to the assuring words he provided me in our meeting.”

    All well that ends well, I guess....RH

  • At Thu Jun 28, 10:50:00 PM EDT, Anonymous Maqx said…

    Wow, who would have thought it would end up turning by the hand of Chief Justice Roberts? (Actually, Politico did)

    Eagerly waiting your take on todays action!

    As for your Bloomberg news recommendation, today I was having cognitive dissonance looking at CNN and Bloomberg. Bloomberg got it right. Fox? 'nuff said. See ya to CNN as well.

  • At Sun Jul 01, 11:25:00 PM EDT, Blogger Jay Dratler, Jr., Ph.D., J.D. said…

    Dear RH,

    No, I didn’t “miss this one.” Look at the date of the post: June 16. As I’ve said before, I'm not clairvoyant. Never claimed to be.

    As for the substance, my post today covers it. Like everybody else, I was surprised that Chief Justice Roberts turned out to be the law’s savior.

    But maybe I wasn’t so surprised as most. As I wrote today, I saw a spark in the man, during his hearings, that set him apart from transparent ideologues like Scalia.

    He’s young and still in the process of maturing as Chief Justice, so it’s far too early to tell. But he might, just might, grow into the job as so many others have done. If he does, he might become the defender of timeless constitutional values and abandon the ideology of his party and the friends who got him appointed.

    If that happens, it won’t be the first time. Some of the best and wisest justices were appointed by conservative presidents who expected them to toe the party line like good pols. But justices are not pols, or at least they aren’t supposed to be. Eventually, the appointers were just as surprised as all of us were at last week’s decision.



  • At Sun Jul 01, 11:38:00 PM EDT, Blogger Jay Dratler, Jr., Ph.D., J.D. said…

    Dear Maqx,

    Yes, the result and the Court’s lineup were exciting and surprising. But the most important thing is Chief Justice Roberts’ maturation as such. I have high hopes that he will prove to be a moderating influence in this age of true believers.

    It’s hard to know which side struck the first blow. But the Supreme Court, which is supposed to be above ideology, has become deeply split upon ideological lines. The fault lines appear in opinions that read like briefs, excessive length (as the justices try to justify themselves and refute their “opposition”), and far too many explicit references to policy, like Justice Scalia’s opening line, quoted late in my post of today.

    Part of the problem is that some justices, including Kennedy, are too damn old. They ought to have the grace to retire.

    If the Court becomes just another political body—unelected at that!—it will lose respect and eventually power. I hope and trust that Roberts is aware of that risk and using his considerable intellect and political skill to restore the Court’s role as neutral arbiter. That’s a task worthy of a lifetime’s dedication.

    As for the media, I’m preparing a new post on them, which I hope to publish in a few days.




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