Saturday, July 1, 2017

The travel ban and the Supreme Court

The lower courts have been brutal in their assessments of Trump's "travel ban," but that doesn't mean the Supremes will be, and they did partially lift the injunction.  So, will the Supreme Court really let this redlining stand?  As I have hinted before, this is a harder question than you might think.

A reminder about that term I keep using:  the "attitudinal model."  According to this model, judges are normal, political ideologues who couch their political beliefs in a bunch of jargonistic, pseudo-intellectual bullshit about "philosophies of constitutional interpretation."  Three big ones, two of which are lumped together more often than they should be:  strict constructionism, original intent, and living document.

Strict constructionism means following the letter of the law.  Break out the old Oxford English Dictionary, look up the meanings of the words when they were written, and go by that.  Problem:  the Constitution is often vague and badly worded.

Original intent means following the spirit of the law, and is often lumped together with strict constructionism under the general banner of "originalism," even though the letter of the law and the spirit of the law can often conflict.  Problem:  are you a mind-reader?  Can you read dead peoples' minds?  How about when passages were negotiated by multiple people, now dead, who had different things in mind?  See the problem?  This, too, is a bunch of fuckin' bullshit.

Treating the Constitution as a living document means allowing it to change with the times and culture, so basically, it means whatever the fuck you want it to mean because who the fuck determines what is a culturally appropriate reading of the Constitution at any given point in time? Anthropologists?  Clifford Motherfuckin' Geertz?!  (Zing!  But only to those whose readings are really obscure...)

Anyway, that's a quick summary of why the field of constitutional law doesn't impress me.  None of the major philosophies of constitutional interpretation strike me as even remotely coherent.  But you know what these people read before they get to law school?  Basic political, ideological types of stuff.  So, political ideology necessarily, temporally precedes whatever legal philosophies judges may or may not have.

That said, Supreme Court Justices don't always act like straight-down-the-line liberals and conservatives.  Scalia pissed off conservatives by upholding flag burning and Fourth Amendment rights, for example.  Roberts upheld Obamacare.  This kind of thing happens.  Of course, very few people are straight-down-the-line liberals or conservatives either.  One of the key lessons from the most important piece of scholarship ever written on public opinion-- "The Nature of Belief Systems in Mass Publics," by Philip Converse-- is that most people mix and match liberal and conservative beliefs across issues.  Even at the elite level, remember Harry Reid?  Former Democratic leader in the Senate?  Pro-life.  People can be idiosyncratic.  Maybe judges are just a little more idiosyncratic than others.  Maybe it's those stupid, fuckin' robes...

Regardless of why, we can't always predict what the Supreme Court will do.  So, consider:

1)  I've seen a bunch of commentaries about how lower court rulings can trap the SCOTUS by repeatedly applying Giuliani's words, Trump's rhetoric, etc., to try to force the Supremes to use Trump's clear intent against him.  Trump's intent was clear, but SCOTUS can do whatever the fuck they want.  Why?  Who's gonna stop them?  One of the "philosophical" questions among legal theorists (i.e. bullshit wanker issues with which law professors perform a giant circle jerk) is the question of deference to precedent, but the Supreme Court has no need to defer to anyone.  Supreme.  Top of the heap.  And frankly, if you think a decision is wrong, I'm gonna side with Scalia on this-- overturn it.  Otherwise, you lack the courage of your convictions.  Legal theorists and their damned circle jerks...

2)  Plagiarist-Gorsuch is a plagiarist.  Come on-- it's his name!  He's a fucking liar too.  Plagiarists, by definition, are liars.  At some point during the vetting procedure, somebody asked some level of coded question to Gorsuch about Trump's policies, attempting to gauge how he would deal with stuff like the "travel ban."  Absolute guarantee.  Think of the Comey dinner.  Do you seriously think Trump would appoint someone to the Supreme Court without some assurance of how that guy would rule on his policies?  Add to that the plagiarism stuff, and there's a deal.  Trump demands loyalty, and Gorsuch is a fucking plagiarist piece of shit.  How coded or subtle was it?  Probably pretty subtle.  That's the kind of thing you have to do very carefully, but anyone who thinks there is the slightest chance of Plagiarist-Gorsuch ruling against Trump on the "travel ban" is a fool.

OK, so what about the rest?  Trump needs four more.  Thomas is, to his core, a social conservative.  Does he sometimes surprise people?  Sure!  He just did on a redistricting case!  Nevertheless, this is more core to social conservatism, so I'd bet more heavily on Thomas's vote here.  Alito, same deal.  That puts things on Roberts and Kennedy.

And you don't know what either of those two will do.  At this point, I will remind you of the weirdness of John Roberts and Obamacare.  When everyone was watching Kennedy, Roberts saved Obamacare.  (At least for a little while-- we'll see what happens now...).  The question was over the "individual mandate."  The policy was written as a tax.  In order to make the system work, you need healthy people to buy insurance, or the insurance companies can't afford to cover the sick people.  The problem is that the Constitution gives Congress the power to regulate interstate commerce, but seriously, does that really give Congress the power to force people to buy insurance if they don't want to?  That's kind of a stretch, and everyone knew it at the time.  So, instead of writing the law to say, "you go to jail if you don't buy insurance," Congress wrote a law that says, "you pay a higher tax rate if you don't buy insurance," the same way you pay a higher tax rate if you don't have kids, don't buy a house, don't give to charity, etc.  That way, it was covered under Congress's Article I power to tax, as amended to cover income taxes.  No muss, no fuss.

Except that Obama is a fucking liar.  Yes, liberals, Obama is a fucking liar.  He told everyone that he wouldn't raise any middle class taxes, but the "mandate" was actually a tax, and if you didn't buy insurance, he was raising your fucking taxes.  And he didn't want to admit that.  So, he didn't admit that it was a tax.  Democrats don't like admitting when they raise taxes.  It goes back to that Mondale thing.

So, the Democrats refused to call it a tax.  They called it a mandate, and told everyone, "no it's not a tax."  Opportunistic and dishonest conservatives responded by saying, "hey, if it's not a tax, it's not covered under Article I as tax policy, and I call bullshit on interstate commerce, so this is unconstitutional!"  And the thing is, if it hadn't been a tax... they would have had a really strong argument.  But, since Democrats weren't defending it as a tax, it went to the Supreme Court with defenders of Obamacare making a really constitutionally weak argument for the sake of political expediency.

And then came John Roberts.  Roberts decided to save Obamacare by ruling that the mandate was a tax.  But here's the problem.  There's a restriction that says the courts can't rule on tax policy before a tax goes into effect, and the mandate hadn't gone into effect yet.  It's called "anti-injunction."  So, here's the bullshit that Roberts pulled.  He ruled that the mandate was not a tax, for the purposes of anti-injunction, thereby allowing the Supreme Court to rule on the constitutionality of the policy, but as soon as it was observed as being not a tax for the purposes of anti-injunction, it became a tax, thereby defensible under Congress's Article I powers and the 16th Amendment.  It isn't a tax until you observe it as being not a tax, at which point it becomes a tax.  It's Schrodinger's tax!

That's some fancy legal footwork there, Johnny-boy!  And he did it to side with the liberals!  Nobody saw that coming.  Was that political ideology?  Nope.  Roberts is, if anything, a conservative.  Was there a coherent legal philosophy there?  Nope.  Did it reflect anything from the lower courts?  Nope.  I tell this story a lot to demonstrate the intrinsic unpredictability of some justices.  Roberts really could side with Trump.  So could Kennedy.  Or maybe not.

We have no clue what they are going to do with the "travel ban."  We know that they lifted part of the injunction.  What does that mean?  Don't try to read the tea leaves.  We can be pretty confident of how Plagiarist-Gorsuch will vote.  After that, it starts getting really sketchy.  Supreme Court justices can get really weird.

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