Tuesday, September 29, 2009

Generals: Dick Cheney, Liz Cheney Are Scaremongering

Original Link: http://www.politico.com/news/stories/0909/27705.html


About a dozen retired generals and admirals, trying to add momentum to President Barack Obama’s effort to close the Guantanamo Bay military prison, are accusing former Vice President Dick Cheney and his daughter Liz of scaremongering about the dangers of closing it.

“It’s up to all of us to say these arguments advanced by Cheney and his acolytes are nonsense and that really what they’re doing is undermining our national security by delaying the date at which Guantanamo is closed,” retired Brig. Gen. James Cullen, a former chief judge of the Army’s Court of Criminal Appeals, told POLITICO Tuesday.

“Some of the fear issues that are being raised in this are really unfortunate. It gets people excited about things they shouldn’t be excited about and impedes doing what is critical to this country. Get that damn symbol off the table,” said retired Gen. David Maddox, a former Army commander-in-chief for Europe. “We take a setback every time somebody, whether it’s the vice president or his daughter comes out and says the things that they say….We have to get out there again and just keep pounding.”

The former vice president and his daughter declined comment on the criticism.

The former military officers, whose Washington visit was organized by Human Rights First, argued rather bitterly that the Cheneys have exaggerated the risks of bringing Guantanamo prisoners from Cuba to the United States.

“Can you imagine getting a terrorist from Guantanamo convicted and put in a federal penitentiary in your town?” Maddox asked. “Have you ever checked who the hell’s in there already? Have any of them gotten out? The person who we’re putting in is probably a heck of lot less dangerous than most of them who are already in there.”

Administration officials recently acknowledged that Guantanamo may not be closed by Obama’s deadline of Jan. 22. But retired Army Maj. Gen. Tony Taguba, who investigated the Abu Ghraib prison scandal in Iraq, said the president was smart to set a mark.

“It forces us to have an end state,” Taguba said. “It cannot be open in perpetuity because we’re having this so called long war against terrorism.”

The retired officers met Monday with Attorney General Eric Holder and planned to confer later with Deputy Secretary of Defense William Lynn.

Holder gave no indication of when the administration might settle on a U.S. site to relocate Guantanamo prisoners, the former military leaders said.

Obama announced the one-year-closure plan on his second full day in office. But the administration lost control of the legislative process in April when the Senate voted 90-6 against funding for the closure. Democrats joined Republicans, who argued that it was a foolish risk to bring suspected terrorists into the United States.

“Closing Guantanamo is of a strategic value,” Taguba said. “Seeing people in orange jumpsuits and whatever have you creates such an excitement for people to be jihadists and terrorists…It’s not helping us.”

Monday, September 28, 2009

Canada Outranks U.S. in Healthcare Report Card

Original Link: http://abcnews.go.com/Health/wireStory?id=8693782

By Andrea Hopkins

Canada outperforms the United States in health outcomes but is well behind global leaders like Japan in overall health of its population, a Canadian report released on Monday showed.

The annual report card by the Conference Board of Canada ranked Canada 10th out of 16 developed countries, with a "B" grade. The United States was the worst performer, placing 16th and earning a "D" grade.

"Canada has been at the center of much of the debate on U.S. health care reform. Since Canada ranks ahead of the United States on all but one indicator of health status ... it is clear that we are getting better results," Gabriela Prada, director of health policy at the Conference Board, said in a statement.

"But when we look beyond the narrow Canada-U.S. comparison to the rest of the world, Canadians rank in the middle of the pack in terms of their health status," Prada said.

Most of the data on which the report card was based is from 2006, the group said.

President Barack Obama has pledged to reform the country's healthcare system, which is expensive and leaves millions of Americans without coverage. Canada, with its single-payer government-run system, is often held out as an example to be praised or derided by U.S. critics.

The Conference Board, which has been issuing the report card since 1996, ranked the 16 countries according to 11 criteria, including life expectancy, mortality due to cancer, circulatory diseases, respiratory diseases, metal disorders, as well as infant mortality and self-reported health status.

Japan was once again the top-ranking country. Switzerland, Italy, and Norway also earned "A" grades.

"B" grades were given to Sweden, France, Finland, Germany, Australia and Canada, while Netherlands, Austria and Ireland earned a "C" grade, the report showed.

Along with the United States, Denmark and the United Kingdom got "D" grades.

Canada and the United States both earned "A" grades on self-reported health status, ranking first and second, respectively, among the 16 countries.

Canada ranked higher than the United States on all of the mortality measures except for mortality due to cancer, a criteria for which both countries earned a "B" grade.

The Conference Board said top-performing countries achieved better health outcomes on broad actions such as environmental stewardship and health promotion programs that focus on changes in lifestyle, along with education, early childhood development, and income to improve health outcomes.

Rank Country Grade

1 Japan A

2 Switzerland A

3 Italy A

4 Norway A

5 Sweden B

6 France B

7 Finland B

8 Germany B

9 Australia B

10 Canada B

11 Netherlands C

12 Austria C

13 Ireland C

14 United Kingdom D

15 Denmark D

16 United States D

Source: The Conference Board of Canada

Sunday, September 27, 2009

GOP to Blame if Health Care Bill Fails

Original Link: http://blogs.wsj.com/washwire/2009/09/22/wsjnbc-news-poll-gop-to-blame-if-health-care-bill-fails/

By Susan Davis

If a health care overhaul is not approved this year, a plurality of Americans said Republicans will be at fault, according to the latest Wall Street Journal/NBC News poll.

More than one in three Americans, 37%, said congressional Republicans will be “most to blame” if the bill fails.

That’s almost four times the 10% of respondents who said President Barack Obama will be to blame, and nearly three times the 16% of respondents who said congressional Democrats will be to blame. Nearly a quarter, 23%, said all three will be to blame.

The results may be a surprise considering Democrats control the White House and Congress and therefore are much more responsible for the fate of the health care bill.

GOP lawmakers to date have been nearly unanimous in their opposition to proposed legislation on Capitol Hill. The opposition to the Democrats’ bill has been particularly contentious in recent weeks as seen in August town hall meetings and South Carolina GOP Rep. Joe Wilson’s shout of “You lie!” to Obama during his congressional address on health care earlier this month. The poll was conducted Sept. 17-20.

Wednesday, September 23, 2009

The Activist Roberts Court

Original Link: http://blog.kiplinger.com/politics/2009/09/the-activist-roberts-court.html

By Mark Willen

It is now widely expected that the Supreme Court will overturn decades of legal precedent and congressional intent later this month and allow unlimited corporate spending to sway elections. If it does, it will remove any pretense that Chief Justice John Roberts and his conservative colleagues are anything short of "activists."

When many Republicans voted against Sonya Sotomayor's nomination to the high court, they cited concerns that she was an activist who would "legislate from the bench." Conservatives insisted judges should be strictly limited to interpreting the Constitution and the laws passed by Congress, not making new ones. But don't expect those conservative Republicans to object if the Court rules that limits on campaign spending by businesses and advocacy groups incorporated as businesses are a violation of the First Amendment's free speech guarantees.

At the hearing Sept. 9, Roberts and several of his conservative colleagues openly questioned Supreme Court rulings dating back more than 100 years, including the two most recent in 1990 and 2003. Never mind that Roberts, in his own confirmation hearings, spoke eloquently of the importance of precedence, saying that reversals of long-standing decisions can send a jolt through the legal system.

Not all Republicans favor overturning existing law. Sen. John McCain, the chief GOP sponsor of the McCain-Feingold law, told reporters after the hearing in Citizens United v. Federal Elections Commission that he was troubled by the "extreme naivete" of some of the justices about the role of special interest money in elections. In their questioning, the five conservative justices -- Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy -- showed near complete disdain for congressional intent in passing laws restricting corporate giving. Scalia has even suggested that Congress' intent is irrelevant since lawmakers are interested parties in the issue.

Supporters of the restrictions are still hoping the court will rule narrowly, deciding that the particular example before them -- a highly critical movie about Hillary Clinton -- is permissible because it's not the kind of speech intended to be covered by the law. But the conservative five showed no inclination to keep their ruling narrow.

The court's increasing willingness to reverse precedent has already put it on a collision course with Congress, which has moved to the left in the past few years just as the court has moved to the right. Expect many more confrontations in the years ahead.

Jeffrey Rosen, a liberal law professor at George Washington University, says the choice is really up to Roberts. In an op-ed piece in the New York Times earlier this month, he gave Roberts a mixed grade in his stated goal of fashioning more consensus on the court. Rosen noted that Roberts had expressed a desire to emulate the modesty and unanimity of the great Chief Justice John Marshall, and warned that if he uses the campaign finance case to push through a sweeping decision on a narrow 5-4 vote, he risks being remembered instead as the conservative version of Earl Warren. It's a warning that Roberts ought to take seriously.

Tuesday, September 22, 2009

GOP Plan: If Uninsured Die Fast Enough, They Won't Need Coverage

Original Link: http://www.huffingtonpost.com/andy-borowitz/gop-plan-if-uninsured-die_b_292076.html

By Andy Borowitz

Congressional Republicans offered an alternative to President Obama's health care plan today as they unveiled their own proposal which would ask uninsured Americans to die faster and therefore not require coverage.

"A new study shows that the uninsured die faster than the insured," Rep. John Boehner (R-OH) told reporters in Washington. "Our plan calls for them to die even faster."

Rep. Boehner said that the sooner the uninsured die, "the sooner they will be relieved of the stress and anxiety caused by not having health coverage."

The House Minority Leader said that the G.O.P. plan would over massive tax cuts to uninsured Americans who die "in a timely fashion."

"If these Americans do the patriotic thing and die before they make it to the emergency room, the least we can do is reward them with a tax cut," he said.

Sunday, September 20, 2009

Will the Corporate Supremes Now Dance on Democracy's Corpse?

Original Link: http://www.huffingtonpost.com/harvey-wasserman/will-the-corporate-suprem_b_285316.html

By Harvey Wasserman

The Four Courtsmen of the Apocalypse are poised to finally bury American democracy in corporate money. The most powerful institution in human history -- the global corporation -- may soon take definitive possession of our electoral process.

It could happen very soon.

While America agonizes over health care, energy and war, Justices John Roberts, Antonin Scalia, Sam Alito and Clarence Thomas could make it all moot. They may now have the fifth Supreme Court vote they need to open the final floodgates on corporate spending in political campaigns.

In short, the Court may be poised to shred a century of judicial and legislative attempts to preserve even a semblance of restraint on how Big Money buys laws and legal decisions. The ensuing tsunami of corporate cash could turn every election hence into a series of virtual slave auctions, with victory guaranteed only to those candidates who most effectively grovel at the feet of the best-heeled lobbyists.

Not that this is so different from what we have now. The barriers against cash dominating our elections have already proven amazingly ineffective.

But a century ago, corporations were barred from directly contributing to political campaigns. The courts have upheld many of the key requirements.

Meanwhile the barons of Big Money have metastasized into all-powerful electoral juggernauts. The sum total of all these laws, right up to the recently riddled McCain-Feingold mandates, has been to force the corporations to hire a few extra lawyers, accountants and talk show bloviators to run interference for them.

Even that may be too much for the Court's corporate core. John Roberts's Supremes may now be fast-tracking a decision on Citizens United v. Federal Election Commission, centered on a corporate-financed campaign film attacking Hillary Clinton. According to the Washington Post's account of oral arguments, "a majority of the court seemed impatient with an increasingly complicated federal scheme intended to curb the role of corporations, unions and special interest groups in elections."

Former solicitor general Theodore B. Olson, who in 2000 "persuaded" the Court to stop a recount of votes in Florida and put George W. Bush in the White House, said such laws "smothered" the First Amendment and "criminalized" free speech.

The conservative Gang of Four has already been joined by Anthony Kennedy, the Court's swing voter, in signaling the likely overturn of two previous decisions upholding laws that ban direct corporate spending in elections.

When he was confirmed as the Court's Chief, Roberts promised Congress he would be loathe to overturn major legal precedents. But the signals of betrayal now seem so clear that Senators John McCain and Russell Feingold have issued personal statements warning Roberts that a radical assault on campaign finance laws would be considered a breach of faith with the Congress that confirmed him.

Liberal Justice Ruth Bader Ginsburg did assert during oral arguments that "a corporation, after all, is not endowed by its creator with inalienable rights."

But since the 1880s the courts have generally granted corporations human rights with no human responsibilities. Thom Hartmann (Unequal Protection) and Ted Nace (Gangs of America) have shown with infuriating detail how corporate lawyers twisted the 14th Amendment, designed to protect the rights of freed slaves, into a legal weapon used to bludgeon the democratic process into submission.

Civil libertarians like Floyd Abrams and the American Civil Liberties Union have somehow argued that depriving these mega-conglomerations of cash and greed their "right" to buy elections might somehow impinge on the First Amendment.

But the contradiction between human rights and corporate power is at the core of the cancer now killing our democracy. As early as 1815 Thomas Jefferson joined Tom Paine in warning against the power of "the moneyed aristocracy." In 1863 sometime railroad lawyer Abraham Lincoln compared the evils of corporate power with those of slavery. By the late 1870s Rutherford B. Hayes, himself the beneficiary of a stolen election, mourned a government "of, by and for the corporations."

The original US corporations -- there were six at the time of the Revolution -- were chartered by the states, and restricted as to what kinds of business they might do and where. After the Civil War, those restrictions were erased. As Richard Grossman and the Project on Corporate Law & Democracy have shown, the elastic nature of the corporate charter has birthed a mutant institution whose unrestrained money and power has transformed the planet.

Simply put, globalized corporations, operating solely for profit, have become the most dominant institutions in human history, transcending ancient emperors, feudal lords, monarchs, dictators and even the church in their wealth, reach and ability to dominate all avenues of economic and cultural life.

The Roberts Court now seems intent on disposing of the feeble, flimsy McCain-Feingold campaign finance law as well as the 1990 Austin decision that upheld a state law barring corporations from spending to defeat a specific candidate.

Scalia, Kennedy and Thomas all voted to overturn McCain-Feingold in 2003, and nobody doubts Roberts and Alito will join them now. The only question seems centered on how broad the erasure will be. This, after all, is a "conservative" wing whose intellectual leader, Antonin Scalia, recently argued that wrongly convicted citizens can be put to death even if new evidence confirms their innocence.

Should our worst fears be realized, the torrent of cash into the electoral process could sweep all else before it. With five corporations controlling the major media and all members of the courts, Congress and the Executive at the mercy of corporate largess, who will heed the people?

"We don't put our First Amendment rights in the hands of Federal Election Commission bureaucrats," said Roberts said in the oral arguments.

Instead he may put all our rights in the hands of a board room barony whose global reach and financial dominance are without precedent.

At this point, only an irreversible ban on ALL private campaign money -- corporate or otherwise -- might save the ability of our common citizenry to be heard. Those small pockets where public financing and enforceable restrictions have been tried do work.

A rewrite of all corporate charters must ban political activity and demand strict accountability for what they do to their workers, the natural environment and the common good.

It was the property of the world's first global corporation---the East India Tea Company---that our revolutionary ancestors pitched into Boston Harbor. Without a revolution to now obliterate corporate personhood and the "right" to buy elections, we might just as well throw in the illusion of a free government.

This imminent, much-feared Court decision on campaign finance is likely to make the issue of corporate money versus real democracy as clear as it's ever been.

Likewise the consequences.

Corporate Corruption Killing America

Original Link: http://www.nolanchart.com/article6877.html

By Joel S. Hirschhorn

Anyone smart and strong enough to fight delusional thinking and who pays attention to current events should clearly see that corporate corruption of the US political system is so pervasive and powerful that there will be no genuine reform of both the health care and financial sectors.

I always believed that President Obama was just a different color corrupt politician who was subservient to the two-party plutocracy. His so-called reform efforts and ludicrous federal deficit spending should disappoint all his non-delusional supporters.

For health reform the only genuine and sensible reform legislation should have been not much more than a single sentence mandating that every American has a right to full Medicare coverage. Period. End of story. True reform. True universal health insurance.

Let the health insurance industry sell their garbage to those choosing it over Medicare and as supplemental insurance, as is done today, to cover what Medicare does not. The one major reason why the US spends more of its wealth on health care than any other nation, but with lousy results for the population as a whole is that so many Americans and their employers buy costly private health insurance. Some things essential for human survival require government programs, like police and fire protection. The overwhelming opinion of those in Medicare is very positive. In fact it is far more positive than those using private health insurance.

But the health insurance industry and others have successfully corrupted Congress and brainwashed much of the population to fear true reforms. Sure, Congress will pass some legislation that Obama will sign and they all will claim victory. But the nation will not get true reforms and health care spending will continue to rise and bankrupt the nation.

And now we also are learning slowly that the financial sector that tanked our economy by pursuing enormously risky but profitable business practices and then was bailed out by the government has not learned any lessons. Banks and all kinds of financial companies are still pursuing risky businesses, still overpaying their top executives and still screwing consumers. Congress is unlikely to pass really tough regulations to put a halt to all the awful practices by financial companies. Why? Because Congress has been corrupted by money from this financial sector.

Make no mistake: Corporate corruption is a true bipartisan effort, perhaps the most bipartisan enterprise.

Obama is no more of a real reformer than any Republican. That so many on the far right think he is a socialist is laughable. He is nothing more than a defender of the corporate-owned two-party plutocracy. To see anything else is pure delusion. The US is being flushed away. A populist Second American Revolution is the only way to save the nation. It will not come from the efforts of anyone that is a Democrat or Republican.

Wake up America! Voting for Democrats or Republicans just perpetuates this corrupt system. They fiddled while Rome burned; we borrow while America sinks.

When Getting Beaten By Your Husband Is A Pre-Existing Condition

Original Link: http://www.huffingtonpost.com/2009/09/14/when-getting-beaten-by-yo_n_286029.html

By Ryan Grim

With the White House zeroing in on the insurance-industry practice of discriminating against clients based on pre-existing conditions, administration allies are calling attention to how broadly insurers interpret the term to maximize profits.

It turns out that in eight states, plus the District of Columbia, getting beaten up by your spouse is a pre-existing condition.

Under the cold logic of the insurance industry, it makes perfect sense: If you are in a marriage with someone who has beaten you in the past, you're more likely to get beaten again than the average person and are therefore more expensive to insure.

In human terms, it's a second punishment for a victim of domestic violence.

In 2006, Democrats tried to end the practice. An amendment introduced by Sen. Patty Murray (D-Wash.), now a member of leadership, split the Health Education Labor & Pensions Committee 10-10. The tie meant that the measure failed.

All ten no votes were Republicans, including Sen. Mike Enzi (R-Wyoming), a member of the "Gang of Six" on the Finance Committee who are hashing out a bipartisan bill. A spokesman for Enzi didn't immediately return a call from Huffington Post.

At the time, Enzi defended his vote by saying that such regulations could increase the price of insurance and make it out of reach for more people. "If you have no insurance, it doesn't matter what services are mandated by the state," he said, according to a CQ Today item from March 15th, 2006.

Robert Zirkelbach, a spokesman for an insurance industry trade group, America's Health Insurance Plans (AHIP), said that the National Association of Insurance Commissioners (NAIC) has proposed ending the discrimination. "The NAIC has a model on this that we strongly supported. That model bans the use of a person's status as a victim of domestic violence in making a decision on coverage," he said.

During the last health care reform push, in 1993 and 1994, the industry similarly promised to end discrimination against people with pre-existing conditions.

Murray pushed to include the domestic violence concern in this year's comprehensive health care bill. "Senator Murray continues to believe that victims of domestic violence should not be punished for the crimes of their abusers. That is why she worked to include language in the Senate HELP Committee's health insurance reform bill that would ban this discriminatory and harmful insurance company practice," said spokesman Eli Zupnick.

In 1994, then-Rep. Charles Schumer (D-N.Y.), now a member of Senate leadership, had his staff survey 16 insurance companies. He found that eight would not write health, life or disability policies for women who have been abused. In 1995, the Boston Globe found that Nationwide, Allstate, State Farm, Aetna, Metropolitan Life, The Equitable Companies, First Colony Life, The Prudential and the Principal Financial Group had all either canceled or denied coverage to women who'd been beaten.

The Service Employees International Union asked members to write letters to Congress regarding the exclusion and have quickly generated hundreds, says an SEIU spokeswoman.

The relevant provision:


'(a) IN GENERAL.--A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan or coverage based on any of the following health status-related factors in relation to the individual or a dependent of the individual:

(1) Health status.

(2) Medical condition (including both physical and mental illnesses).

(3) Claims experience.

(4) Receipt of health care.

(5) Medical history.

(6) Genetic information.

(7) Evidence of insurability (including conditions arising out of acts of domestic violence).

(8) Disability.

(9) Any other health status-related factor determined appropriate by the Secretary.

UPDATE: The eight states that still allow it are Idaho, Mississippi, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota and Wyoming, according to a report by the National Women's Law Center.

UPDATE II: Scratch the Tar Heal state from that list. North Carolina insurance commissioner Wayne Goodwin had his staff research the state's law and his attorneys concluded that insurers in that state would not be allowed to use domestic violence as a pre-existing condition. Group plans were specifically forbidden from using it thanks to a 1997 law, he said. For individuals and non-group plans, it's more complicated.

"Though there is not a specific statute for individual plans or non-group plans, there is another statute that our attorneys here tell us addresses this issue. For example, North Carolina law defines what a preexisting condition is. Now, here in North Carolina, it says a preexisting condition means - quote - those conditions for which medical advice, diagnosis, care or treatment was received or recommended within a one year period immediately preceding the effective date of the person's coverage." Domestic violence, he said, doesn't met the state's definition of a medical condition and so can't be used as a pre-existing condition.

Wyoming Department of Insurance staff attorney James Mitchell said the state's insurance laws do not ban insurers from using domestic violence as a pre-existing condition, but his staffers were unable to find cases of insurers having done so and he said they had not received any complaints. "We are not aware of any policies that have been submitted to us that addressed domestic violence as a pre-existing condition," he said. The remaining six states have yet to respond.

UPDATE TO UPDATE II: A few readers have noted that the ambiguity of North Carolina's law regarding individual and non-group plans could still leave domestic violence victims vulnerable to discrimination. And Commissioner Goodwin himself, in a Facebook note summarizing my conversation with him, does say "that North Carolina's law on this subject vis-a-vis individual/non-group plans could be clarified and made more direct, and that we should also consider the NAIC national model law on the subject, too. The legislature doesn't return until May 2010, so there is time to work on the best way to clarify this issue for folks while educating them in the meanwhile."

He posted his response on the FB page of journalist Christine Tatum, who had posted a link to this story and asked her friends to contact him. Goodwin noted on her wall that allowing insurance companies to discriminate against domestic violence victims is a tragedy and something he wouldn't allow in his state.

North Carolina, however, given the fuzziness of the law, still belongs on a list of states whose laws could be clarified to assure that domestic violence victims aren't denied coverage or charged higher premiums. Forty-two states have made that specific clarification and the Senate health committee bill would do so nationally.

If you're an attorney with experience in this field and want to weigh in, write me at ryan@huffingtonpost.com.

UPDATE III: Mississippi Insurance Commissioner Mike Chaney provided the following statement through a spokeswoman:

Mississippi does not at this time have a law which bans insurance companies from considering domestic violence as a pre-existing condition. However, the reason there is not such a law is that there has not been a problem with insurance companies denying coverage or refusing to pay the claims of domestic violence victims in this state. If it were an issue, the Legislature and the Department would have addressed it by now.

The Mississippi Department of Insurance is unaware of any insurance company operating in this state that would deny coverage if the applicant had been a victim of domestic violence. Nor have we received any complaint from a consumer stating their insurance company refused to pay their medical bills incurred from domestic violence. Such action by an insurance company would not be tolerated by the Department.

It is the position of the Department that if an insurance company denied payment of a claim incurred in an act of domestic violence, such action would be a violation of the Unfair Trade Practices Act, as promulgated in Miss. Code Ann. §§ 83-5-29 through 83-5-51, and the Department would take the appropriate action.

Should the Mississippi Legislature choose to enact legislation addressing this issue, the Mississippi Insurance Department would be very supportive of the passage of such legislation.

UPDATE TO UPDATE III: Mississippi Insurance Commissioner Mike Chaney was much blunter in an interview with the Jackson Free Press:

"The truth is we've got eight states in the union that count domestic abuse as a pre-existing condition, and Mississippi is one of them," Chaney told the Jackson Free Press. "I've got to get some of my lawyers to do some research on this, but we have only six mandated (conditions that must be covered) in our state statues, and we have 25 or more optional coverages, but domestic abuse doesn't seem to be one of them."

Chaney said all insurance companies in the state can take advantage of the state's limited coverage mandate, and that he would prefer the state to change its law to force insurance companies to cover victims of domestic abuse.

"Would I do something about it? Hell, yeah, I'd do something about it, but I'm a regulator, not a legislator. I have to come to terms with that every week," Chaney said. "The whole situation is bad. Let's say a woman works with a company that had Blue Cross/Blue Shield, and she gets beat up in her house and Blue Cross says 'we're not covering you because getting beat up is your pre-existing condition.' That's terrible."

UPDATE IV: North Dakota Insurance Commissioner Adam Hamm, a former violent-crimes prosecutor, told the Huffington Post that he and Gov. John Hoeven (R) are working to change the standing policy in their state. "To put it mildly, Wayne and I are on the same page," he said, referring to the North Carolina insurance commissioner.

After a consumer alerted him Tuesday via e-mail, Hamm said, "Quite frankly, I was stunned and I couldn't believe it." His office then contacted Blue Cross-Blue Shield, Medica, John Alden and American Family, who together account for 98 percent of the state's health insurance policies, and none of the four companies treat domestic violence as a preexisting condition, he said. Nor has the state insurance department recorded any complaints of being denied care on those grounds.

"We have no record of any of that ever occurring in our state," Hamm said. "So we're obviously happy about that."

To keep it from happening in the future, the state insurance department will push legislation as soon as possible, Hamm said. Since the North Dakota legislature only meets every other year, he projected a 2011 vote.

In the meantime, Hamm said he wants to know why North Dakota never joined the 42 other states who passed bans years ago. Agents are combing legislative files going back to the mid-1990s to see if such a measure was ever introduced, he said.

UPDATE V: State Farm writes in to note that it has changed its policy since that 1995 Boston Globe story and no longer discriminates against victims of domestic violence.

A follow-up Globe item reported that "recent 'media attention,' and the company's own research, caused the company to revise its policy, [spokeswoman K.C.] Eynatten said. State Farm no longer 'rates or denies life or health insurance to battered women, even if there's a history of domestic violence.'

It went on: "'We realized our position was based on gut feelings, not hard numbers,' Eynatten said, explaining the change. 'And we became aware that we were part of the reason a woman and her children might not leave an abuser. They were afraid they'd lose their insurance. And we wanted no part of that.'"

Saturday, September 19, 2009

Study links 45,000 U.S. deaths to lack of insurance

Original Link: http://www.reuters.com/article/healthNews/idUSTRE58G6W520090917

By Susan Heavey

Nearly 45,000 people die in the United States each year -- one every 12 minutes -- in large part because they lack health insurance and can not get good care, Harvard Medical School researchers found in an analysis released on Thursday.

"We're losing more Americans every day because of inaction ... than drunk driving and homicide combined," Dr. David Himmelstein, a co-author of the study and an associate professor of medicine at Harvard, said in an interview with Reuters.

Overall, researchers said American adults age 64 and younger who lack health insurance have a 40 percent higher risk of death than those who have coverage.

The findings come amid a fierce debate over Democrats' efforts to reform the nation's $2.5 trillion U.S. healthcare industry by expanding coverage and reducing healthcare costs.

President Barack Obama's has made the overhaul a top domestic policy priority, but his plan has been besieged by critics and slowed by intense political battles in Congress, with the insurance and healthcare industries fighting some parts of the plan.

The Harvard study, funded by a federal research grant, was published in the online edition of the American Journal of Public Health. It was released by Physicians for a National Health Program, which favors government-backed or "single-payer" health insurance.

An similar study in 1993 found those without insurance had a 25 percent greater risk of death, according to the Harvard group. The Institute of Medicine later used that data in its 2002 estimate showing about 18,000 people a year died because they lacked coverage.

Part of the increased risk now is due to the growing ranks of the uninsured, Himmelstein said. Roughly 46.3 million people in the United States lacked coverage in 2008, the U.S. Census Bureau reported last week, up from 45.7 million in 2007.

Another factor is that there are fewer places for the uninsured to get good care. Public hospitals and clinics are shuttering or scaling back across the country in cities like New Orleans, Detroit and others, he said.

Study co-author Dr. Steffie Woolhandler said the findings show that without proper care, uninsured people are more likely to die from complications associated with preventable diseases such as diabetes and heart disease.

Some critics called the study flawed.

The National Center for Policy Analysis, a Washington think tank that backs a free-market approach to health care, said researchers overstated the death risk and did not track how long subjects were uninsured.

Woolhandler said that while Physicians for a National Health Program supports government-backed coverage, the Harvard study's six researchers closely followed the methodology used in the 1993 study conducted by researchers in the federal government as well as the University of Rochester in New York.

The Harvard researchers analyzed data on about 9,000 patients tracked by the U.S. Centers for Disease Control and Prevention's National Center for Health Statistics through the year 2000. They excluded older Americans because those aged 65 or older are covered by the U.S. Medicare insurance program.

"For any doctor ... it's completely a no-brainer that people who can't get health care are going to die more from the kinds of things that health care is supposed to prevent," said Woolhandler, a professor of medicine at Harvard and a primary care physician in Cambridge, Massachusetts.

No More Mr. Nice Guy

Original Link: http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin

By Jeffrey Toobin

When John G. Roberts, Jr., emerges from behind the red curtains and takes his place in the middle of the Supreme Court bench, he usually wears a pair of reading glasses, which he peers over to see the lawyers arguing before him. It’s an old-fashioned look for the Chief Justice of the United States, who is fifty-four, but, even with the glasses, there’s no mistaking that Roberts is the youngest person on the Court. (John Paul Stevens, the senior Associate Justice, who sits to Roberts’s right, is thirty-five years older.) Roberts’s face is unlined, his shoulders are broad and athletic, and only a few wisps of gray hair mark him as changed in any way from the judge who charmed the Senate Judiciary Committee at his confirmation hearing, in 2005.

On April 29th, the last day of arguments for the Court’s current term, the Justices heard Northwest Austin Municipal Utility District No. 1 v. Holder, a critical case about the future of the Voting Rights Act. Congress originally passed the law in 1965, and three years ago overwhelmingly passed its latest reauthorization, rejecting arguments that improvements in race relations had rendered the act unnecessary. Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted—that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.

Roberts said little to the lawyer for the plaintiff, but when Neal K. Katyal, the Deputy Solicitor General, took to the lectern to defend the Voting Rights Act, the Chief Justice pounced. “As I understand it, one-twentieth of one per cent of the submissions are not precleared,” Roberts said. “That, to me, suggests that they are sweeping far more broadly than they need to to address the intentional discrimination under the Fifteenth Amendment”—which guarantees the right to vote regardless of race.

“I disagree with that, Mr. Chief Justice,” Katyal said. “I think what it represents is that Section 5 is actually working very well—that it provides a deterrent.” According to Katyal, the fact that the Justice Department cleared almost all electoral changes proved, in effect, that the South had been trained, if not totally reformed.

Roberts removed his glasses and stared down at Katyal. “That’s like the old elephant whistle,” he said. “You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. ‘Well, there are no elephants, so it must work.’ ”

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they—when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

And this, ultimately, was the source of Roberts’s frustration—and not just in this case. In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination. The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test. Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Two days after the argument in the Voting Rights Act case, David H. Souter announced his resignation, giving President Barack Obama his first chance to nominate a Justice to the Court. The first Democratic nominee to the Court in fifteen years will confront what is now, increasingly, John Roberts’s Court. Along with Scalia, Clarence Thomas, Samuel A. Alito, Jr., and (usually) Anthony Kennedy, the majority of the Court is moving right as the rest of the country—or, at least, the rest of the federal government—is moving left. At this low moment in the historical reputation of George W. Bush, his nominee for Chief Justice stands in signal contrast to what appears today to be a failed and fading tenure as President. Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.

The Justices of the Supreme Court, as a rule, spare themselves unnecessary tedium. Their public hearings are lean and to the point; they hear lawyers’ arguments and, later, announce their decisions. Still, one relic of more leisurely times remains. Several times a month, before the start of the day’s oral arguments, the Justices allow attorneys to be sworn in as members of the Supreme Court bar in person, a process that can take fifteen minutes. (Most lawyers now conduct the swearing-in process by mail.) Rehnquist barely tolerated the practice, rushing through it and mumbling the names, and several colleagues (notably Souter) display an ostentatious boredom that verges on rudeness.

John Roberts, in contrast, welcomes each new lawyer with a smile, and when fathers or mothers put forth their lawyer children for admission—a tradition of sorts at the Court—the Chief makes sure to acknowledge “your son” and “your daughter” on the record. Everyone beams. It’s a small thing, of course, but just one example of Roberts’s appealing behavior in public, much as the nation viewed it during his testimony before the Judiciary Committee. At the time, Senator Dick Durbin, an Illinois Democrat who voted against Roberts’s confirmation, nonetheless observed that he was so ingratiating that he had “retired the trophy” for performance by a judicial nominee. When, early in his tenure, a light bulb exploded in the courtroom in the middle of a hearing, Roberts quipped, “It’s a trick they play on new Chief Justices all the time.” Laughter broke the tension.

Roberts was born in Buffalo on January 27, 1955, and raised in northern Indiana, where his father was an executive with a steel company and his mother a homemaker. (He has three sisters.) Jackie, as he was known, was educated at Catholic schools, and graduated from La Lumiere, at the time an all-boys parochial boarding school in LaPorte. He was the classic well-rounded star student—valedictorian and captain of the football team. He went on to Harvard, majored in history, and graduated in three years, summa cum laude.

At Harvard Law School, Roberts continued to excel, in an even more competitive atmosphere. “He was extremely smart,” said Laurence Tribe, the liberal scholar who taught Roberts constitutional law and grew to know him through his work on the Law Review. “He was really very good at being thoughtful and careful and not particularly conspicuous. He was very lawyerly, even as a law student.” In the mid-seventies, the atmosphere at Harvard still reflected the tumult of the sixties. Roberts stood out as a conservative, though not a notably intense one. “On the Law Review, John was the managing editor, so that meant he gave us our work assignments every day,” Elizabeth Geise, who was a year behind Roberts in law school, said. “He was very honest, straightforward, lot of integrity, fair. He was conservative, and we all knew that. That was unusual in those days. You couldn’t think of a guy who was a straighter arrow.” After graduating magna cum laude, in 1979, Roberts first clerked for Henry J. Friendly, of the federal appeals court in New York, who was legendary for his scholarship and erudition, but was not known as an especially partisan figure.

From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began. Rehnquist, appointed by Richard Nixon in 1972, was, in his first decade as a Justice, almost a fringe right-wing figure on the Court, which was then dominated by William J. Brennan, Jr. But Ronald Reagan’s election to the Presidency, which took place just a few months into Roberts’s clerkship, lifted Rehnquist to power and, more broadly, gave flight to the conservative legal movement.

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

As a former law clerk to Rehnquist, not to mention his immediate successor as Chief Justice, Roberts was an obvious choice to deliver the annual lecture named for Rehnquist at the University of Arizona law school in February. Roberts is a gifted public speaker—relaxed, often funny, sometimes self-deprecating—and he began his speech with a warm remembrance of his mentor. Like Barack Obama, Roberts can make reading from a prepared text look almost spontaneous. “I first met William Rehnquist more than twenty-eight years ago,” he told the audience in Tucson. “The initial meeting left a strong impression on me. Justice Rehnquist was friendly and unpretentious. He wore scuffed Hush Puppy shoes. That was my first lesson. Clothes do not make the man. The Justice sported long sideburns and Buddy Holly glasses long after they were fashionable. And he wore loud ties that I am confident were never fashionable.”

Before long, though, Roberts steered away from nostalgic reverie and into constitutional controversy. He maintained his relaxed and conversational cadence, but his words reflected a sharply partisan world view. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.” Rehnquist joined the Court toward the end of its liberal heyday—the era when the Justices expanded civil-rights protections for minorities, established new barriers between church and state, and, most famously, recognized a constitutional right to abortion for women. This period, in Roberts’s telling, was the bad old days.

These sentiments reflect a common view for conservatives like Roberts. “There really was a sense at the time among the lawyers in his Administration that Reagan had a mandate for comprehensive change in the nature of government,” Teles said. “They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all, and it was their job to restore professionalism to the legal profession in government.”

“I heard about John, and I immediately tried to hire him,” Charles Fried, the Harvard law professor who was Reagan’s second Solicitor General, said. Kenneth Starr, who was chief of staff to William French Smith, Reagan’s Attorney General, had hired Roberts as a special assistant to Smith. Roberts then went to work at the White House, as an associate counsel.

All the lawyers who worked for Reagan were, in some general sense, conservative, but there is a difference between those, like Roberts, who came of age during Reagan’s first term in office and those who prospered in his second. “The Department of Justice in the first term was full of serious, principled people,” Teles said. “They didn’t see themselves as part of the Christian right, or even necessarily part of a larger political movement, but they did think of themselves as real lawyers who were reacting to what they thought of as the excesses of liberalism.” They believed, Teles said, “in what they called judicial restraint and strict constructionism. Roberts comes out of this world.” Liberal critics, in turn, regard this view as unduly deferential to the status quo and thus a kind of abdication of the judicial role.

The legal philosophy of Edwin Meese III, which promoted an “originalist” view of the Constitution, dominated Reagan’s second term. Originalists, whose ranks now include Scalia and Thomas, believe that the Constitution should be interpreted in line with the intentions and beliefs of its framers. “John was not part of the Meese crowd,” one lawyer who worked with Roberts in the Reagan years said. “They cared more about a strict separation of powers, and even some limitations on executive and government power.”

Originalists and judicial-restraint conservatives generally reach similar conclusions on legal issues, but their reasoning differs. Both, for example, believe that the Constitution does not protect a woman’s right to abortion. “An originalist on abortion would say that at the time of the Constitution, or of the adoption of the Fourteenth Amendment, abortion was prohibited, and that’s it,” Akhil Reed Amar, a professor at Yale Law School, said. “A conservative like Roberts, on the other hand, wouldn’t look immediately at the question of whether all abortions should be outlawed, but examine the specific restriction on abortion rights at issue in the case and probably uphold it. He’d avoid the culture-war rhetoric and gradually begin cutting back on abortion rights without making lots of noise about getting rid of it altogether.” In 2007, Roberts joined Kennedy’s opinion that followed this approach in upholding a federal anti-abortion law. The Court’s two originalists, Scalia and Thomas, wrote a separate concurring opinion in that case, urging, as they had before, that Roe v. Wade be overturned once and for all.

In documents from the Reagan era that were made public during Roberts’s confirmation hearing, the young lawyer emerges as a loyal (and low-level) foot soldier in the Reagan revolution. On issues where there was disagreement within the Administration, Roberts’s memos generally show him supporting the more conservative position, especially on matters of race and civil rights. Roberts said that affirmative action required the “recruiting of inadequately prepared candidates,” and sought a narrow scope for Title IX, the law that mandates equal rights for men and women in educational settings. In 1981, Roberts wrote that a revision of the Voting Rights Act would “establish essentially a quota system for electoral politics by creating a right to proportional racial representation.” (Reagan signed the revision anyway.)

Roberts’s reputation soared in his White House years. “He was already on that superstar trajectory,” said Henny Wright, a lawyer, now living in Dallas, who became friends with Roberts in Washington at the time. “He was pretty much like he is today, except without the bald spot. Extremely attractive, in every sense of the word. He’s smart, he’s funny, he’s gregarious, he’s good-looking. In those days, he was never too busy to play a round of golf. He’s not a very good golfer, but, unlike a lot of golfers, he doesn’t let that ruin his day or your day.” Roberts’s wit even came through in the usually stultifying format of the interoffice memo. In 1983, Fred Fielding, the White House counsel, asked Roberts to evaluate a proposal then in circulation to create a kind of super appeals court to assist the Supreme Court with its ostensibly pressing workload. In response, Roberts noted, “While some of the tales of woe emanating from the court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

With the completion of oral arguments in the Voting Rights Act case, the Court has now entered the most contentious weeks of its year. The Justices almost always save their most controversial cases for the end of the term, and this year tensions may run higher than usual. For starters, the Supreme Court Building is now in the sixth year of a renovation—the first since it was dedicated, in 1935—that has forced each of the Justices to move to temporary chambers. The Justices do not take kindly to such disruptions, especially because they are now, by historical standards, a very old Court. John Paul Stevens just turned eighty-nine, and four Justices (Ruth Bader Ginsburg, Scalia, Kennedy, and Stephen Breyer) are in their seventies. The renovation project will also involve closing the entrance to the Court at the top of its iconic front steps—a change that is said to be a security measure but that several Justices regard as a distressing symbol. Souter’s impending departure, and unknown replacement, is another source of anxiety.

The substance of the Court’s work, of course, contributes most to the strains among the Justices. The Chief Justice has not yet embraced one particular judicial principle as his special interest—in the way that Rehnquist chose federalism and states’ rights—but Roberts is clearly moved by the subject of race, as illustrated by his combative performance during the Texas and New Haven arguments. His concerns reflect the views that prevailed at the Reagan White House: that the government should ignore historical or even continuing inequities and never recognize or reward individuals on the basis of race. In a recent case, a majority of the Justices applied a provision of the Voting Rights Act to reject part of a Texas redistricting plan that was found to hurt Hispanic voters. Roberts dissented from that decision, writing, in an unusually direct expression of disgust, “It is a sordid business, this divvying us up by race.”

Race was also at the center of the most important opinion so far in his career as Chief Justice—a case that also displayed his pugnacious style in oral argument. Parents Involved in Community Schools v. Seattle School District No. 1 concerned a challenge to the city’s racial-integration plan. The Seattle plan assigned students to schools based on a variety of factors, including how close the student lived to the school and whether siblings already attended, but the goal of maintaining racial diversity was considered as well. At the oral argument, on December 4, 2006, the Chief Justice tore into Michael F. Madden, the lawyer for the Seattle school district.

“You don’t defend the choice policy on the basis that the schools offer education to everyone of the same quality, do you?” he asked, and Madden said that he did defend it on those grounds.

“How is that different from the ‘separate but equal’ argument?” Roberts went on. “In other words, it doesn’t matter that they’re being assigned on the basis of their race because they’re getting the same type of education.”

“Well, because the schools are not racially separate,” the lawyer said. “The goal is to maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research shows flow from an integrated education.”

Roberts wouldn’t let the issue go. “Well, you’re saying every—I mean, everyone got a seat in Brown as well; but, because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”

“Because segregation is harmful,” Madden said. “Integration, as this Court has recognized . . . has benefits.”

In the Seattle case, the Court ruled by a five-to-four vote that the integration plan did indeed violate the equal-protection clause of the Constitution, and Roberts assigned himself the opinion. The Chief Justice said that the result in the Seattle case was compelled by perhaps the best-known decision in the Court’s history, Brown v. Board of Education. In that ruling, in 1954, the Court held that school segregation was unconstitutional and rejected the claim that segregated schools were “separate but equal.” In Roberts’s view, there was no legal difference between the intentionally segregated public schools of Topeka, Kansas, at issue in Brown, and the integration plan in Seattle, five decades later. In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts’s opinion drew an incredulous dissent from Stevens, who said that the Chief Justice’s words reminded him of “Anatole France’s observation” that the “majestic equality” of the law forbade “rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts’s decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision,” Stevens concluded.

In Roberts’s first term, when Alito also joined the Court, there were fewer controversial cases than usual, as well as an apparent effort by the Justices to reach more unanimous decisions. But the Seattle case came down on June 28, 2007, which was the last day of Roberts’s second full term as Chief Justice and a year of routs for liberals on the Court. That same day, the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations. Also that year they upheld the federal Partial Birth Abortion Ban Act, in Kennedy’s opinion, even though the Court had rejected a nearly identical law just seven years earlier. The case of Ledbetter v. Goodyear, brought by a sympathetic grandmother who had been paid far less than men doing the same work at the tire company, became a political flashpoint because the conservative majority, in an opinion by Alito, imposed seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits. (Ginsburg, in an unusual move, read her dissent from the bench.) In all these cases, Roberts and Alito joined with Scalia, Clarence Thomas, and Kennedy to make the majority. On this final day, Breyer offered an unusually public rebuke to his new colleagues. “It is not often in the law that so few have so quickly changed so much,” Breyer said.

Roberts’s sure-handed sense of pub lic relations has deserted him only once during his tenure so far. The Chief Justice, as the leader of the federal judiciary, is obligated to prepare an annual report, which historically has been a fairly anodyne document—a set of modest requests to Congress, like faster confirmation of judges or new construction funds for courthouses. In 2006, however, Roberts devoted his entire report to arguing for raises for federal judges, and he even went so far as to call the status quo on salaries a “constitutional crisis.” Most federal judges are paid a hundred and sixty-nine thousand dollars, and at that point they had not had a real raise in fifteen years. This request to Congress was universally popular among Roberts’s colleagues, who were long used to watching their law clerks exceed their own salaries in their first year of private practice.

Congress, however, snubbed the Chief Justice. Six-figure salaries, lifetime tenure, and the opportunity to retire at full pay did not look inadequate to the elected officials, who make the same amount as judges and must face ordinary voters. Roberts’s blindness on the issue may owe something to his having inhabited a rarefied corner of Washington for the past three decades.

In 1986, after his service in the Reagan White House, Roberts went to the Washington law firm of Hogan & Hartson, where he developed a successful practice as an appellate advocate. “John’s a very, very conservative fellow, and I’m the opposite, but that was never a problem for us,” E. Barrett Prettyman, Jr., a longtime partner at the firm and a co-counsel with Roberts on dozens of cases, said. “Our work was mostly corporate, some criminal, a few individuals as clients. The key to his success was that he was very clear, very articulate, and never confusing.”

When George H. W. Bush won the Presidency, in 1988, his new Solicitor General, Kenneth Starr, hired Roberts again, this time as his principal deputy. Near the end of the first Bush’s term, Roberts was nominated to the United States Court of Appeals for the D.C. Circuit, but Democrats in the Senate, sensing a victory in the approaching 1992 election, refused to let him come up for a vote. So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year. In 1996, Roberts, then forty-one, married Jane Sullivan, a fellow-lawyer, also in her forties, who now works as a legal recruiter. In 2000, they adopted two children, who are both now eight years old.

While at Hogan, Roberts became a lunchtime regular at the table of J. William Fulbright, the former Arkansas senator, in the firm’s cafeteria. Fulbright was affiliated with Hogan from the time of his departure from office, in 1974, until his death, in 1995, and he presided over a salon of sorts for partners with an interest in politics. “It was a politically diverse group, and they’d just get together and talk about the issues of the day,” David Leitch, who was also a partner at Hogan, said. “John is interested in political issues, he is interested in the process of politics. He used to like to handicap elections.” Roberts took a direct role in the contested 2000 election, travelling to Tallahassee to assist George W. Bush’s legal team in the recount litigation. He was rewarded for his efforts the following year, when Bush, like his father before him, nominated Roberts to the D.C. Circuit. He was confirmed two years later, and he served there until Bush chose him for the Supreme Court.

In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts’s circle of professional peers consisted entirely of other wealthy and accomplished lawyers. In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage. “Some judges have actually left the bench because they could make more money in private practice, and some Justices have complained privately about how it’s almost impossible to educate your family on that kind of money,” Prettyman said. “You don’t want an unhappy court, judges who are worried about their salaries. John saw that.”

Roberts’s career as a lawyer marked him in other ways as well. In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.

One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him. The issue involved the legal doctrine known as “standing”—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance. “One of the distinctive things about American courts is that we have all these gatekeeper provisions that keep courts from getting involved in every single dispute,” Samuel Issacharoff, a professor at New York University School of Law, says. “The doctrine of standing says that you only want lawsuits to proceed if the plaintiffs are arguing about a real injury done to them, not simply that they want to be heard on a public-policy question.” Liberals and conservatives have been fighting over standing for decades. “Standing is a technical legal doctrine, but it is shorthand for whether courts have a role in policing the conduct of government,” Issacharoff says. “Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”

Lujan v. National Wildlife Federation was one of the Rehnquist Court’s most important standing cases. The environmental group had challenged the Reagan Administration’s effort to make as much as a hundred and eighty million acres of federal land available for mining. In an argument before the Court on April 16, 1990, Roberts said that the mere allegation that a member of the National Wildlife Federation used land “in the vicinity” of the affected acres did not entitle the group to standing to bring the case. “That sort of interest was insufficient to confer standing, because it was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject,’ ” Roberts told the Justices. By a vote of five to four, the Justices agreed with Roberts and threw out the case. According to Issacharoff, “Lujan was the first big case that said, Just because you are really devoted to a cause like the environment, that doesn’t mean we are going to let you into the courthouse.”

As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.

In the past four years, Roberts and Scalia, while voting together most of the time, have had a dialogue of sorts about how best to address the Court’s liberal precedents. For example, Roberts wrote a narrow opinion in 2007 holding that the McCain-Feingold campaign-finance law did not apply to certain political advertisements in Wisconsin. Scalia agreed with Roberts’s conclusion in the case, but he said that the Chief Justice should have gone farther and declared the whole law unconstitutional, on free-speech grounds. Scalia insisted that Roberts was just being coy, that his opinion had in fact overruled an earlier ruling that upheld the campaign-finance law, but that he wouldn’t come out and say it. “This faux judicial restraint is judicial obfuscation,” Scalia wrote.

In a case about the free-speech rights of students, Roberts wrote the opinion approving the suspension of a high-school student in Alaska for holding a sign that said “BONG HiTS 4 JESUS” on a street off school grounds. The Chief Justice said the school had the right to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Thomas, characteristically, wrote a concurring opinion urging the Court to go farther and hold that students have no First Amendment rights at all. But the larger point remained that Roberts, Scalia, and Thomas voted together in that case, as they do virtually all the time. “These kinds of distinctions among the conservatives are just angels-on-the-head-of-a-pin stuff,” says Theodore B. Olson, the former Solicitor General, who remains a frequent advocate before the Court. “Roberts is just what he said he would be in his hearing—a judge who believes in humility and judicial restraint.” Like the other conservatives, for instance, Roberts has been a consistent supporter of death sentences, and he wrote the Court’s opinion holding that lethal injection does not amount to the sort of cruel and unusual punishment prohibited by the Eighth Amendment. Many liberals, too, feel that Roberts is far more similar to his conservative colleagues than he appeared to be at the time of his confirmation hearing. According to Harvard’s Laurence Tribe, “The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.”

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said. Just a few days before Bush appointed Roberts to the Supreme Court, in 2005, Roberts joined an opinion on the D.C. Circuit in Hamdan v. Rumsfeld that upheld the Bush Administration’s position on the treatment of detainees at Guantánamo Bay. (With Roberts recused from the case, the Supreme Court overruled that decision in 2006, by a five-to-three vote, with Kennedy joining the liberals.) Scalia has occasionally shown a libertarian streak, but Roberts, true to his White House past, has consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches. Last year, Roberts dissented from Kennedy’s opinion for a five-to-four Court in Boumediene v. Bush, which held that the Military Commissions Act of 2006 violated the rights of Guantánamo detainees. Roberts saw the case as mostly a contest between the executive branch and the rest of the federal government. “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” Roberts wrote in his dissent. “One cannot help but think . . . that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.”

Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no. “We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” the Chief Justice wrote. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.” Though Roberts was writing for only a five-to-four majority, he added, “Where the public interest lies does not strike us as a close question.”

On the morning of January 20th, the Supreme Court held a small reception for the Justices and their guests before they all headed across First Street to the Capitol for the Inauguration of Barack Obama. Friends present say that Roberts was nervous that morning. He was used to appearing before crowds, of course, but this was the first time that he would be performing the most public of the Chief Justice’s duties—administering the Presidential oath of office—and the audience, in person and by broadcast, would be in the many millions. In keeping with his perfectionist nature, Roberts had rehearsed the oath ceremony and had long since committed the words to memory.

Through intermediaries, Roberts and Obama had agreed how to divide the thirty-five-word oath for the swearing in. Obama was first supposed to repeat the clause “I, Barack Hussein Obama, do solemnly swear.” But, when Obama heard Roberts begin to speak, he interrupted Roberts before he said “do solemnly swear.” This apparently flustered the Chief Justice, who then made a mistake in the next line, inserting the word “faithfully” out of order. Obama smiled, apparently recognizing the error, then tried to follow along. Roberts then garbled another word in the next passage, before correctly reciting, “preserve, protect, and defend the Constitution of the United States.”

At the lunch in the Capitol that followed, the two men apologized to each other, but Roberts insisted that he was the one at fault. For the day, Roberts lost some of his customary equanimity as he brooded about making such a public mistake. (He went to the White House the next day, and the oath was repeated, correctly, to forestall any challenges to its legality.) Since then, Roberts has put the embarrassment behind him and even made it the subject of a little humor at his own expense. On January 26th, he presided over the installation of the new leader of the Smithsonian Institution. “Those of you who have read it will see from the program that the Smithsonian some time ago adopted the passing of a key in lieu of the administration of an oath,” Roberts said. “I don’t know who was responsible for that decision. But I like him.”

Still, the flubbed oath will always link Roberts and Obama, whose lives reflect considerable similarities as well as major differences. They belong to roughly the same generation—Roberts is six years older—and received similar educations. Roberts and Obama graduated from Harvard Law School in 1979 and 1991, respectively—Obama had taken time off to work as a community organizer in Chicago—and both served on the Law Review. (Obama was president, the top position; Roberts, in his capacity as managing editor, was just below that.) They share an even-tempered disposition, obvious but unshowy intelligence, and fierce ambition leavened by considerable charm.

But the distinctions between these two men are just as apparent. Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.

In a way, Obama offers a mirror image of the view of the Supreme Court that Roberts presented in his tribute to Rehnquist in Tucson. To Obama, what Roberts called the “solid grounds of legal arguments” was only the beginning of constitutional interpretation, not the end. In his statement announcing Souter’s resignation, on May 1st, the President defined the qualities he was looking for in a Justice in a very different way from Roberts’s description of Rehnquist. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation,” Obama said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

The differences between Roberts and Obama include such issues as abortion and affirmative action, but they extend beyond such familiar legal battlegrounds to what Roberts called, in his Tucson speech, “the nature of the Court itself.” “When Justice Rehnquist went on the Court, a minority of the Justices had been former federal judges,” Roberts observed. “Today, for the first time in its history, every member of the Court was a federal court-of-appeals judge before joining the Court—a more legal perspective, and less of a policy perspective.”

Obama does not regard the all-former-judge makeup of the Supreme Court as an unalloyed virtue. “The obvious sources of candidates have been people already on the bench and people who are distinguished academic legal scholars and teachers,” Gregory Craig, the White House counsel, told me in February. “But he’s also looking for lawyers who have been public defenders or prosecutors, or representing points of view with respect to immigration or the Innocence Project. He doesn’t think you have to be a member of the circuit courts of appeals to be on the Supreme Court.” Obama has spoken fondly of Earl Warren, the fourteenth Chief Justice, who came to the Court from the governorship of California.

When Vice-President Biden publicly mocked Roberts about his gaffe at a ceremony shortly after the Inauguration, Obama shot him a scathing look of rebuke. (Biden later called Roberts to apologize.) Still, there is no disputing that the President and the Chief Justice are adversaries in a contest for control of the Court, and that both men come to that battle well armed. Obama has at most one more chance to take the oath of office, and Roberts will probably have a half-dozen more opportunities to get it right. But each time Roberts walks down the steps of the Capitol to administer the oath, he may well be surrounded—and eventually outvoted—by Supreme Court colleagues appointed by Barack Obama.

The Activist Roberts Court

Original Link: http://blog.kiplinger.com/politics/2009/09/the-activist-roberts-court.html

By Mark Willen

It is now widely expected that the Supreme Court will overturn decades of legal precedent and congressional intent later this month and allow unlimited corporate spending to sway elections. If it does, it will remove any pretense that Chief Justice John Roberts and his conservative colleagues are anything short of "activists."

When many Republicans voted against Sonya Sotomayor's nomination to the high court, they cited concerns that she was an activist who would "legislate from the bench." Conservatives insisted judges should be strictly limited to interpreting the Constitution and the laws passed by Congress, not making new ones. But don't expect those conservative Republicans to object if the Court rules that limits on campaign spending by businesses and advocacy groups incorporated as businesses are a violation of the First Amendment's free speech guarantees.

At the hearing Sept. 9, Roberts and several of his conservative colleagues openly questioned Supreme Court rulings dating back more than 100 years, including the two most recent in 1990 and 2003. Never mind that Roberts, in his own confirmation hearings, spoke eloquently of the importance of precedence, saying that reversals of long-standing decisions can send a jolt through the legal system.

Not all Republicans favor overturning existing law. Sen. John McCain, the chief GOP sponsor of the McCain-Feingold law, told reporters after the hearing in Citizens United v. Federal Elections Commission that he was troubled by the "extreme naivete" of some of the justices about the role of special interest money in elections. In their questioning, the five conservative justices -- Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy -- showed near complete disdain for congressional intent in passing laws restricting corporate giving. Scalia has even suggested that Congress' intent is irrelevant since lawmakers are interested parties in the issue.

Supporters of the restrictions are still hoping the court will rule narrowly, deciding that the particular example before them -- a highly critical movie about Hillary Clinton -- is permissible because it's not the kind of speech intended to be covered by the law. But the conservative five showed no inclination to keep their ruling narrow.

The court's increasing willingness to reverse precedent has already put it on a collision course with Congress, which has moved to the left in the past few years just as the court has moved to the right. Expect many more confrontations in the years ahead.

Jeffrey Rosen, a liberal law professor at George Washington University, says the choice is really up to Roberts. In an op-ed piece in the New York Times earlier this month, he gave Roberts a mixed grade in his stated goal of fashioning more consensus on the court. Rosen noted that Roberts had expressed a desire to emulate the modesty and unanimity of the great Chief Justice John Marshall, and warned that if he uses the campaign finance case to push through a sweeping decision on a narrow 5-4 vote, he risks being remembered instead as the conservative version of Earl Warren. It's a warning that Roberts ought to take seriously.

Exercise Caution

Original Link: http://www.washingtonpost.com/wp-dyn/content/article/2009/09/07/AR2009090702048.html

Supreme Court should respect precedent in deciding Wednesday's campaign-finance case.

THERE ARE MANY complicated aspects of the campaign-finance case the Supreme Court is poised to hear Wednesday, but the issue boils down to this: Will the justices let corporations spend unlimited amounts to elect or defeat candidates for federal office? This course of action would be unwise and unnecessary to resolve the dispute at hand.

For more than a century, Congress has prohibited corporations from making contributions in federal elections. Six decades ago, in extending that ban to labor unions, Congress sensibly barred both corporations and unions from spending money on their own, rather than simply giving it to candidates, to influence federal elections.

In 1990, the court affirmed the constitutionality of this kind of restriction. In 2007, the court made clear that the corporate spending prohibition covered not only so-called magic words such as "vote for" or "vote against" but also communications that cannot reasonably be interpreted except as a call to such action.

All of this is what makes Wednesday's unusual session so ominous. The new case involves a critical documentary, "Hillary: The Movie," produced by a conservative group called Citizens United, and released during the 2008 primary season. In ordering up an unusual second argument before its new term begins, the court asked the parties to address the question of whether it should reconsider those two earlier rulings.

The case offers several plausible routes to avoid that dramatic step. Citizens United wanted to make the movie available as a video on demand accessible through cable television. That brought into play the rule that bars corporations from airing broadcast advertising advocating the election or defeat of candidates. The corporate provision applied to Citizens United for two reasons: The group is organized as a corporation, and it takes a small amount of corporate money among its donations.

Citizens United ought to have been allowed to distribute "Hillary: The Movie" any way it chose; this is just the sort of political speech that the First Amendment was designed to protect. But those protections can be upheld without eroding the prohibition on corporate-funded campaign advertising.

First, there is a difference between a campaign ad that comes blaring over the airwaves and a video on demand, which by definition is speech the listener asks to hear. Second, there is a difference between an ideological group such as Citizens United, which takes the corporate form, and a conventional for-profit corporation. The Supreme Court has already recognized that fact, and it carved an exception in the law for nonprofit corporations that don't take corporate funds; it should expand that further to include nonprofit corporations for which corporate donations constitute a minimal amount of their financing.

For the court instead to reach out and overrule the earlier cases would be judicial activism of the first order, precisely the opposite of the judicial modesty and adherence to precedent advocated by Chief Justice John G. Roberts Jr. The court should back away from this cliff.

Elections for sale?

Original Link: http://www.latimes.com/news/opinion/commentary/la-oe-kendall8-2009sep08,0,7076936.story

By Doug Kendall

If the Supreme Court lifts restrictions on corporate campaign contributions, watch out.

If we learned anything this last year, it's that corporations must have government oversight. They are too big to fail, and powerful enough that corporate malfeasance, abetted by a lax government, can bring the global economy to its knees.

Yet the U.S. Supreme Court has reached out to consider an argument to give corporations a free hand to influence electoral politics. A ruling accepting this argument would shake the very foundation of our republic, turning us from a government of "we the people" to "we the corporations."

In his historic run to the presidency, Barack Obama broke every political fundraising record, raising nearly $750 million from more than a million contributors in 2007 and 2008. Now consider a corporation such as Exxon Mobil. During 2008 alone, Exxon generated profits of $45 billion. With a diversion of even 2% of these profits to the political process, Exxon could have far outspent the Obama campaign and fundamentally changed the dynamic of the 2008 election.

That's what's at issue as the Supreme Court takes on, for the second time, the case of Citizens United vs. FEC in a special hearing Wednesday, a month before the formal opening of the new term.

The case involves a film, "Hillary: The Movie," which sharply attacks Hillary Rodham Clinton and her presidential candidacy. It was produced by Citizens United, a conservative nonprofit advocacy group, to coincide with the 2008 presidential primary season. The Federal Election Commission saw the movie as no different from a standard-issue attack ad -- just longer -- and considered it subject to restrictions imposed under the 2002 McCain-Feingold campaign finance law as an "electioneering communication."

Citizens United began as a seemingly inconsequential case about the extent of the FEC's power to regulate such communications, but that was transformed at oral argument in March into a much bigger deal. Citizens United pressed for a sweeping rejection of congressional authority to regulate campaign spending by corporations, and the court's conservative justices were plainly sympathetic to this broad argument.

Things got really scary on June 29, when the high court not only ordered re-argument of the case but ordered the parties to brief and argue the supplemental question of whether it should overrule Austin vs. Michigan Chamber of Commerce and parts of McConnell vs. FEC, both of which uphold regulation of corporate spending in candidate elections.

The case now turns on a simple but vitally important question: Are corporations different from individuals?

Citizens United and its allies want the court to treat corporate campaign expenditures -- which have been declared a form of "speech" by a prior Supreme Court ruling -- identically to expenditures by people, which are unlimited if done independently and not coordinated with a candidate's campaign. They argue, in essence, that corporate "speech" is entitled to just as much protection under the 1st Amendment as individual speech. In its Austin ruling, the court rejected that idea, finding that the "unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures."

The line between corporations and individuals when it comes to constitutional protections is as old as the United States. The framers wrote the Constitution to protect citizens and the people and never once used the word "corporations."

Early Supreme Court rulings embraced this distinction, holding that the legal rights of a corporation derive from its corporate charter, not the Constitution.

Since the nation's founding, our constitutional story has been one of democratic progress, moving toward broader enfranchisement and more meaningful political participation for individual Americans. Regulation of corporate influence in elections has helped make this progress possible. Indeed, one of the animating concerns of the 17th Amendment, which secured direct election of senators by the people, was the outsized influence corporations were having on the selection of senators by state legislatures.

The court's ruling in Austin, in other words, is fully consistent with the Constitution's text and history. If conservative justices on the Supreme Court overrule Austin, they will be guilty not only of unleashing corporate influence on elections -- in blatant disregard of the will of Congress and of the American people -- but of violating their own purported allegiance to upholding our founding document.

Asked the type of government established at the Constitutional Convention, Ben Franklin famously quipped: "a republic, if you can keep it." But what if the Supreme Court takes it from us?

A Threat to Fair Elections

Original Link: http://www.nytimes.com/2009/09/08/opinion/08tue1.html

The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.

Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.

The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.

In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.

All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.

The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law.

The scheduling is enormously troubling. There is no rush to address the constitutionality of the corporate expenditures limit. But the court is racing to do that in a poorly chosen case with no factual record on the critical question, making careful deliberation impossible.

Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.

Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

The conservative majority on the court likes to present itself as deferential to the elected branches of government and as minimalists about the role of judges. Chief Justice Roberts promised the Senate that if confirmed he would remember that it’s his “job to call balls and strikes and not to pitch or bat.”

If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.