The case against the Supreme Court

Law professor and scholar Erwin Chemerinksy has written a new book about the Supreme Court.  Some particularly interesting excerpts from Dahlia Lithwick’s interview with him about it:

Your argument for the failure of the court rests largely in the criticism that the most central role of the Supreme Court is to “enforce the Constitution against the will of the majority.” I imagine that a lot of your critics would disagree with that assessment. I imagine others would contend the Roberts court does protect minorities, say, when it protects the rights of billionaires to contribute to campaigns, or of religious Christians who don’t want to fund contraception. What makes you so certain that acting as a counter-majoritarian check is the defining role of the court?

I think that there are two important questions here. First, why believe that a pre-eminent role of the court is to protect minorities? To me, it goes to the question of: Why have a Constitution? Why should a democracy be governed by a document that is difficult to change? It is not to protect the majority; they generally can protect themselves through the democratic process. It is minorities who cannot protect themselves through majoritarian democracy. I believe that the Constitution exists especially (though not exclusively) to protect the rights of minorities of all types.

Second, who is a minority? That is a difficult question. The key, based on my definition above, is those who are unlikely to be able to protect themselves in the majoritarian process. Examples include racial minorities, criminal defendants, the homeless, prisoners. Billionaires obviously are very able to protect themselves in the political process.

Also, I have been railing against John Robert’s “balls and strikes” ever since he said it.  Loved to see Chemerinksy strike it down and extend the metaphor:

It is a grossly inaccurate description of what Supreme Court justices do. Supreme Court justices do not simply call balls and strikes. They determine the rules and the strike zone. Justices have tremendous discretion in the cases coming before them, and the descriptions of Roberts and Sotomayor portray it otherwise. Every Supreme Court decision makes the law. When the court decides whether states can prohibit marriage equality, that will make the law whichever way the court describes it. John Roberts and Sonia Sotomayor would have been confirmed almost no matter what they did at their confirmation hearings. Each gave the American public a very misleading sense of what the court does.

Screwed in the ER

Yet another excellent NYT story on how various health care entities are always finding new ways to screw us over.  The latest?  In-network Emergency Rooms that hire out-of-network Emergency physicians.  Yep:

Patients have no choice about which physician they see when they go to an emergency room, even if they have the presence of mind to visit a hospital that is in their insurance network. In the piles of forms that patients sign in those chaotic first moments is often an acknowledgment that they understand some providers may be out of network…

But even the most basic visits with emergency room physicians and other doctors called in to consult are increasingly leaving patients with hefty bills: More and more, doctors who work in emergency rooms are private contractors who are out of network or do not accept any insurance plans…

While patients have complained of surprise out-of-network charges in hospitals from some other specialists — particularly anesthesiologists, radiologists and pathologists — the situation with emergency room doctors is even more troubling, patient advocates say. For one thing, patients cannot be expected to review provider networks in a crisis, and the information to do so is usually not readily available anyway. Moreover, the Texas study found that out-of-network fees paid to emergency room physicians eclipsed the amount of money paid to those other specialists…

The average salary of an emergency room physician was $311,000 in 2014, rising from $247,000 since 2010 — a period when many other types of doctors experienced declines in salaries, according to Merritt Hawkins, a physician staffing firm.

Read the article for the depressing details of patients who thought they were doing everything right only to get saddled with outrageous medical bills.  Even better, though, is Drum’s rant in response:

This is a great scam for everyone. Presumably hospitals save money because freelance ER docs cost them less. And the ER docs cost less because they know they’ll be able to run the ol’ out-of-network scam on lots of patients, thus raking in the bucks. It’s a win-win.

As a result, during a period of economic stagnation that produced zero wage growth for everyone else, ER docs are now making $64,000 more than they did four years ago. And they’re doing this by preying on the most vulnerable, most easily scammable members of society: folks who are flat on their backs and almost by definition unable to understand what’s going on around them. Not that it would matter if they did, of course. The law provides no recourse even if you don’t like this system. That’s the way things roll in the American health care system.5

If this kind of stuff doesn’t make you pop a vein, I’m not sure what would. It’s right on a par with the telemarketing ghouls who prey on senior citizens with dementia. Except that these guys wear white coats and are welcomed into all the best country clubs.

I’m going to go out on a limb here and suggest this just doesn’t happen in other modern nations with rational health care systems (and substantially more government involvement).

Photo of the day

It’s Fall so it must be giant pumpkin time.  From the Telegraph’s photos of the week:

Stuart Holden has produced a monster 600lb pumpkin after making a £25 bet with his friend. Stuart, 28, hadn’t grown any big vegtables before but gave it a go after shaking hands on the wager and his fed-up pal’s squash plant hasn t even reached 100lbs. Sitting pretty is Stuart’s baby stepdaughter Amelia Croxon.Picture: Red Williams/Archant

We’re 51!

From the Greensboro News & Record.  Ugh.

Among the 50 states and the District of Columbia, North Carolina ranks as the worst state for teachers, according to a new ranking by WalletHub.

The personal finance website analyzed data along 18 categories to come to its rankings.

The metrics it looked at included looks at states’ median starting salaries, unemployment rates and teacher job openings, among other factors.

Here is where North Carolina ranked in several categories:

  • Average starting salary, 41,
  • Median annual salary, 47,
  • Unemployment rate, 38,
  • Ten-year change in teacher salary, 51,
  • Pupil-to-teacher ratio, 32,
  • Public school spending per student, 48,
  • Teachers’ wage disparity, 43, and
  • Safest schools, 40.

I enjoyed all the comments about how it is the Democrat’s fault that the ten-year change in teacher salary is 51.  And whereas Democrats can take a portion of the blame, Republicans have controlled the legislature (and the budgeting process) since 2011 and we have seen our teacher salary ranking decline rapidly in recent years.

Thom Tillis wants to be US Senator

Thmoas Mills, whom I really enjoy when I read him in PoliticsNC has a nice piece in The Atlantic asking “what does Thom Tillis want?”  I.e., other than achieving ever greater political power, it’s not exactly clear.

Thom Tillis is a man in a hurry. He went from city councilor to North Carolina House speaker in just five years. Four months into his second term as speaker, he was running for U.S. Senate. The man who would hand the Republicans control of the Senate has been a lot of things in a short amount of time. And while he seems to know where he’s going, it’s less clear that he knows what he’ll do once he gets there.

I had not actually realized why Tillis’ political career rise was so meteoric and there’s lots of good stuff about the tensions within the NC Republican Party.

We don’t govern by public opinion polls

I read this Op-Ed in the N&O yesterday about how we need to increase funding for early childhood education.  Honestly, we, really, really should.  Policy-wise this is a no-brainer– the benefits well exceed the costs.  Alas, the costs are now and the benefits are down the road.  And politicians?  Well, you know how long down the road they are looking.  And, you know, we might actually need taxes (heaven forbid) to pay for it.  The authors make their case with a recent advocacy poll:

Given that it is election season, perhaps the most compelling numbers in the poll are these: A majority of voters are more likely to vote for candidates who support early childhood education, including 73 percent of mothers, 57 percent of moderates and 53 percent of Independents. In fact, nearly a third of voters even said they would be much more likely to vote for a candidate who supported investments in early childhood education, with only 9 percent saying they would be less likely.

Now, I don’t doubt that’s true, but in the real electoral world, voters are going to care way more if there is a D or R in front of the candidate’s name.  Not to mention, where the candidate stands on abortion, taxes, guns, etc.

Also, there’s this:

Nearly three-quarters of North Carolina voters (71 percent) support greater federal investment in local early childhood education even if it increased the deficit in the short term but paid for itself in the long term by improving children’s education, health and economic situations.

Sure, poll respondents say they are willing to accept the short-term deficit increase (as well they should, just like any investment you pay upfront), but think about all the politicians railing against this policy for increasing the deficit!

The truth is, if only Democrats were in charge, we could get this policy, but despite what Republican voters say in the poll, there’s just not enough support in the Republican party.  Reminded me very much of a post by Hans Noel earlier this week on paid sick leave.  The gist– intensity matters, a lot:

What am I to make of the survey data Deng reports, that shows that 76 percent of Republicans in a survey support requiring employers to offer paid sick leave? In short, those are voters, who were asked about a policy in isolation, without much consideration of other policies or even any details.[1] What matters is not just what people want, but what they would prioritize. It’s not who likes a policy, but who intensely wants it. This survey shows preferences before politics gets involved. And no matter how idealistic we want to be, politics will get involved. The fact that large majorities want something might make us think it should be enacted, but that doesn’t mean it’s politically wise for Republicans to try to enact it…

So the angle on this survey should not be that this is a winner for Republicans. It probably isn’t.[2] The angle is something deeper. What are we to do when a majority wants something, but the minority gets its way? Here, that seems like an injustice. And maybe it is. On the other hand, a majority was not in favor of civil rights in the 1960s. A majority of both parties opposed civil rights legislation, and it stayed off the agenda for decades. Then, the Democratic coalition began to push out its segregationist elements and advocated for the policy. In the end, what matters in American democracy is not how many people want something. It’s how intensely the people who do want it want it, and how well organized they are. [emphases in original]

Now, some Republican elites really may want more pre-K funding.  But not enough of them and not strongly enough and that is (unfortunately) far more important than an opinion poll that tells us that a solid majority of Republican identifiers support it.

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