The bad faith of the Supreme Court conservatives

I get and accept that the Supreme Court conservatives have different views from me that will lead to different outcomes on some issues.  I think those views are problematic, but I think it is reasonable to have a different understanding of how to interpret the constitution and federal law.  I.e., I think they generally act in good faith.

But honestly, when the Trump administration comes before them having acted entirely in bad faith (something the Trump administration does on a regular basis, of course) I don’t know what to call it except bad faith for them to simply pretend that the Trump administration is not doing so.  Really good Linda Greenhouse column on this:

Harmful as that impact would be on the affected areas, I want to argue here that validating the Trump administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.

Never mind that three Federal District Courts, ruling since the first of the year in three cases, have found the addition of the citizenship question to be procedurally improper or flat-out unconstitutional. There are respectable contrary arguments that might be made, under the Administrative Procedure Act or the Constitution’s Enumeration Clause, or there would be, had the administration acted in the good faith that Judge Jesse Furman, ruling in the case now before the court, found to be conspicuously lacking.

Perhaps the justices who appear poised to overturn the lower-court decisions really believe that Congress has delegated its constitutional census obligation to the secretary of commerce to conduct the enumeration however he wishes without judicial supervision. Maybe they really think that the 18 states suing the Commerce Department lack standing because any harm that befalls them from the citizenship question is due not to the government but to the “illegal” acts of immigrants who fail to answer the census. These propositions constitute the core of the administration’s argument. If the justices are honestly persuaded by them, well, that’s litigation for you. It’s a zero-sum game in which someone wins and someone loses.

But if the plaintiff states are going to lose, it seems to me that it matters greatly how they lose. What was depressing and even scary about the April 23 argument was the disingenuous lengths to which the conservative justices were willing to go to tilt the case in the administration’s favor. They played dumb. They pretended not to know what they surely knew: that the citizenship question will depress the census count in a way that is predictably harmful and that the administration’s brief concealed the real story of how the citizenship question made its way onto the census. In other words, I have enough respect for the justices’ basic intelligence, which includes the ability to read the same briefs and opinions that I read, to conclude that they know full well what game is afoot.  [emphasis mine]

Don’t take my word for it. Read the transcript. The conservative justices were at pains to challenge the very idea that the citizenship question could depress noncitizens’ response rates, despite the fact that numerous Census Bureau studies have shown that to be the case…

In the administration’s brief, Mr. Francisco complains that “until now no court has seen fit to police the contents of the decennial census questionnaire by even entertaining an arbitrary-and-capricious challenge, let alone upholding one.” Could the reason be that no administration before this one thought to pull off such a trick? But this one did, leaving the Roberts court with a choice: It can be the administration’s enabler or it can acknowledge the truth and be a firewall. That choice is a fateful one, for the court and for the rest of us.

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Quick hits (part I)

1) Matt Yglesias‘ essay on why it is important to pay members of Congress and their staff a lot more is really great.  You should read it!  Short version: Congress will be better and our democracy will be better:

Congressional pay has been declining in inflation-adjusted terms since the mid-1960s, even while incomes for other professional occupations have risen. Today, a House member earns $174,000 a year — a bit less than the average dentist and quite a bit less than the average doctor — which is certainly not a poverty wage but also not exactly an elite salary. Newly elected members are typically 50-something with professional backgrounds in law and business who are earning less than what they were previously making in the private sector and less than they could make by quitting and going to work on K Street.

Evidence from state legislatures indicates that better pay would attract a larger, more ideologically diverse candidate pool and potentially generate a Congress that actually does things.

But the quality-of-life problems members of Congress face do not stop at salary: They also include the high cost of housing in the Washington, DC, area, and inadequate office staff.

Most House members have unusually high costs of living since they need to maintain two households — one back home in their district and another one in Washington. Dozens of less affluent members sleep in their offices during the workweek.

Meanwhile, members are constantly getting in trouble for things like having staffers do personal errands for them or engaging in corrupt-looking insider trading.

So in addition to reversing the decline in pay for members of Congress, America should make some provision for the housing problem, and offer an adequate level of staffing across the institution so members can get help with their policy development and their dry cleaning.

Then we should hold members of Congress to a higher standard of conduct, with curbs on outside income and stock trading. We should offer staff a real HR department. There are a million things wrong with the American political system and no silver bullet for any of them. But a good place to start is that if you want a great Congress, you need great people, and that means you need to make it a job they’d actually want to do.

2) The reason I first became a fan of Cory Booker is because he was about the only one talking honestly about the fact that truly reforming mass incarceration means thinking differently violent crime.  Then, he kind of lost me with his seemingly naive, overly bipartisan presidential campaign thus far.  But, he’s sure winning me back with rigorous proposals for gun control:

Sen. Cory Booker (D-NJ) sums up his ambitious new gun control plan in one sentence: “If you need a license to drive a car, you should need a license to own a gun.”

On Monday, Booker unveiled his proposal to tackle America’s gun problem as part of his bid for the presidency, detailing a plan that sets a high bar for the rest of the Democratic field.

His plan includes the typical Democratic proposals: universal background checks, an assault weapons banbetter enforcement of existing gun laws, and more funding for gun violence research.

But Booker’s plan goes further by requiring that gun owners not just pass a background check but obtain a license to be able to purchase and own a firearm. It’s a far more robust gun control proposal than any other presidential candidate has proposed. The idea has solid researchbehind it, and real-world experience in nine states that currently require a license or permit for at least handguns, including Booker’s home state of New Jersey.

The plan would go toward addressing a very serious issue: America currently leads the developed world in gun violence. One big reason for that is that America has the laxest gun laws — and the most guns — of any developed country. The research has consistently found that places with easier access to guns and more firearms have more gun deaths.

3) Dahlia Lithwick virtually assembles some great legal minds to ask if we are in a “Constitutional Crisis.”  Lots of varied, thoughtful responses.  But I do love Laurence Tribe’s:

Harvard Law School professor Laurence Tribe agrees that this probably isn’t the time to parse legal language: “Crisis schmisis—what’s in a word? We’re under an ongoing cyberattack from a hostile foreign power that helped install an imbecilic self-seeking con man as our leader, who committed numerous felonies to avoid being held accountable for his illegitimate election, who is encouraging ongoing attacks by that same foreign power and others, who violates his oath of office daily, and who seems secure from removal by virtue of a spineless Senate abetted by a cowardly House. Our constitutional norms are in meltdown as we watch in helpless stupor waiting for the monster to steal or cancel the next election. If this doesn’t qualify as a crisis, the word should be retired forthwith.”

4) Great Jamelle Bouie piece on the problems with the Senate.  For what it’s worth, I’ve been complaining about the fundamental unfairness of the Senate for as long as I’ve been teaching.

The Republican coalition of rural whites, exurban whites and anti-tax suburbanites may not be large enough to win the national popular vote in a head-to-head matchup with Democrats. But it covers a much larger part of the country’s landmass, giving it a powerful advantage in the Senate. And while this coalition — or its Democratic counterpart of liberal whites and the overwhelming majority of nonwhites — isn’t set in stone, it could be years, even decades, before we see meaningful change in the demographic contours of our partisan divides.

5) Thanks to EMG for sharing this piece on what it takes to count the cats in DC.  With fun infographics, too.

6) On a related note– a pretty interesting scientific effort to count all the squirrels in Central Park.

7) It’s long past time to stop sacrificing our kids to the “right to bear arms.”  It’s so morally twisted.  Kristof:

Politicians fearful of the National Rifle Association have allowed the gun lobby to run amok so that America now has more guns than people, but there is still true heroism out there in the face of gun violence: students who rush shooters at the risk of their own lives.

Let’s celebrate, and mourn, a student named Kendrick Castillo, 18, just days away from graduating in Highlands Ranch, Colo., who on Tuesday helped save his classmates in English literature class from a gunman.

“Kendrick lunged at him, and he shot Kendrick, giving all of us enough time to get underneath our desks, to get ourselves safe, and to run across the room to escape,” Nui Giasolli, a student in the classroom, told the “Today” show. Kendrick was killed, and eight other students were injured.

At least three boys in the class — one of them Brendan Bialy, who hopes to become a Marine — tackled and disarmed the gunman. “They were very heroic,” Nui said. Bravo as well to the police officers who arrived within two minutes of the shooting and seized the two attackers.

The courage of those students in Colorado echoes last week’s bravery of Riley Howell, a student at the University of North Carolina at Charlotte. Riley, 21, charged a gunman there and continued even as he was shot twice. As he tackled the gunman he was shot a third time, in the head, and killed, but he ended the shooting.

Riley was deservedly given a hero’s funeral, and presumably the same will happen with Kendrick. But their parents didn’t want martyrs; they wanted children and grandchildren. And it is appalling that we as a society have abandoned American kids so that they must die to save their classmates. [emphasis mine]

8) I think Kevin Drum is probably right on unions:

In the last 60 years, as private-sector unions disintegrated, labor’s share of national income dropped and dropped and dropped. There was a brief recovery during the dotcom boom, but that was quickly put paid. The Great Recession did even further damage, and by 2019 labor’s share had dropped by 13 percent since 1960. That amounts to about $700 billion in lost wages, or roughly $6,000 per working family.

Why did this happen? Because it could. Without unions to push back, owners of capital took a bigger share for themselves and there was no one to stop them. Nor was this any kind of accident. Throughout the entire postwar era, there is nothing—not abortion, not tax cuts, not opposition to social welfare—that Republicans have been more united and aggressive about than destroying unions. This is because the business class that supports Republicans knows perfectly well that unions are their core problem. You have to kill them off before you can get your tax cuts or your stock buybacks or your executive compensation that’s 300x the average worker.

If you want to know if someone supports the middle class, one question will do the job: do you want labor unions to regain their power? If you don’t, then like Donald Trump, you’re just faking it. Granted, it’s a scary thought for some liberals, too, since a re-empowered labor movement means that a bunch of blue-collar workers would have real power of their own and start calling a lot of the shots on the left. But what other way is there to break the power of corporations and the right?

9) And Tom Edsall asks, “Can Democrats figure out how to get unions back into the equation in 2020?”

Even as many Democrats appear to accept organized labor’s decline, Republicans recognize the crucial importance of unions and are determined to gut them further.

The conservative who may understand labor’s ongoing significance best is Grover Norquist, president of Americans for Tax Reform.

In a 2017 essay for OZY.com, “Why Republicans (and Trump) May Still Win Big in 2020 — Despite ‘Everything’,” Norquist, a longtime anti-tax, anti-labor activist, argued that continuing the right-wing’s effort to crush labor’s power will be of vital importance to the outcome of the next election…

The problem in building support for a resurgent labor movement is that many liberals and Democrats do not appear to recognize the crucial role that unions continue to play not only in diminishing the effects of inequality, but in voter mobilization and campaign finance. Unfortunately for labor, and for the future of the Democratic Party, groups that are shrinking in numbers and in financial resources lose political leverage and influence, the two commodities unions are most in need of.

What too many on the left of the political spectrum also ignore (or fail to understand) is that labor unions are inextricably intertwined with the economic condition of women and minorities — and, for that matter, of white men. In other words, Democrats make a fundamental mistake if they engage in the politics of subtraction, downgrading the priority of battered but pivotal institutions like the labor movement. They would be wise to commit to the politics of addition instead — amplifying the power of labor to lift up the most loyal Democratic constituencies.

10) OMG I loved Yglesias‘ proposal for “Medicare for Kids.”  Why aren’t Democrats doing this?

Behind the scenes, Democrats in Washington are trying to think about what they’ll do if the party wins the White House in 2021 on a Medicare-for-all platform but still hasn’t made much progress on the critical question of what taxes you’d raise to pay for it.

A natural fallback is to try to find ideas that put the country on the path to the single-payer vision without requiring nearly as much in the way of immediate tax hikes. To many, that means gravitating toward an idea that almost happened in the late stages of the original Affordable Care Act debate — opening up Medicare to a younger class of older people, either by reducing the Medicare eligibility age to 55 or at least creating a structure for the 55-and-older crowd to “buy in” to Medicare.

A much better idea, however, would be to do the reverse and create a universal health insurance program for children. It’s much cheaper, meaning it could be paid for with relatively modest and politically popular tax hikes on the rich and provide a clear, simple benefit to millions of families. New polling shows it’s an extremely popular idea. And most importantly, because kids would age out of the program rather than aging into it, they and their parents would create a natural constituency for further expansions so they can hold on to a benefit they currently enjoy and would fear losing… [emphasis mine]

The great thing from a political economy perspective is that if the beneficiaries of Medicare for Kids liked the program, they would end up having a direct personal incentive to favor its expansion.

Parents who’d loved the fact that they never had to worry about their children’s insurance would hear plans to extend the program up to age 25 or 30 as further reassuring that their kids wouldn’t end up losing out. What’s more, if the government-provided insurance turned out to be good, parents might start to want some for themselves. The basic challenges of program expansion — it costs money, people don’t like paying taxes, and special interest groups will complain — would still be there, of course, but the incentives would be aligned for success to spur program expansion.

Creating special programs for the elderly, unfortunately, has tended to have the opposite impact, and accepting a half-a-loaf strategy to extend Medicare coverage to a larger population of older people might make it harder to eventually achieve universal health care.

Medicare for Kids, by contrast, is the kind of half-measure that would actually keep the country on the path to eventually delivering a real guarantee of health insurance for everyone.

11) So meant to do a post on this.  Alas.  Anyway, love how Jennifer Victor presents Mueller on Trump’s obstruction as almost exactly how we build a social science argument:

 Volume 2 is all about the possibility that President Trump engaged in the criminal act of obstruction of justice during the investigation about his campaign.

The maneuver that Mueller uses in Volume 2 is extraordinary. It’s a social scientist‘s delight and should be used as a case example in research methods classes. Special counsel Mueller uses the logic and procedure of the scientific method to arrive at his conclusion in his investigation about the possibility of obstruction of justice. This is unusual because it is not the typical route that an attorney would use in building a case or preparing an investigatory report. In short, rather than providing evidence to support a claim of obstruction, Mueller essentially sets out to falsify a null hypothesis that obstruction did not occur.

The double-negative language that describes this procedure can be confusing. Here’s how it works. The scientific method that all scientists, natural or social, use involves a process called falsification. The method was popularized by a philosopher named Karl Popper, who in the mid 20th century wrote a book called The Logic of Scientific Discovery. Popper argues that in science it is not possible to “prove” anything; rather, scientists seek to theorize all the possible explanations for a phenomenon, and then seek evidence to disprove as many of those explanations as possible.

It’s a process of elimination. And this is exactly what Mueller does in his report. Mueller does not set out to prove that the president engaged in obstruction of justice; rather, Mueller recognizes that he is bound by the Attorney General’s interpretation of the law, which says the sitting president cannot be charged with a crime. In light of this legal interpretation, it would be futile for Mueller to build a case and demonstrate that the president should be charged with the crime of obstruction. So Mueller does something incredibly clever: He falsifies all of the alternative explanations. [emphasis mine]

12) And what Ben Wittes learned from the Mueller report:

Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture.

No, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself. And no, the investigation did not find a criminal conspiracy in the veritable blizzard of contacts between Trumpworld and the Russians. But this is an ugly story for Trump.

Here’s the key point: If there wasn’t collusion on the hacking, it sure wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public-relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona—which is to say with Russian military intelligence. And Donald Trump Jr. was directly in touch with WikiLeaks—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

Call it Keystone Kollusion.

13) Sarah Kliff on the three most important things she’s learned as a health care reporter.

14) John Cassidy, “Donald Trump’s business failures were very real.”

In May, 2019, this is all distant history, of course. But don’t let anyone tell you—not Trump, nor Newt Gingrich, nor any of the President’s other apologists—that the businesses Trump operated were successful, or that the huge losses they sustained were simply tax dodges. They weren’t.

15) Really interesting piece on how to fix poverty in the developing world.  I did not love the “liberals won’t like what I have to say” frame.  I liked it just fine.  Of course, societies without basic safety and security are going to suffer horribly and that this fact of life will dramatically reduce the potential beneficial impact of other charitable and philanthropic programs to improve the situation:

f you’re a progressive Democrat in the United States, you’re supposed to care about poverty, education, and women’s rights. If you’re a conservative Republican, you’re supposed to care about terrorism, crime, and controlling immigration. But in real life, all these issues are connected. To solve the problems you care about, sometimes you have to listen to the other side.

Here’s an example: To help the world’s poor people, you have to fight crime.

This is the work of the International Justice Mission, a human rights organization. Its founder, Gary Haugen, outlined the global challenge at an April session of the Faith Angle Forum, a conference on religion and society. In 1994, Haugen led the United Nations investigation into the Rwandan genocide. Three years later, he launched IJM. Through his work and his book The Locust Effect, Haugen makes a compelling case: Today, the principal cause of misery and stagnation in the world isn’t a lack of food or education. It’s violence and lawlessness.

In the United States, crime has sunk to historic lows. But across much of the globe, it’s rampant. The crisis isn’t just war. It’s what Haugen calls “everyday violence”: sex crimes, slavery, and theft. Based on World Health Organization data, Haugen says sexual violence and domestic violence cause more death and disability among women aged 14 to 44 than war, malaria, and car accidents combined. In Peru, he recalls, a doctor reported seeing 50 cases of rape in the preceding five days. All the victims were less than 15 years old.

These crimes are rarely prosecuted. In some countries, statistically, you’re less likely to be convicted of sexual assault than to die from slipping in the shower or being struck by lightning. In such places, ordinary people don’t expect police or the courts to protect them. Often, the police are predators. Kenya, for instance, went through a 25-year period in which, despite chronic police abuse, not one officer was convicted of murder…

The violence is bad enough. But it’s also thwarting development assistance. International organizations throw money at poor countries, often without much to show for it, in part because predators get in the way. One key to development, for example, is educating girls. But in much of the world, what keeps girls out of school is violence. It’s dangerous to walk to school, it’s dangerous to be in school, and many girls face violence at home that keeps them from leaving.

Haugen argues that lawlessness, like joblessness or illiteracy, is a form of deprivation. It’s part of a class structure. Poor people face high crime rates for the same reason they get the worst food and the worst health care. In colonized countries, Western powers designed courts and police to protect their own interests, not the public. In many places, even today, if you want protection, you have to buy it. In the developing world, according to Haugen, the private security industry is four to seven times bigger than public police forces. It’s the largest employer in Africa. [emphasis mine]

Totally makes sense to this liberal.  Let’s do something about it.

16) Tom Nichols on the overly-woke students trying to run elite universities.  Fortunately, I’ve seen only the slightest hints of this at NC State.  This does seem to exist disproportionately among the most over-privileged college students:

When did college students get it into their head that they should be running the university? The distressing trend of students somehow thinking that they’re the teachers began in earnest in the 1960s, a time when at least some of the grievances of campus protesters—from racism and sexism to the possibility of being sent to die in Southeast Asia—made sense.

A more noxious version of this trend, however, is now in full swing, with students demanding a say in the hiring and firing of faculty whose views they merely happen not to like. This is a dangerous development—a triple threat to free speech, to the education of future citizens, and to the value of a college education.

It is no surprise to find Camille Paglia, a professor at Philadelphia’s University of the Arts who has been outraging people across the social and political spectrum for three decades, embroiled in one of these controversies. Paglia proposed to give a talk titled “Ambiguous Images: Sexual Duality and Sexual Multiplicity in Western Art.” According to a letter released by two student activists, “a gender non-binary creative writing major” had “brought this lecture to the student body’s attention through social media and raised their concerns to Title IX and other University administration about the school giving Camille a platform.” This led to a group of students demanding that Paglia (who self-identifies as transgender) be removed from the faculty “and replaced by a queer person of color.”..

To some extent, unbridled and performative student activism is a disease of affluence. Young people who are working their way through school or who are immersed in difficult subjects have less time, and often less economic flexibility, to engage in protest.

Indeed, students at Brown University noticed the time-consuming nature of changing the world, and in 2016 demanded less schoolwork so that they could devote more effort to their “social-justice responsibilities.” As one anonymous undergraduate told the Brown school newspaper, “There are people breaking down, dropping out of classes, and failing classes because of the activism work they are taking on.” A senior with the wonderfully appropriate name of Justice Gaines told the paper, “I don’t feel okay with seeing students go through hardships without helping and organizing to make things better.”

17) New research complicates the push for the $15 minimum wage.  You know me– let’s follow the research and not just be ideological about this.  $15 works politically, but it does seem there’s a good case for regional variation, etc.

18) This was a really enjoyable read in Vox, “The mess that is elite college admissions, explained by a former dean: Eight things I wish people understood about my old job.”  In no surprise to anybody genuinely familiar with higher education, “5) Rankings are arbitrary, misleading, and poisonous”

19) This Op-Ed is right, “We Are Taking Religious Freedom Too Far: We have a right to practice our beliefs, but we don’t have the right to discriminate against others, or endanger their lives.”

20) In the sad, pathetic, and entirely unsurprising files, “Nearly half of white Republicans say it bothers them to hear people speaking foreign languages.”  Definitely had me thinking about Prius or Pickup.

21) Has Norway figured out youth sports?  Maybe:

Imagine a society in which 93 percent of children grow up playing organized sports. Where costs are low, the economic barriers to entry few, travel teams aren’t formed until the teenage years — and where adults don’t start sorting the weak from the strong until children have grown into their bodies and interests. Then, the most promising talents become the most competitive athletes in the world, on a per-capita basis.

I am talking about Norway…

“I like being outside and active with my friends,” Julia Stusvik-Eide, an 11-year-old from Oslo, told me at her neighborhood club as she balanced on cross-country skis with the aid of two classmates, arm-in-arm.

Julia’s comment is hardly a revelation. These are the priorities of most children, anywhere in the world. What’s distinctive about Norway’s sport model is how deliberately it tries to align with those needs.

The country’s Children’s Rights in Sport is a document unlike any other in the world, a declaration that underpins its whole sports ecosystem. Introduced in 1987 and updated in 2007 by the Norwegian Olympic and Paralympic Committee and Confederation of Sports, the eight-page statement describes the type of experience that every child in the country must be provided, from safe training environments to activities that facilitate friendships.

The statement places a high value on the voices of youth. Children “must be granted opportunities to participate in planning and execution of their own sport activities,” according to the document. They may “decide for themselves how much they would like to train,” and can even opt out of games if they just want to practice.

Want to transfer clubs in midseason? Go ahead, no penalty. Suit up with a rival club next week, if you wish.

“We believe the motivation of children in sport is much more important than that of the parent or coach,” said Inge Andersen, former secretary general of the Norwegian confederation. “We’re a small country and can’t afford to lose them because sport is not fun.”

 

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