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John Roberts: History is Calling

The U.S. Supreme Court this week confronts partisan politics and history in a way that will profoundly impact the court as an institution and largely determine the fate of the controversial Affordable Care Act (ACA) – Obamacare.

Supreme CourtIn the curious way that American political history has of not exactly repeating itself, but of regularly returning to the same themes, it is fascinating to consider how the Supreme Court handled a similarly contentious issue 78 years ago. The issue then was different – state minimum wage laws in 1937 versus health insurance today – but the impact on the court as an institution and on American politics is still instructive. Some of the parallels are striking.

If Chief Justice John Roberts hasn’t done so he might want to read up on the back story in the case of West Coast Hotels Co. v. Parrish. The leadership exercised by one of his illustrious predecessors, Charles Evans Hughes, just might be useful for Roberts this week, since how the Chief handles the Obamacare case – King v. Burwell – may determine not only his own legacy but also the court’s standing among American voters.

The Supreme Court became the most controversial issue in American politics in 1937. Re-elected in a landslide in 1936, early the next year Franklin Roosevelt took dead aim at the Supreme Court that had dismantled key fdr.gi.topparts of his New Deal economic recovery program. In one of the most audacious proposals ever suggested by an American president, Roosevelt sent legislation to Congress – a Congress overwhelmingly populated with his fellow Democrats – that would have added six new justices to the Supreme Court. In one sweeping legislative action Roosevelt proposed to both liberalize the Court and at the same time neuter a co-equal branch of the federal government.

Through the long, hot and politically disagreeable spring and summer of 1937, Democrats fought with each, with their president and with Republicans over whether to give FDR what he dearly wanted – a very conservative Supreme Court remade overnight into a liberal supporter of his program. The American Bar Association, the nation’s major newspapers, organized labor and farm groups chose up sides and by the time the fight finally ended Roosevelt had suffered the biggest political defeat of his presidency. The Democratic Party that should have been at the zenith of its power was ripped apart and Roosevelt would never again command a working majority in Congress for his domestic agenda, but the Supreme Court as an institution remained unchanged.

The West Coast Hotels case was part of the reason. The Parrish in the case was Elsie Parrish, a elsiechambermaid at the Cascadian Hotel in Wenatchee, Washington, a hotel owned by the West Coast Hotels Company. Elsie, joined by her husband, filed suit contending that she received sub-minimum wage compensation for the work she performed and she sought to recover the difference between what she was paid and the minimum wage established under Washington state law.

The question presented to the court when the case was heard late in 1936 was whether Washington’s state minimum wage law “violated the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment.” In 1923, in a similar case, the Supreme Court had overturned a District of Columbia minimum wage statute on grounds that it violated the Fifth Amendment’s due process clause. Early in 1936, the Court struck down a New York minimum wage law in a case that was almost exactly on point with the issues in the West Coast Hotels litigation. The New York decision was widely seen as a blow to New Deal-era reforms – FDR was incensed by the Court’s ruling  – and the case seemed to offer further proof that the Supreme Court was hostile to nearly any type of regulation of business.

When the Washington State case came before the Court in December 1936 it wouldn’t have taken a clairvoyant to predict the outcome. But in the interval between the two nearly identical 1936 cases, something changed. What changed had been entirely political. Roosevelt was overwhelmingly re-elected by American voters who were clearly showing their support for his policies. In simple political language the conservative majority on the Supreme Court suddenly found itself dramatically at odds with widespread public sentiment.

A Switch in Time…

When the West Coast Hotels case came before the court in December 1936 – remember this was after FDR’s big re-election win – Chief Justice Hughes, who had been in the minority in the New York case,245px-Owen_J._Roberts_cph.3b11988 prevailed upon Associate Justice Owen Roberts – no relation to the current Chief, but like him a Republican appointee to the Court – to change his mind and wipe out the precedent that the Court had re-affirmed just ten months earlier. With the Chief Justice writing the majority opinion, the court upheld the Washington state law – the vote was 5-4 – and Elsie Parrish, the Wenatchee chambermaid, found that the state minimum wage law really did apply to her.

Next comes one of the best examples I know of how timing impacts politics. While the West Coast Hotels case was heard just before Christmas 1936, and Justice Roberts indicated in a conference with fellow justices two days later that he would change his mind, the decision in the case wasn’t made public until the following March, weeks after Roosevelt proposed his sweeping and controversial plan to reshape the Supreme Court.

To the public and press it looked like the Court was knuckling under to political pressure from a hugely popular president, when in fact the Court, under Hughes’ skillful leadership, had already made up its mind to directly reverse its earlier precedent in minimum wage cases. Still it was widely said that Robert’s switch helped save the Supreme Court with one wag saying, “a switch in time saved nine.” The great historian William Leuchtenburg called it the “greatest constitutional somersault in history.”

ihughec001p1In reality, Hughes was a shrewd student of politics and had correctly read the election returns as a strong indication that public opinion was moving in the direction of a more activist role for the government in regulating the economy and American business. Hughes, very much a Republican and conservative, even admitted that the Court could no longer serve as “a fortress” against public opinion. In order to head-off the kind of sweeping political change that Roosevelt and others had in mind for the Court, Hughes knew his beloved Court had to change and lobbying Justice Roberts gave him his fifth vote. Hughes put his considerable muscle as a great Chief Justice behind his belief that the Court had to change in order to sustain its integrity and independence. Subsequent decisions by the Court in 1937 to uphold the Social Security Act and the National Labor Relations Act further helped doom Roosevelt’s court packing plan and at the same time helped maintain public confidence that the Court was able to respond to national problems during the greatest economic crisis the country has ever faced.

King v. Burwell…

The case at question before the Supreme Court this week – King v. Burwell – turns on just four words buried deep in the controversial 955 page legislation passed by Congress in 2010. The challenge to the ACA centers not on questions of constitutionality or the application of Congressional or Executive authority, but whether every qualified American is entitled to an insurance subsidy whether they enrolled for health insurance through a state or a federal insurance exchange seems certain to thrust the court into the middle of the most contentious political issue in recent history.

In taking this case the court has decided it must rule on what Congress meant when it wrote those four words – “established by the state” – into the law.

As David Cole wrote recently in The New York Review of Books: “The challengers’ statutory argument is deceptively simple. A subclause of the tax code setting forth a formula for calculating federal income tax credits provides that the amount of the credit depends on the number of months the taxpayer has been enrolled in a health insurance plan purchased on an insurance exchange ‘established by the State.’ Since an exchange established by the federal HHS is not an exchange ‘established by the State,’ they maintain, the law precludes subsidies for all residents of the thirty-four states that have exchanges created by HHS. The government counters that exchanges ‘established by the State’ is a legal term of art, and when read in conjunction with other parts of the ACA, it encompasses both exchanges that states themselves established, as well as exchanges that the states chose to have HHS create for them in their respective states.”

As a practical matter the health insurance exchanges in 34 states operate on the platform established by the federal government. If the court decides those exchanges are not subject to the subsidies – boom. Consider it the nuclear option. An estimated 7.5 million people in those 34 states will lose their subsidies, not be able to afford insurance and the great Obamacare experiment will tip over like Humpty Dumpty falling off that famous wall.

The committed opponents of the health insurance law will, of course, celebrate the death of the act they have tried to destroy once before in front of the Roberts’ court and more than 50 times on the floor of the U.S. House of Representatives. Should those challenging the law prevail it will be seen correctly as a huge victory for conservatives who hate Obamacare and a crushing defeat for President Obama’s signature legislative accomplishment. The impacts on the Supreme Court could be even more earth shaking.

RobertsRoberts is the man in the hot seat, just as Charles Evans Hughes was in 1937 and we already know he did some personal legal jujitsu to accommodate his own very conservative views to the political will behind the ACA when he cast the deciding vote to uphold the Act when it first came before his Court. In fact, there is one school of thought that Roberts has already found a way to uphold Obamacare from the latest challenge by invoking a very conservative legal principle – standing. It may well be that the plaintiffs in the King case don’t have the legal standing to even bring the case. We’ll see.

Hughes’ task in the New Deal-era was to save the Court from the kind of political interference Franklin Roosevelt had in mind. Roberts’ task today is to keep the Supreme Court, with its conservative majority, from using an extraordinarily narrow issue to kick the increasingly popular health care law in the ditch. Such a ruling would certainly please the legion of Obamacare haters, but at the cost of denying health insurance to several million Americans who now have coverage.

Conservatives who hope the Court will kick things in the ditch decry what they call “executive lawmaking” that “poses a severe threat to the separation-of-powers principles enumerated in the Constitution.” And they contend the president “has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.”

But in the King case the dangerous behavior – you might read judicial activism – would be for a Supreme Court to impose its own notion of how an IRS rule ought to be applied; replacing its judgement for that of the branch of government changed with actually carrying out the terms of the law.

Long-time Supreme Court watcher and New York Times columnist Linda Greenhouse argues that nothing less than “the honor of the Supreme Court” is at stake in the King v. Burwell decision. “To reject the government’s defense of the law,” Greenhouse wrote recently, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”

At pivotal moments in American history various Chief Justices have guided the Supreme Court through some very hard cases. Hughes did it in the 1930’s. Earl Warren did it in the 1950’s with the Brown v. Board of Education ruling that separate but equal simply could not be Constitutional. Warren Berger did it in the 1970’s when he lead a unanimous Court that required Richard Nixon to turn over his White House tape recordings. In each case the integrity of the Court, as well as its ability to transcend, while at the same time respond to politics, was at stake. It’s also worth noting that in these historic cases a Republican chief justice appointed by a Republican president moved the Court in a new and important direction, while also keeping the Court out of the intense crossfire of partisan politics.

The same issues are at stake this week. Ironically, in reading the old West Coast Hotels decision, I noticed that one of the attorneys of record was named – John Roberts. For the Chief Justice history really is calling.


Playing the Hand

Patient-ProtectionI’m not sure, but this photo may be the last time Democrats smiled about the Affordable Care Act or, if you prefer, Obamacare. President Obama put his signature on his signature legislative accomplishment on March 23, 2010 and, until the last few weeks, from a political standpoint the news has been pretty awful.

First the admissions: Democrats – thank Nancy Pelosi as well as the president for this – completely lost control of any coherent message about the law. Republicans did a masterful job of characterizing the ACA as government run amok. Obama, so the story goes, has Socialized health care in America and shredded the Constitution in the process. Sarah Palin chimed in with her nonsense talk about “death panels.” Democrats failed to respond or failed to respond effectively. Obama fumbled, screwed up, mislead, fabricated (chose your word) the business about liking and keeping your health plan. The roll-out was a first-class mess and we all know about the stupid website. Fundamentally the law, thanks to log rolling in Congress with the drug companies, the device manufactures, doctors, hospitals and insurance companies, is a massively complicated pile of legalize. It was almost as though the president and his supporters were saying, “We could tell you how it will work and how you will benefit, but you’d have to get sick first…”

More importantly from a political point of view the supporters of the law, chiefly including the Commander-in-Chief, never adopted a coherent, consistent, engaging message that might have allowed them to talk to the American people about an issue that has been on the agenda of every Democratic president since Franklin Roosevelt. The debate became about process, ideology and partisanship and not about a better more secure future.

In politics, as in corn flakes, you can’t sell an idea without a believable message. The failure to offer a coherent, believable story about the law is nothing short of political malpractice. Critics will say, of course, that the law is such a mess that it can’t be defended or marketed, but I don’t buy that. Even George W. Bush, initially at least, sold the invasion of Iraq. Creating a system for millions of Americans to have health insurance and a more secure life is surely an easier sell than a war.

Still, four years later the law is the law, upheld by the Supreme Court (or at least by five justices), a survivor of a hundred different efforts by Republicans to repeal it or, better yet from their perspective, use it as a blunt instrument to pummel Democrats in another mid-term election. Apparently – crank up the irony meter – Americans now hate the law so much they have signed up in numbers that have even surprised the law’s biggest supporters. The polls tell us the law is a huge loser – although repeal is even more unpopular – and yet the GOP has placed nearly all of its mid-term eggs in the “we hate Obamacare” basket. All of the party’s 2016 hopefuls have bought into the notion that Obama’s law is the worst things since, well, maybe since Social Security, yet they offer nothing in the way of a better alternative.

In one of his pithy and incisive essays Garry Wills points out that supporters of the law will likely never turn the opponents around. Obama, Wills writes, “made the mistake of thinking that facts matter when a cult is involved. Obamacare is now, for many, haloed with hate, to be fought against with all one’s life. Retaining certitude about its essential evil is a matter of self-respect, honor for one’s allies in the cause, and loathing for one’s opponents. It is a religious commitment.”

Wills reminds us that Social Security was once almost as hated as the ACA, but somehow nearly 80 years on it still stands. “Repealing Obamacare will eventually go the way of repealing the New Deal,” Wills opines. “But the opposition will never fade entirely away—and it may well be strong enough in this year’s elections to determine the outcome. It is something people are willing to sacrifice for and feel noble about. Creeds are not built up out of facts. They are what make people reject all evidence that guns are more the cause of crime than the cure for it. The best preservative for unreason is to make a religion of it.”

The editorial page of the Wall Street Journal with an almost daily discourse on the “failures of the law” or any given George Will column easily serve as the Bible for this new religion. Will’s most recent column excoriating the law and the president concludes with this sweeping indictment of all things Obama: “progressivism is…a top-down, continent-wide tissue of taxes, mandates and other coercions. Is the debate about it over? Not quite.” Reads like a sermon to me.

But let’s talk politics. If Garry Wills is right (and George Will is his proof point) and it follows that Republican voters who have made a religion out of hating Obamacare are the most likely to turn out and vote in the November Congressional elections, what are Democrats to do?

They have two basic choices: Continue to flounder around and try to pretend they can whistle their way past the political graveyard without defending Obama’s law or they can embrace the obvious and begin – finally – to vigorously defend the law and its impact. One of this year’s imperiled Democrats, Louisiana Sen. Mary Landrieu, has adopted Option Two.

“It’s a solid law that needs improvement,” Landrieu told the Washington Post. “My opponent [Republican Bill Cassidy] offers nothing but repeal, repeal, and repeal. And even with all the law’s setbacks, we’re seeing benefits for thousands of people in Louisiana.”

Landrieu continued, “I think the benefits that people have received are worth fighting for.” She citing an end to discrimination against preexisting conditions and extended coverage for young adults on parents’ plans. ”I think Bill Cassidy is going to be at a distinct disadvantage. He has insurance, but he’s also denying it to the 242,000 people” who would qualify if Louisiana expanded Medicaid as it can opt do under the Affordable Care Act.

Her opponent, Landrieu says, “also wants to take coverage away from tens of thousands who have gotten it for the first time.”

There is an old adage in politics that holds “being for something is better than being against something.” Democrats don’t have a choice. They can try to campaign this year by being for a law that admittedly is very controversial and almost universally misunderstood, but that is also of obvious advantage to millions of Americans or they sink again into the defensive crouch they have largely adopted since that smiling day back in March 2010.

Republicans are agin’ it. We know that for certain. Yet, voters must be just as confused about where Republicans stand on issues – providing health care for millions of uninsured, expanding Medicaid, keeping young folks on their parents insurance plans longer and providing coverage for preexisting conditions – as they are confused about what is and isn’t part of the controversial law. This is ground, as Sen. Landrieu suggests, for a real election year debate.

Democrats may not win a religious fight this year over Obamacare, but they won’t even have a chance unless they start throwing a few punches rather than trying to absorb those the other side will continue throwing. Defending a law that more than eight million Americans have embraced and that holds out the hope for a much improved quality of life for millions more seems like something worth fighting for because it really is better to be for something than against everything.

Many Republicans of the generation that created Social Security never came to fully embrace the program, but time, events and public opinion overtook them. Franklin Roosevelt, the father of modern American politics, loved to taunt his opponents by asking them what they would do differently and whether they had an alternative. Those are still good questions.

I’m Marc’s Prostate


As a kid growing up it always seemed that we had a daily newspaper in the house, as well as a magazine or two. We watched the network evening news, of course, everyone did, but for real information we turned to print. Very old school. My Dad was particularly fond of Reader’s Digest and would often consume the entire contents of the latest edition in one sitting. The articles were mostly short, crisply written and, in matters of politics, almost always had a right-of-center slant.

The Digest also had jokes that could be repeated safely in polite company. I particularly remember pages of jokes called “Humor in Uniform” (for the World War II generation like my parents ) and “Life in These United States,” humorous little stories about everyday life.  Sometime in the 1960’s the Digest also started publishing a series of short articles on various aspects of human health all written from the perspective of the vital organ featured. I distinctly remember Dad pointing out to me that I needed to read and absorb a little feature entitled “I’m Joe’s Heart.”

“I’m certainly no beauty,” Joe’s Heart says writing in the first person (or organ). “I weigh 12 ounces, am red-brown in color, and have an unimpressive shape. I am the dedicated slave of —well, let’s call him Joe. Joe is 45, ruggedly good-looking, has a pretty wife, three children and an excellent job. Joe has made it. Me? I’m Joe’s heart.”

Joe’s heart goes on to report that Joe probably eats too much fat, has gained weight, smokes and doesn’t exercise enough. Sound familiar? It was a good, gentle and authoritatively delivered message that remains as appropriate today as it was to the Don Draper generation in the 1960’s. Reader’s Digest pieces on “Joe’s Liver” and “Joe’s Kidney” followed. I don’t recall that there was a Reader’s Digest piece on Joe’s Prostate this was, after all,  way before WebMD and “men’s health” (and women’s, for that matter) wasn’t much discussed in the polite company where Dad told his jokes.

Things have changed for the better in that regard with the Internet full to overflowing with good, authoritative information on “Joe’s Prostate,” or in the case that I have become most familiar with – my prostate.

Like more than 200,000 American men annually I was diagnosed recently with prostate cancer. Next to skin cancer, prostate cancer in the most commonly occurring cancer among American men. The disease claimed more than 28,000 lives in 2009, the last year for which we have the most complete figures. There is almost truth to the line I’ve heard and now use myself – “if you live long enough, I’ll get prostate cancer.” Prostate cancer is indeed widespread and it takes a particular gruesome toll among African-American men.

My case – special to me, for sure – nonetheless seems fairly typical in many ways. My own concerns about heart health lead me some years ago to regularly monitor blood pressure, cholesterol and other blood markers. Often these simple blood tests will also include the somewhat controversial screen for prostate cancer – the PSA test, or  prostatic specific antigen. Early this year my PSA level took a jump in the wrong direction. A re-test confirmed the increase and signaled cause for concern. A number of good and caring health care professionals advised a biopsy of, what until this spring had been, my somewhat mysterious prostate. The biopsy, conducted in a doctor’s office, confirmed cancer.

Like millions of other Americans I now know what it’s like to have a doctor straightforwardly tell you – “you have cancer.” Wow. Didn’t see that coming. It is a moment of coming face-to-face with your own mortality. One’s attention is immediately fixed.

Like any unwelcome news there was for me, at least, a period of denial. There must be some mistake, right? Cancer doesn’t run in the family. From a health standpoint I haven’t been behaving that badly. Maybe too much red meat and too few veggies, but I get my exercise. What gives? Soon enough denial gave way to questions about what can be done to treat the unwelcome visitor in the nether regions of the male anatomy? Answering that question became a research mission of the kind I have never before undertaken.

I offer only two pieces of advice in this little prostate post with the first being the importance of becoming your own best advocate when confronted with any health challenge. Doctors and other medical professionals are (generally) wonderful people, committed, smart, caring and often overwhelmed. They exist not just to treat your condition, but to be a walking, talking sources of first-rate professional information. In order to take full advantage of their knowledge, however, I’m convinced you must do your own homework and engage in the development of your own treatment strategy. Knowledge really is power and information about your health care options truly is empowering.

Since April I’ve spent hours reading, consulting friends who have dealt with the same issue, and quizzing health care professionals trying to learn about what I now consider my favorite gland. I gave that gland up to surgery a little over a week ago after it became clear to me that what the surgeon’s call a “radical prostatectomy” was my best option given factors like age, overall health and the state of my cancer. The surgery, again from my perspective, was a very big deal. Thousands of men undergo this treatment every year, but facing major surgery, time in hospital and recovery was a brand new experience for me.

Friends and family faced this new challenge with me and 10 days on I’m feeling better and better. There will be months ahead of coping with and overcoming the undesirable side effects of prostate removal, but thanks to early detection, superb medical care and those who have helped – they know who they are – I feel today like a 60 year old guy with a new lease on life.

Second piece of advice: don’t be confused about the controversy and debate over the utility of PSA testing after age 40. Every male needs to have enough information in order to formulate a personal point a view on this central issue of male health. In my case, because a savvy family practice doctor has rather routinely checked my PSA levels, which led to my early diagnosis, I am an advocate of the checks on a regular basis. The rap against the test is that it’s not precise, produces false positives and causes many men to undergo expensive testing that may not be needed.

In short, whatever you decide for yourself, don’t be a victim of a lack of knowledge. Take charge of your own health. Decide what works for you. It just might save your life. In my case I’m convinced regular testing and early diagnosis did save my life.

Finally to all the family and friends who have sent endless good wishes my way for the last couple of months I can only say – thanks a million. In the busy world of the 21st Century it is all too easy to take for granted, or not fully appreciate, the awesome power of people who take the time and trouble to care. Take it from me: it means the world.

Late last week a call from my surgeon confirmed that the pathology work up on my former prostate and the other tissue he removed during surgery was negative. My cancer had not spread beyond the prostate. In the textbooks they call that a good outcome.

My personal brush with the disease that is described as the “most rapidly rising” in most countries around the world was both frightening and enlightening. I am richly blessed to have had access to (and been able to afford) world-class health care and the tools to seek out information upon which to make life changing (and saving) decisions. I come away with a new appreciation for the American public health crisis of obesity, poor nutrition and lack of access to care and I’m convinced that knowledge and awareness of a whole range of health care issues is at the heart of a healthier country.

I’ve always taken good health for granted. I now consider it a gift, indeed a miracle.


Roberts: The Chief Makes History

There will be days and days of analysis – some of it even important – of today’s historic Supreme Court decision on the Affordable Care Act, or as those who hate the law say – Obamacare. We’ll hear every possible interpretation and then some.

Here is my initial take on one sliver of the story; the fact that Chief Justice John Roberts authored the majority opinion upholding the law, went against four other conservatives on the Court with whom he often finds compatibility and maybe – just maybe – wrote himself firmly into the history books.

I think most Court watchers would say that a Chief Justice – any Chief Justice – always wants to be in the majority. Roberts worked hard to get there even while taking pains to throw a rhetorical political bone to those who will see him as an updated version of former Justice David Souter, an appointee of the first George Bush who served to infuriate many conservatives.

As Roberts famously said during his confirmation hearing, “Judges are like umpires. 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 ball game to see the umpire… I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Today he made good on his umpire statement and admittedly, while it is way too early to make definitive judgments, Roberts has likely also influenced his place in history. In the same way that Chief Justices Charles Evans Hughes in the 1930’s and Earl Warren in the 1950’s ultimately led their Court’s in a series of landmark rulings; rulings that generally supported a more expansive view of federal power, Roberts has parted company with the right wing of the Court and perhaps charted a new course for himself.

Roberts has clearly antagonized conservatives and permitted, at least in one very important case, a more expansive role for the government in health care. He also did it without affirming a more expansive interpretation of the Commerce Clause, which really would have wounded the right.

It’s fun, but ultimately futile, to speculate about the inner dynamics of a Court of such sharp divides and strong personalities, but I can speculate that it would have been interesting to overhear the conference where the Chief told Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy that he would write the majority opinion siding with the Court’s four liberals.

The health care story, with all of its political and policy dimensions, is far from a finished story. There is much more to come. But speculating again, when the history of this decision is ultimately written it may well describe John Roberts as the guy who cast a deciding vote on a law that, with all its faults, was aiming to provide health insurance coverage for every American, a goal of many Americans since at least Teddy Roosevelt. Fifty years from now Roberts’ opinion may well be seen as putting him on the right side of history.

Roberts is obviously a serious man and no one reaches the pinnacle of judicial power in the United States who does not appreciate the unique role in our system played by the Chief Justice of our Supreme Court. Roberts has surely read the history and knows we can count the truly great Chiefs on three fingers – Marshall, Hughes and Warren.

History treats that trio well because each led the Court in new ways during tumultuous times and with a determination to break new ground. Each was a highly political judge and passionately independent. Each evolved over time on the bench and ultimately each rejected the notion that the Constitution is a purely static document that can be applied in 2012 the same way it was in 1787.

If nothing else, Chief Justice Roberts may find – he’s a young and energetic 57 with many years left to lead a Court – that his historic decision in NFIB v. Sebelius is a liberating moment for him. Roberts may now have the liberty to find his own path to history, separate from either the four liberals or four conservatives on his Court, and that journey may have begun today.

P.S. – I predicted in passing earlier this week that the Court would strike down the Affordable Care Act. Like Winston Churchill said, I have often had to eat my words and always find it a wholesome diet!


Supreme Power

Courts, Controversy and Conservatives

There is an old and respected approach to judicial review of controversial and essentially political issues that holds that judges should do almost everything possible to avoid wading into the dense thicket of politics.

If Chief Justice John Roberts and his fellow conservatives on the U.S. Supreme Court were really conservative they would rule on the controversial Affordable Care Act (Obamacare) on the narrowest possible grounds. They might even seriously considered not ruling on the merits of the law under the old and accepted principle that the case is simply “not ripe” for adjudication since no one – at least not yet – has been “harmed” in the legal sense by the health insurance mandate and other aspects of the still new law.

Hardly anyone thinks either of those approaches is likely from the Roberts Court, particularly after last week’s marathon hearings. You will get even money today that Roberts will lead his thin 5-4 conservative majority in the direction of at least ruling the mandate unconstitutional. The odds are a bit longer that the Court will throw out the entire law. As they say, time will tell.

What interests me today is what President Obama, the former constitutional law professor, will do if the high court strikes down all or part of his signature accomplishment? A little history may be instructive; history I suspect Professor Obama knows well.

The most striking parallel to the current situation happened in 1935. The then conservative dominated Supreme Court declared unconstitutional the signature domestic piece of President Franklin D. Roosevelt’s legislation to battle the Great Depression. Chief Justice Charles Evans Hughes, every bit as much if not more a politician than Roberts, assembled a unanimous Court – including three real liberals – to deep six key features of FDR’s National Industrial Recovery Act.

Roosevelt was brought low by a famously modest case –Schechter Poultry Company v. United States – a decision that prompted the great liberal Justice Louis Brandeis to remark to an FDR associate that the case marked the end of “this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Given that sentiment, Brandeis, were he on the Court today, might just be a vote against Obamacare.

Roosevelt’s reaction was, of course, to blast the Court as living in “a horse and buggy” era with regard to the Commerce Clause of the Constitution and after his re-election FDR attempted, with disastrous consequences, to enlarge the Supreme Court. Roosevelt’s ideas about “judicial reform” were so outrageous that no president since has dare even suggest action to limit the scope or change the make-up of the Supreme Court. Instead we now fight epic battles over every new justice who is appointed and partisan political considerations, never far removed from judicial nominations, is now guaranteed to be front and center.

Obama will not, I predict, pull a Roosevelt. He knows, as the wise Jon Meacham wrote recently, “Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.”

Obama could, in theory, dust off some really old ideas and suggest a Constitutional amendment, as the great Wisconsin Sen. Robert La Follette did in the 1920’s, that would allow Congress to overturn Court decisions or, under certain circumstances, put Supreme Court decisions up to a popular vote. Of course, President Obama won’t do anything of the sort.

Obama is then really only left with the power of persuasion. He might suggest, as one wag did, that when the opportunity for insurance coverage for millions disappears they take their complaints to Antonin Scalia. Better yet, Obama could begin a real national conversation – including involing United States Senators who approve Supreme Court nominees – about the kind of Supreme Court the nation needs in the 21st Century.

You have to hand it to Republicans, they have been running against the Court for years. What prominent GOP lawmaker doesn’t have the talking points down regarding “activist, liberal judges” who legislate from the bench? That line of political positioning has been enormously successful in positioning a very conservative majority on the current Supreme Court to get away with precisely what conservatives have been critical of for years – legislating from the bench.

Set aside for a moment the merits of the Affordable Care Act and merely consider what some of the justices from the left and right said last week. As columnist E.J. Dionne noted, Justice Samuel Alito sounded like a House subcommittee chairman quoting Congressional Budget Office figures and wondered whether the government could mandate that we all have burial insurance, while Scalia went off with a weird analogy about the government mandating broccoli. The liberals didn’t comport themselves much better with some commentators noting that they tried to come to the rhetorical aide of the Obama Administration’s Solicitor General who had trouble at times articulating the best arguments in favor of the law.

But judges aren’t supposed to be super legislators, they shouldn’t care about policy or vote counting (beyond counting to five) and they have no business trying to bail out a lawyer who is fumbling his case. Such behavior paints the entire Court with an activist brush. What is needed with the current case, and I would suggest with the money in politics case Citizens United and the who will be president case Bush v. Gore is real, reasoned judicial restraint.

The Court has a legitimate role in the health care case in defining – or refining – the scope of the Commerce Clause, but the justice could also acknowledge the obvious. We’ll have an election in a few months where Obamacare will be one of the fundamental issues. All the Republican candidates say they want to repeal the law. Democrats will fight to keep it. That is the kind of messy and important debate we have elections to resolve. Real judicial restraint would find the Supreme Court – conservatives and liberals – searching for a super majority way to rule narrowly and leave the politics to those who are elected to vote on policy questions.

If the Court overturns the health care legislation, the president will undoubtedly take issue with the decision, but he ought also to use the moment to educate more broadly about how judges should approach their jobs, the Court’s sacred status notwithstanding.


What We Need

In a Presidential Candidate

Mark Twain is not remembered as a partisan political person, but more as an equal opportunity abuser of politicians of all stripes.

“It could probably be shown by facts and figures,” Twain wrote, “that there is no distinctly native American criminal class except Congress.”

Twain set equal opportunity aside in 1880 when he openly and enthusiastically supported James A. Garfield, a Republican, for the presidency in what turned out to be one of the closest presidential elections in American history. Garfield, a Civil War hero and general from Ohio, beat Winfield Scott Hancock, a Civil War hero and general from Pennsylvania.

Ohio and Pennsylvania were swing states in 1880, as they are today. Garfield won both states and the popular vote by about 10,000 votes. One must believe Mark Twain’s support helped put him over the top.

While seriously supporting Garfield, Twain also humorously wrote a short and very funny essay in 1879 about his own candidacy for the White House.

The first line of the essay was straight forward: “I have pretty much made up my mind to run for President.” Twain went on: “What the country wants is a candidate who cannot be injured by investigation of his past history, so that the enemies of the party will be unable to rake up anything against him that nobody ever heard of before.”

No word on whether he had Newt Gingrich’s second wife in mind when he wrote those words.

Twain was arguing, in his funny way, what has become conventional wisdom about a candidate with, well, a history. The rule has become: Put out the bad news yourself before the other side can smear you with it.

So, Twain, tongue firmly in cheek, blew the whistle on himself admitting that he had “treed a rheumatic grandfather” for his snoring; that he ran away from combat at Gettysburg not because he didn’t want the Union saved during the Civil War, but he just wanted someone else to save it; and that he was “no friend of the poor man.”

“These are the worst parts of my record,” Twain said, and, of course, warts and all he recommended himself “as a safe man” for the presidency.

Mark Twain knew something that too many politicians today don’t know – humor is the great humanizer. Used wisely it is powerful stuff. Used badly it’s like unstable dynamite and it blows up. The smart candidate knows the difference.

Lincoln had a great sense of humor, as did Franklin Roosevelt and Ronald Reagan. John Kennedy could tell a funny story, often at his own expense, which is the best kind of humor. Mark Twain was telling us in 1879 – we need more funny politicians.

Mark Twain also said in his presidential candidate essay: “The rumor that I buried a dead aunt under my grapevine was correct. The vine needed fertilizing, my aunt had to be buried, and I dedicated her to this high purpose. Does that unfit me for the Presidency? The Constitution of our country does not say so. No other citizen was ever considered unworthy of this office because he enriched his grapevines with his dead relatives. Why should I be selected as the first victim of an absurd prejudice?”

It’s not always true that the funniest candidate wins, but more times that not he – or she – will win. Mark Twain should have run. He would have been a riot.

Humor is a mirror into a person’s sense of self. If you can make a joke, tell a story on yourself, be aware of how you are seen by others, it can be a great asset. Come the fall,when the major party candidates are finally set, the guy who best gets this political truism will have a major advantage. A candidate need not be Mark Twain, but a little of his sense of humor is worth a lot of votes.


2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”



“When I was a boy of fourteen , my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished by how much he had learned in seven years.” – attributed to Mark Twain.

Hugh Billingsly (aka Ward Cleaver) must be smiling that knowing smile somewhere this weekend. He learned a lot as Wally and the Beav were growing up. Such is the lot of dads.

Mark Twain may or may not have ever uttered that quote, but my dad used to love to repeat it followed by a twinkle and a little laugh. I think now he must have been signaling my brother and me that “you boys will understand one day…” Yup, dad was right again.

My dad never played golf. He wasn’t a hunter or fisherman. He didn’t shop well. He tended to the yard. He painted things. He played catch pretty much whenever called upon. He always flipped the car keys your way at the drop of a hat. He could fix most anything, a trait he did not, unfortunately, pass along to me. I don’t think he ever went to the garage for a tool. That was work for a son, which is why I hate to this day to go to the garage for a tool that I probably won’t be very good at using. He knew about cars and airplanes and, I realize now, women. He was old school with women, particularly with mom. He’d stand when a woman entered the room. He’d take his hat off in an elevator, and he always wore a hat. He would hold a door and offer a compliment, easily and genuinely.

He loved jokes. I repeat them today even as I recall thinking they were corny or silly when he first told them and then repeated them again and again. My favorite one is, nope, I can’t repeat it on a family blog. Dad could give a great speech, tell a great story and make a great point. He loved Will Rogers and could quote the great cowboy humorist. He wasn’t very political, just very practical. Everyone, I mean everyone, liked dad.

Dad loved baseball and was very fond of the St. Louis Cardinals. He once saw them play two World Series games and loved to tell that story. Dad loved to read and almost anything; magazines, books, newspapers, the backs of menus. He liked his VO with just a little water. Wasn’t much of a beer drinker. Wasn’t fond of many foods, but for reasons that still escape me loved my mother’s meatloaf. And saltine crackers. He liked his steak very, very well done. I remember cringing when he’d tell a waiter to “bring me the charred remains” of  a once tender New York steak.

Dad was a member of the so called “greatest generation,” but he wouldn’t have thought of referring to himself that way. The war and the Depression were the life changing events in his too brief life. I wish I would have been smart enough, when he was getting much smarter as I aged from 14 to 21, to ask him more about it. He didn’t say much, but he knew a lot. He was among the smartest guys I have ever know. It’s taken me a good part of my life to figure that out.

He loved his own dad, I think, the way I love him. Much to my regret, I never knew my grandfather, but know enough to know what I missed. I think about and miss both of those good old guys this weekend as I watch a little baseball, read a little, try to find the right company to tell that story of his and stay away from the garage.

Happy Fathers Day.

The Judges Decide

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.

The Great Twain

TwainClothes make the man. Naked people have little or no influence on society. – Mark Twain

Of all the incredibly funny things he said, that is my single favorite Mark Twain quote. I smile every time I see it.

April has been Mark Twain month. I’ve seen articles about his death 100 years ago this month. His love of baseball. He was an investor in the Hartford Dark Blues, a team that folded after one season. The local newspaper said his investment in the shaky enterprise had firmly established his reputation as a humorist. Ouch.

There are an embarrassment of new books about Twain. Stories about the fabulous house, now a museum, he built in Hartford. Controversy over naming a cove on Lake Tahoe after him. And always the quotes.

“I am only human,” he said, “although I regret it.”

No less a writer than Ernest Hemingway said, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn…”

One of the best new books is Mark Twain: Man in White by Michael Shelden. Shelden tells the story of Twain’s last years as a celebrity and how he came to wear the snow white suits we now identify as part of his “brand.” I have been reading the book and completely enjoying the story of a man of immense talent, big ego, huge humor and breathtaking originality. Shelden makes the case that Twain managed his own image as carefully as his prose.

My friends at the Idaho Humanities Council are devoting their summer institute for Idaho teachers to Why Mark Twain Still Matters. Watch for more information on public events during the week-long event in July.

Before Mark Twain there never was anything like him and there hasn’t been since. He may have been the ultimate American original. Go read him again and read about him. You’ll be better for it and, as Mom would say, “it will be good for you,” but most of all it will be great fun.

Much of what Mark Twain said more than a hundred years ago still seems relevant, like this which wasn’t said, but might have been, about Washington, D.C. and Goldman Sachs.

“The political and commercial morals of the United States are not merely food for laughter, they are an entire banquet.”

Oh, yes, Twain coined the term “Gilded Age” when talking about the economic excesses of the late 1800’s. The guy has been dead for a century, but he’s as fresh as this morning’s headlines.