October 9, 2018--Swing Time At the Supreme Court

Adam Liptak, who covers the Supreme Court for the New York Times, in a postmortem after the confirmation of Brett Kavanaugh, wrote that with the departure of Justice Anthony Kennedy, the court is now left without a swing vote. Expect, he says, very conservative decisions, among others, about abortion (severely restrict or end them), affirmative action (sack it), redistricting (what states are doing is OK), and voting rights (not to worry too much about them).

While I'm not so sure Kennedy did all that much swinging, it is true that on subjects such as gay rights he usually voted with the liberal minority. Mainly, though, he joined conservatives on the court in a series of 5-4 decisions about presidential power, corporate reach, and the funding of political campaigns.

There may be, though, another way to think about this. Even with Kavanaugh seated, instead of a predictable suite of conservative 5-4 decisions, we may find a surprising number, sill 5-4s, tipped in a surprisingly liberal direction. 

We could see more moderate and even occasional progressive judgements then anticipated with someone other than Kennedy or, God help us, Kavanaugh agreeing with the four-member liberal wing of the court.

I see the strong possibility that Chief Justice John Roberts may turn out to be an occasional swing vote, especially when issues are of such magnitude that he does not want his court to be perceived as acting too regressively or with too much partisanship.

Case in point, the Affordable Care Act (Obamacare) where Roberts struggled to find a way, a rationale that would work for him and allow him to vote to uphold it. Which he did. (Swingman Kennedy voted with the other three conservative judges and argued vigorously to get Roberts to join them.)

Stretching the language of the actual Obamacare legislation, he saw the individual mandate of the ACA to be funded by a tax and not by either subsides or penalties. And, thus, constitutional. A stretch but revealing--he was so eager to find the ACA upholdable that he became inventive when it came to finding a way to sustain it.

Why might that be? Judicial rationalization trumping ideology and even belief?

Because it's his court. Robert's court. Forever in history, whatever the court does or does not do, finds constitutional or lacking in precedent will be attributable to the Robert's Court.

It wasn't the Scalia Court, nor was it the Thomas Court, or for that matter the Ginsberg Court. It's the Robert's Court as it was the Warren Court, the Burger Court, or the Rehnquist Court.

History-minded, as all chief justices are, Roberts may not want his court to be known ever after as heartless and insensitive to the lives of Americans and our institutions. For him to be perceived that way.

I may be indulging in wishful thinking. But, then again, let's wait and see. Stranger things have happened with the Supreme Court.

October 25, 2016--They're Dying of A Broken Heart

Thinking hard about the results of Angus Deaton's and Anne Case's study of death rates among white people, Bill Clinton, noting the dramatic rise in the suicide rate and increases in alcohol and drug abuse among young, undereducated low-income men, especially men, the former president said--

"It's not simply that people are losing jobs. Jobs were part of their cultural world. It's bigger than just this coal job doesn't exist anymore. It's that part of a way of life is disappearing."

He continued--

"You know what they're really dying of? They're dying of a broken heart."

He not only understands that pain. He feels that pain.

Some have made fun of Clinton's feeling people's pain--thinking it insincere and self-serving--but his enduring popularity, particularly among these displaced white people, suggests that they believe him. And as a result, he has wide support across the political spectrum. Perhaps more than any other politician.

If we want to build working connections between otherwise polarized constituencies, for the upcoming Clinton administration, a focus on men, proverbial "angry white men," as well as men of color, is both a good and smart idea.

To glimpse the scope of that need, from the Sunday New York Times, here is something by Susan Chira, senior correspondent and editor on gender issues--

• More than a fifth of American men--20 million people--between 20 and 65 had no paid work last year.
• Seven million men between 25 and 55 are no longer looking for work. Twice as many black as white.
• There are 20 million men with felony records who are essentially unemployable in anything other than menial jobs.
• Half the non-working men report they have serious health problems.
• Only 42 percent of college graduates are men.
• It is estimated that by midcentury, about a third of men between 25 and 54 who do not have college educations will be out of work.
• And, their suicide rate is soaring.

During the current campaign, we continue to hear from Hillary Clinton about the ongoing needs of women, children, and families.

These are real issues and deserve continued attention.

What we hear about men as a cohort tends to be negative. Through winks and nods, Donald Trump's approach is to pander to displaced-feeling men who, when they hear "make America great again," in dog-whsitle terms this means to them a time when white men were dominant and the wife stayed home to take care of the household and children.

Hillary's approach to male issues has been one-off--by making college more affordable, by growing the economy, everyone, including men, will benefit.

It may be that this will prove to be insufficient.

Just as when we perceived gaps between men's and women's aspirations and achievement, we instituted affirmative approaches to narrow those differences in the schools and work places. And to a large extent it worked. For example, 58 percent of college graduates are women.

We may need something equivalent for left-behind men.

Who better than a female, feminist president to take the initiative to address this new, even dangerous inequality. Not only would it be unexpected, it would wonderfully disrupt expectations. The concern among many is that her administration will be all about women and children just as there was fear that Obama's would be about black people.

If Hillary Clinton aspires to be a transformative president and genuinely wants to heal one of the most significant breeches in our social fabric, paying attention to those men dying of broken hearts would be an ideal place to begin.