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.

July 18, 2016--Vice President Mike Pence

If there are moderates flirting with the idea of voting for Donald Trump, take a close look at who's in his caboose and would be, if Trump were elected, one proverbial heartbeat away from the presidency.

Mike Pence.

A recent piece in the New York Times, "A Conservative Proudly Out of Step With His Times," summarizes some of Governor Pence's extremist views--

In 1998, long after it was indisputably proven that cigarette smoking causes cancer, Pence mocked the requirement to include warning labels on cigarette packs, calling it "hysteria." He wrote, "Time for a quick reality check--smoking doesn't kill." He has yet to retract this view.

During George W. Bush's first year in office, when Republicans overwhelmingly were supporting a Medicare prescription drug benefit and a major education reform program, No Child Left Behind, then congressman Pence voted against both.

He wears his fundamentalist beliefs on his sleeve, calling his Christian faith more important to him than even his family. And he is so abstemious that he once said, "to avoid temptation," he would only appear at an event where alcohol is served if his wife were present. (Trump, by the way is a teetotaler not for religious reasons but because his brother died of alcoholism.)

Pence opposes abortion under any and all circumstances, even if it has been determined that the fetus has Down syndrome.

He so passionately opposes same-sex rights that, as governor, last year he worked hard to get the Indiana legislature to pass a law that would make it easier for religious conservatives to refuse service to gay couples. A version of Jim Crow laws designed not to exclude African Americans but homosexuals.

It was only after there were threats from numerous national organizations and businesses that they would boycott Indiana that Pence reluctantly relented.

Though a President Trump would not agree with most of these views, there is always the danger that a Vice President Pence would at any moment wind up in the Oval Office as President Pence.

Even by comparison Newt Gingrich or Chris Christie would look good.

January 20, 2014--Baring It All

As we know, Vladimir Putin is in all sorts of trouble because of his views about gay people. Not just his personal views, but also his official ones.

He got his rubber-stamp parliament to pass legislation last year prohibiting "propaganda of nontraditional sexual practices" among minors.

The law has been used to ban gay right demonstrations because children might see them, and it bars discussion of homosexual issues on TV and in newspapers out of concern that children could hear or read about homosexuality and, presumable, as a result, themselves become gay.

As if homosexuality is something one catches. Like the flu.

If it weren't for the fact that the Winter Olympics are just a few weeks away and will take place in Sochi, Russia, this would probably be a two-day story in the United States. We have other important issues to focus on. For example, Chris Christie's closing of a few lanes to the George Washington Bridge and why Robert Redford wasn't nominated for an Academy Award.

But a number of gay Olympians from the U.S. and elsewhere are planning to participate in the winter games and, who knows, maybe wear something purple to protest Putin's homophobia and bigotry.

While thinking about Putin's obsession with gayness, I was reminded of this picture. And then I understood.

Under pressure, though, Putin this past weekend assured gay athletes that his secret police will not interfere with them while they are in Sochi. That is as long as they "just leave kids alone."