"If my rule-breaking is ethical and safe (and Idaho-legal), why does it annoy anyone?"

Asks Randy Cohen, the original NYT "ethicist," who admits to treating stop signals as yield signals when he's on his bicycle.

I choose my riding style mindful of my own safety and that of my neighbors, but also in pursuit of happiness. Uninterrupted motion, gliding silently and swiftly, is a joy. 

And you ask why it annoys anyone! There will always be some people who are annoyed by somebody else having fun — you know, the people H.L. Mencken was knocking when he defined Puritanism as "The haunting fear that someone, somewhere, may be happy." But there's something else about rule-following that matters. If there's a system of rules, individuals can always subjectively, flexibly, pragmatically spin out all sorts of applicable exceptions that let them do what they want. Randy Cohen has used his big brain to determine that he's right about the unnecessary severity of the rule in this case, but he's promoting a style of thinking, an approach to ethics, that others will use in all sorts of self-serving ways. If we're not going to follow the rules anymore... then what?

Interestingly, Cohen ends his little essay with a quote from Supreme Court Justice Stephen Breyer, who, we're told sometimes bikes to work:

“The advantages? Exercise, no parking problems, gas prices, it’s fun. An automobile is expensive. You have to find a place to park and it’s not fun. So why not ride a bicycle? I recommend it.” 

Now, Breyer isn't saying anything about whether or not he follows the rules, and Cohen seems to be injecting relevance by quipping: "I don’t know if he runs red lights. I hope so." But if you know a few things about Supreme Court Justices and their theories of interpretation, you shouldn't think Cohen dragged in Breyer because he's some random celebrity who, like Cohen, bikes for fun.

Breyer is not a rules guy:

Breyer has six interpretive tools—text, history, tradition, precedent, the purpose of a statute, and the consequences. In his view, it's a mistake to ignore the last two. Scalia replies that to look at either the purpose or the consequence of a statute is to invite subjectivity and beg the question.

And yet, Scalia admits he's "exceeded the speed limit on — on occasion."

PIERS MORGAN: Have you ever been caught?

SCALIA: Oh, yes. I've gotten tickets. None -- none recently.

MORGAN: That's it? That's -- that's the only criminal act..

SCALIA: Yes. I...

MORGAN: -- in your life?

SCALIA: -- I am pretty much a law-abiding sort.

MORGAN: I like the phrase "pretty much." It gives me somewhere to go.

SCALIA: No I -- I'm a law-abiding citizen.

"A second Obama term could kill the Second Amendment."

Says James Taranto, inviting Obamans to make gun control a big campaign issue. The Supreme Court's recent cases finding an individual right to bear arms were decided by a 5-man majority, 2 of whom (Antonin Scalia and Anthony Kennedy) are in their late 70s. Ruth Bader Ginsburg (who's 79) and Stephen Breyer (who's 73) dissented. We don't know whether any (or all!) of them will leave the Court in the next 4 years or whether the Court will revisit its Second Amendment jurisprudence, but the point is, if gun control becomes an issue, those who care about gun rights might be induced to get quite excited over Supreme Court appointments.

Now, it's my perception that the gun control issue has already played out. There had to be that clamor that we heard over the weekend, but it was a clamor without legs.

Their coats were brushed, their faces washed,

Their shoes were clean and neat —

And this was odd, because, you know,

They hadn't any feet.

What happens if states turn down the Medicaid expansion money and decline to set up the health-insurance exchanges.

Michael D. Tanner explains the surprisingly extreme consequences.

[I]f a state doesn't expand its Medicaid program, most of those who would've been eligible for Medicaid will now become eligible for subsidies through ObamaCare's health-insurance exchanges. And those subsidies are paid in full by the feds.

Thus, New York, for example, would shift most of that $52 billion in new costs back to the federal government.

Of course, if states do shift those costs back to the feds, that will cause the federal cost of ObamaCare to skyrocket. If every state were to refuse to expand its Medicaid program, the feds would save roughly $130 billion in their share of Medicaid costs in 2014, but would have to pay $230 billion more in new exchange-based subsidies — for a net added cost of $100 billion. And that's just for the first year...

ObamaCare gives the feds the authority to step in, setting up and operating an exchange in any state that doesn't set up its own... [But f]ederal subsidies are available only through exchanges that the states set up. The feds can't offer subsidies through a federally run exchange.

Thus, if states neither expanded Medicaid nor set up exchanges, that would effectively block most of ObamaCare's new entitlement spending.

Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power.  The original legislation had the states locked in, because they'd lose all their Medicaid funding if they didn't participate. That was held to be coercive, and thus not supportable by the spending power, which requires that states be given a choice whether to run federal programs and accept various related conditions. Under the Court's ruling, the states only lose the funding for the expansion of Medicaid, which makes it possible for them to say no, as many seem to be doing.

There's an elaborate set of moves in the future, and I wonder how far ahead the Chief Justice looked when he chose his position. Perhaps Obamacare is doomed by the seemingly modest, miminalist hit it took on the spending power issue. But wouldn't Breyer and Kagan have seen ahead too? Why did they join him? I'm not ready to give him genius points for skillful playing of the long game.

How Chief Justice Roberts reenvisioned the individual mandate as a tax... and how he avoided the question of congressional accountability.

After going through the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, I'm finally going to read the taxing power part of the new case — which, by the way, is called National Federation of Independent Business v. Sebelius.

This is the part where a 5-person majority upholds the individual mandate. Chief Justice Roberts writes, joined by Justice Ginsburg, Breyer, Sotomayor, and Kagan. The 4 liberal Justices did not agree with him in the Commerce Clause part of his opinion, III-A, so they also don't join III-B, which is the transition from the Commerce Clause to the taxing power discussion. In III-B, Roberts tells us that we need to shift from thinking about the individual mandate "as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." The government argued for reading the statute one way — as a requirement — but that led to viewing it as unsupported by the only enumerated power that might have supported it, the commerce power. So we shift to the other alternative — the mandate as a device for identifying who owes a tax. He's choosing to read the mandate in the way that allows it to be supported by another enumerated power, the taxing power.

Now, on to part III-C, with Roberts writing for the majority.

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017....

The fact that Congress labeled it a "penalty" rather than a "tax" isn't crucial. (Nor does it matter that the Court doesn't view it as a tax within the meaning of the Anti-Injunction Act.) Roberts also distinguishes cases that say when an exaction is a "penalty," it is not a tax. So the label "tax" won't turn what is really a penalty into a tax (within the taxing power), and here, the label "penalty" won't turn what is really a tax into a penalty. The question is what is it really, and this "penalty" is really a tax for 3 reasons:

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture [the case that found something labeled "tax" to be a penalty]. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement [unlike Drexel]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution [unlike Drexel, where the "tax" was enforced by the Labor Department].

It doesn't matter that this tax is supposed to get people to do something else. Taxes are often structured to motivate people to do something the government would like you to do. There are endless taxes shaping behavior, but they still get to count as taxes under the taxing power since they raise revenue. Roberts notes the obvious example of a cigarette tax. It's an incentive not to smoke, and it raises revenue. It's a tax.

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.”

In this case, what's called a "penalty" isn't really a penalty because it's not a punishment for failing to buy insurance.

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. 

So it's just an option. You can opt not to buy the insurance and to pay the "penalty." Whichever you want. The government said exactly that to the Court. You won't have done anything wrong, so pay whichever is less. And if you are one of those healthy people whom the insurance companies need to bulk up their funds so they can pay the expenses of their unhealthy, you should hand your money to the government. Screw the insurance companies! That is the plan. The government said so. If and when you have health-care expenses that outweigh the cost of insurance, then go ahead and buy insurance. Again: screw the insurance companies. That is the plan.

Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.

It's the plan. Can you see the ultimate plan?

Now, this is awfully tricky. What about democratic theory? Shouldn't Congress have to reveal such a devious scheme to the people so they can react and pressure Congress about what they want and don't want? As I said back during the oral argument:

[W]hen Congress was passing the bill, the people never understood [it as a tax]. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? 

And here I find the place in the oral argument transcript where Justice Breyer pinned down the Solicitor General Verrilli, getting him to say "If they pay the tax penalty, they're in compliance with the law." Breyer said "Thank you." That was a big "thank you," and Verrilli responded "Thank you, Justice Breyer." Indeed! It was on that point that the case was won. Breyer later returns to the subject, and Roberts gets involved, asking the Solicitor General whether "one of the purposes of the provision is to raise revenue," which was the key issue under the taxing power. I said at the time:

Get it? Something needs to be specifically called a tax for the Anti-Injunction Act to apply, but when it comes to assessing Congress's enumerated power to tax, specific textual reference to "tax" isn't needed.

I think Justice Breyer was buying that argument.

And Roberts was too, in the end.

So, Congress was raising revenue, but they really didn't want to talk about that at the time, and that's enough for the taxing power. Too bad if the people didn't notice. Justices Scalia, Kennedy, Thomas, and Alito — says it matters that Congress called this a "penalty" — expressing that to fail to buy insurance is wrongdoing that is being punished. And here's where Scalia-Kennedy-Thomas-Alito talk about democratic theory and accountability:

Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Roberts' only response is that congressional power doesn't depend on labeling. He offers no answer to the discussion of legislative accountability. Interestingly, he did talk about accountability in connection with the spending power issue, as noted in this earlier post. He said:

Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.

In that context, the idea is that people need to know whether the state or federal government is responsible for a given matter so they can know who deserves blame or credit for a given policy. I think it's a real omission for Roberts not to address the accountability theory with respect to the mandate as a tax. Justices Justices Scalia, Kennedy, Thomas, and Alito were explicit about it, and it was obvious anyway. Maybe Roberts could have said that these 2 accountability situations are different. If Congress uses deceptive labeling to keep people from getting stirred up in time to stop the legislation, that's between Congress and the electorate, and we can get mad later and vote the bums out. But if Congress employs the states to do its work and the people don't like it, the people will be confused about who's really responsible. Congress will have blurred the lines of accountability. The people will have trouble knowing who are the bums. Roberts might have said something like that. These are 2 different ways of tricking people and one matters and one didn't.

But Roberts didn't talk about it. You know, there's a such thing as judicial accountability too. That's what these opinions are for.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

"Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United..."

"... or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration."

Writes Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissenting from the Supreme Court's summary reversal of the Montana Supreme Court's decision, which — as the majority put it presented the question "whether the holding of Citizens United applies to the Montana state law":

There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

(PDF.)

"Zelda Fitzgerald was a Chaos Muppet. So, I must tell you, is Justice Stephen Breyer."

Dahlia Lithwick is doing Muppet Theory.

Via Throwing Things.

The Supreme Court's new double jeopardy case divided 6-3 on gender lines: was this "some sort of gender-related 'empathy'"?

Lawprof Mark Tushnet wonders, noting the dissent limited to the 3 female Justices — Ginsburg, Kagan, and Sotomayor — and expressing the belief that "this is the first case in which the Court has divided along gender lines." I don't think he's taking account of instances when Justice O'Connor (or Justice Ginsburg) was the only woman on the Court and dissented alone. It is striking to see the 3 women segmented off, but really, what is the big deal? They are the liberal wing of the Court, so it's just a matter of whether or not Justice Breyer joins them. I suppose one might wonder whether there's something male about Breyer's defection from the usual group of liberals.

The case in question, Blueford v. Arkansas, found the 3 women championing the rights of a man accused of murder after a 1-year-old boy died of a severe head injury while in his care. Nothing particularly appealing to females there, as Tushnet notes.

Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)

Tighter?! I hope that's not a gender-related notion, professor. I've read both opinions, and I think the Chief Justice's majority opinion is plenty tight.

Anyway... neat to have the Court line up along gender lines. Tushnet can imagine Kagan thinking that. I can't.  (And why is Kagan running the show? It's Sotomayor's opinon.)

The Solicitor General argues that failure to comply with the requirement to buy health insurance does not equal a violation of federal law.

I'm at page 47 of the transcript (PDF) of this morning's oral argument, as the Justices explore whether they are dealing with the collection of a "tax" within the meaning of the Anti-Injunction Act. The Affordable Care Act imposes a "penalty" for failure to buy health insurance; it doesn't call the penalty a tax, but it collects the penalty through the individual's tax returns.

Justice Alito asks Solicitor General Verrilli whether the government is saying that in cases where someone is "exempt" from the penalty, it means that the person is "not under the obligation to maintain minimum essential coverage." The SG says that's right. Chief Justice Roberts says those with exemptions are subject to the mandate, just enjoying an exemption from the penalty. The SG says "you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have the insurance."

Justice Kagan then wants to know about a person who isn't exempt from the penalty but who chooses to pay the penalty rather than to buy the insurance. What if this person then "finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?"

GENERAL VERRILLI: No. Our position is that person should give the answer "no."

JUSTICE KAGAN: And that's because —

GENERAL VERRILLI: That if they don't pay the tax, they violated a federal law.

JUSTICE KAGAN: But as long as they pay the penalty —

GENERAL VERRILLI: If they pay the tax, then compliance with the law.

JUSTICE BREYER: Why do you keep saying tax?

GENERAL VERRILLI: If they pay the tax penalty, they're in compliance with the law.

JUSTICE BREYER: Thank you.

Why "thank you"? Breyer must think he's pinned Verrilli down. This is indeed a tax?

GENERAL VERRILLI: Thank you, Justice Breyer.

JUSTICE BREYER: The penalty.

GENERAL VERRILLI: Right. That's right.

Hmm. So the SG is saying the only legal requirement is to pay the tax if you owe the tax, which you do if you haven't bought the insurance (and don't have some exemption). There's more discussion and Breyer returns at page 52 to say:

So is your point that the tax -- so, what we want to do is get money from these people. Most of them get the money by buying the insurance and that will help pay. But if they don't, they are going to pay this penalty, and that will help,too. And the fact that we put the latter in brings it within the taxing power. And as far as [the Anti-Injunctions] Act is concerned about the injunction, they called it a penalty and not a tax for a reason. They wanted it to fall outside that, it's in a different chapter, et cetera. Is that what the heart of what you are saying?

GENERAL VERRILLI: That's the essence they called it a penalty. They didn't give any other textural [sic] instruction in the Affordable Care Act or in the Internal Revenue Code or that that penalty should be treated as a tax for the Anti-Injunction Act purpose.

Roberts presses him: One purpose of the penalty is to raise revenue? Yes, says the SG, but because the ACA lacks "textural [sic] instruction in the statute that this penalty should be treated as a tax for Anti-Injunction Act purposes," it's not within the Anti-Injunction Act. Get it? Something needs to be specifically called a tax for the Anti-Injunction Act to apply, but when it comes to assessing Congress's enumerated power to tax, specific textual reference to "tax" isn't needed.

I think Justice Breyer was buying that argument.

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

"Supreme Court Justice Stephen Breyer was robbed last week by an intruder armed with a machete..."

At the Justice's vacation home on the Caribbean island of Nevis.

"Voters Are Gung-Ho for Use of Drones But Not Over the United States."

76% favor the use of drones to kill terrorists, but when asked about using drones for surveillance — not even killing — only 9% are drone-friendly.

This gives real insight into how Americans perceive rights: We see ourselves as having strong rights as Americans. We don't have an international human rights perspective.

Remember the famous debate between Justices Scalia and Breyer about using foreign law in the interpretation of the U.S. Constitution? I live-blogged it here:

Justice Scalia [says] it might be "nice" to know our law is like that of the rest of the world, but it isn't. The Framers would have been "appalled" if you'd have told them what they were doing is making us like the rest of the world. They didn't have much respect for European countries. He notes that Madison was contemptuous of countries that were "afraid" to let their citizens bear arms.

We think we're different. We think we're special.

"A professor lost his long legal fight to keep thousands of foreign musical scores, books, and other copyrighted works in the public domain..."

"... when the U.S. Supreme Court ruled against him on Wednesday in a case that will affect scholars and artists around the country."

The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.

It's really Congress's fault, but the Court might have saved us from this unpleasant legislative imposition. There were 2 dissenters, 2 of my favorite Supreme Court Justices, Stephen Breyer and Samuel Alito — one liberal and one conservative, which makes 2 seem like more than 2.

"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," declared the majority opinion, which was written by Justice Ruth Bader Ginsburg.

In a dissenting opinion, Justice Stephen G. Breyer, writing for himself and Justice Samuel A. Alito, faulted the Congressional action. "The fact that, by withdrawing material from the public domain, the statute inhibits an important pre-existing flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute," he wrote.

The case is Golan v. Holder. Here's the full text.

Scott Walker is the first of Politico's "top unanswered questions for 2012."

Here's how they phrase it: "Can Democrats claim a scalp in Wisconsin?" (Why isn't "claim a scalp" politically incorrect by now?) The question is whether the Democrats can take down Scott Walker in a recall election. I'm predicting they can't. I think the more interesting question is: Will the Democrats' effort to oust Walker have repercussions in the fall elections to the ironic point where it is Wisconsin that tips the Senate and the presidency to the Republicans?

There are a bunch of other questions. 2 are about the Supreme Court: "Will the Supreme Court deliver for the GOP?" and "Will a liberal retire from the Supreme Court?" Again, Politico is obtuse. For example, it says: "If the court strikes down the controversial individual mandate, it would be a jolting setback for Obama just a few months before he’s up for reelection." But striking down the individual mandate would help Obama! How is it a setback? The unpopular law would be gone. Obama could claim it was a good thing and blame the bad old Supreme Court for being all "activist." If, on the other hand, the Court upholds the law, Obama will feel the full force of the opposition to it. And the spotlight will be on the liberal Supreme Court Justices who won't enforce limits on congressional power, which will leverage the GOP to say: Do you want Obama naming the successors to those terrible liberals Ruth Bader Ginsburg and Steven Breyer?

"We wish the people of Wisconsin would take care of their own business and leave us, and [Big Mountain Jesus], totally alone."

A 50-year-old statue in Montana, put up by the local Knights of Columbus to honor soldiers who had seen statues like this while serving in Italy in World War II, is attacked as unconstitutional by the Freedom From Religion Foundation of Madison, Wisconsin.

The monument is also a local landmark:

“People say, ‘Meet at Jesus at 11.’ Skiers take pictures with him, wrap him up in clothing and put Mardi Gras beads on him.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation says: “It’s terribly important that the religious right not be allowed to manipulate this situation.” (But her organization picked the fight!)

Here's the  “Save Big Mountain Jesus Statue” Facebook page, which links to this article that pre-dates the current controversy:

“I was out on the mountain, kind of exploring,” [Dan Graves] recalled, taking a break from work last week to recount his first encounter with the statue. “Of course, through the fog and the haze, I saw Christ, with his outstretched hands.”

“It was a little surreal,” Graves added.

Anyone who skis or hikes or bikes along Big Mountain’s slopes has likely had a similarly jarring encounter: coming around a bend near the top of Chair 2 to find the life-like concrete rendering of Jesus Christ, gazing out over Whitefish Lake and the Flathead Valley beyond, from a perch above where the trail splits into Ed’s Run, Hibernation and Hellroaring.

So the placement in the landscape heightens the spirituality of the encounter with the religious symbol, but I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005. Breyer — it's important to note — was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular. 

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

In the violent video games case, Scalia notes the irony of Alito's strenuous effort to describe the "astounding" violence.

From the majority opinion in the just-decided case of Brown, Governor of California v. Entertainment Merchants Association:

JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

The Court strikes down a California law that prohibits the sale or rental of "violent video games" to minors. The statute defined violent games in a way that "mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York." But sex and violence are different: "obscenity is not protected expression" under the First and Fourteenth Amendments. California was trying "to create a wholly new category of content-based regulation that is permissible only for speech directed at children." "That is unprecedented and mistaken," the Court says today.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

I was reading that out loud here at Meadhouse, and somebody said: "The Supreme Court needs spoiler alerts!" 

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

That Homer passage still grosses people out. Even after all the horrible movies and video games they've witnessed.

Alito, by the way, does not dissent. (Remember he was the lone dissenter in the Phelps case, showing the most empathy for sensitive people brutalized by ugly expression.) He thinks that "the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie," and he'd prefer to put off the more difficult free speech questions and  "hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires." That would leave room for legislatures to craft better laws designed to protect minors.

ADDED: The 2 dissenting opinions come from Justices Thomas and Breyer. Thomas relies on originalism: "the founding generation" didn't think First Amendment free speech included a right "to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians." I haven't had the chance to read the entire opinion, but I can see that it contains some detailed discussion about the history of ideas about children. I'll leave that for another post.

Justice Breyer's dissenting opinion reject the facial challenge to the law. He says the "case is ultimately less about censorship than it is about education."

Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak­ing our system of government work.... Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.

I'm Bloggingheadsing with Dahlia Lithwick... and it's all about law.

The episode is titled "Funkier Than a Mosquito’s Tweeter" — which is the title of the Tina Turner song I pointed at in my post about Justice Breyer referring to "the tweeter."



Subjects:

The Supreme Court’s real diversity problem
How blogging made Ann bold
Is the real world more of an echo chamber than the Internet?
Do judicial elections make a mockery of justice?
Dahlia: Having three female justices has changed the Court
The problems with France’s anti-burqa law

Justice Breyer on "the tweeter": "I get requests. Can we follow you... That's very nice. Somebody would like to follow me. It's quite flattering."

He doesn't think it's a good idea. But he doesn't know how to turn it off... the "tweeter." (The tweeter? Cue Tina Turner.)



"Judges wear black robes so that they will resist the temptation to publicize themselves, because we really speak for the law. And that is to be anonymous."

This is why I wouldn't want to be a judge. They're supposed to submerge their individuality and self-expression. They're supposed to become neutral expositors of The Law.  Of course, they don't, not entirely, and everyone wants to figure out what they really are like, underneath that judge costume. But we only want to know because we need to understand and predict their opinions, and not because we'd be interested in their opinions if they didn't have the judicial power.

Oh, maybe for some of them we would, but as long as they are judges, engaged in the pretense of anonymity, they don't display much or any interestingness apart from the wielding of power.

Would you want to be interesting largely or solely because of the power you wield? It's nothing you've created, and if you weren't sitting there, in that seat of power, someone else would be, and then they would be all that you now are. What difference then does it make whether it's you or someone else?

The Westboro Baptist Church wins in the Supreme Court in the case about protesting at a soldier's funeral.

"The First Amendment shields Westboro from tort liability for its picketing in this case."

Chief Justice Roberts writes the opinion, with only Justice Alito dissenting. Justice Breyer has a concurring opinion. From the Roberts opinion:

The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence....

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995)....

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield West- boro from tort liability for its picketing in this case.

Clearly, this is the right outcome.

AND: Alito, the lone dissenter, stresses the value of the tort called "intentional infliction of emotional distress":

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

Breyer's short concurrence makes the point that the decision is limited to in-person picketing about matters of "public concern." In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying.

Justice Breyer on the right way for a Supreme Court Justice to: 1. interpret the Constitution, and 2. deal with the President of the United States criticizing him in the State of the Union Address.

Back to that interview Chris Wallace did with Justice Breyer. The earlier post got overlong dealing with the Second Amendment. Now, having taken a break to deal with the new federal court decision invalidating the individual mandate, let's get back to the Breyer interview, beginning here, where he is talking (yesterday) about the as-yet-unreleased case. How can the Supreme Court resolve such a politically hot matter without losing the public's confidence in the legitimacy of the Court?

BREYER: The way not to do it -- hold your finger up to the political winds. That's not the job of the judge. The judges are not politicians... [W]hat we do is we look to the text, the history, the traditions, the precedent, the values that underlie the particular constitutional phrase, and consequences that if you decide this way, does it further the values or does it undermine the values.

There, that's his theory of interpretation, summarized.  The key is identifying values underlying the text and the real-world consequences of the decisions. That may seem to give the judge a lot of leeway, but Breyer's effort is to convince people that this is real judging, even though the stricter textualists say it isn't. If people accept this argument, then they see that the liberal Justices — like the conservative Justices — are doing something that isn't some sort of covert politics and they'll have confidence in the courts.

This brings up the topic of the Justices at the State of the Union address. Wallace shows the video clip of Obama scolding the Justices — who were sitting right in front of him — about the decision in Citizens United. There's also a clip of Chief Justice Roberts saying that he's troubled by the "image... of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless." Breyer disagrees. It's good for the Justices to hear from people who think different things: "It doesn't bother me and part of me says, 'Good.'"