SCOTUS Map: February and March 2019

On March 13, 2019 By admin

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At a February 1 Hastings Law Journal symposium honoring retired Justice Anthony Kennedy’s 43 years as a federal judge, Kennedy bemoaned what he sees as the lack of “rational, enlightening dialogue” and the dissipation of the “social framework of decency.” Of the Supreme Court’s two newest justices (and former Kennedy clerks), Justices Neil Gorsuch and Brett Kavanaugh, Kennedy had only ringing endorsements: “[Gorsuch is] going to be a wonderful judge, just like Brett.” The San Francisco Chronicle covered his comments.

On February 4, Justice Elena Kagan spoke to students in a Q&A session and received the Fordham-Stein Prize from the Fordham University School of Law. Coverage comes from The Fordham Observer and Fordham Law News, which reports that Kagan encouraged attendees at the Fordham-Stein Prize Dinner to connect with one another. “I do truly believe one thing, and that is we only make progress by listening to each other and by learning from each other, and that we should do that across every apparent divide: jurisprudential, political, you name it.”

In a February 6 Belmont University Law School appearance, Chief Justice John Roberts mused about the challenges of achieving consensus and reducing the number of 5-4 decisions. “Some days are better than others,” he noted. He continued:

I think it’s something worth working at. I have eight extraordinarily accomplished colleagues who work hard, and have a particular view, and they also are committed to having us work together as much as possible. I think a unanimous or closely unanimous decision is much more effective and acceptable than a sharply-divided 5-4, or even worse, 4-3-2… The narrower the decision, the more likely you are to get people to agree with it. It’s when you start branching out that people will fall off.

Citing Chief Justice Earl Warren’s short, unanimous decision in Brown v. Board of Education, Roberts pointed out:

You get the sense that he wanted unanimity… If he had written another paragraph, people would start saying, no, I don’t agree with that. I’m not going to go along with that. So, I do think it’s a worthy objective. Not at all costs – if you have strongly held views on a particular approach to a case, and that results in a 5-4 decision, then that’s the way it is. But I do think it’s worth trying to get broader agreement.

The chief justice was also questioned about Kavanaugh’s confirmation process. “The process is not working the way it’s supposed to,” Roberts said. He explained:

All too often, you have members of the committee asking questions that the nominee can’t fairly answer, or for reasons of their own, and the nominee having to give answers that aren’t answers. How are you going to rule on this? What do you think about this case? It’s inappropriate to ask a nominee that and inappropriate for a nominee to answer. And yet you kind of go through all of that anyway. I don’t think that’s helpful.

Roberts suggested that senators instead ask other probing questions such as: What is the nominee’s understanding of the Constitution? What is the proper role of the Supreme Court? What are your favorite books, and why? What are nonlegal decisions you’ve made, and how did you make them?

The Tennessean covered the event, video for which is available on YouTube.

Justice Sonia Sotomayor delivered remarks at the Society of Children’s Book Writers and Illustrators’ Golden Kite Awards Gala on February 8. Coverage comes from Publishers Weekly.

On February 14, Sotomayor spoke at the Library of Congress, as part of the Supreme Court Fellows Program. Video of the full talk, which covered topics such as her career in the judiciary and her plans for another children’s book, is available on C-SPAN.

Sotomayor appeared alongside the actress Eva Longoria Bastón at the George Washington University on March 1. C-SPAN has also posted video of the event. Three days later, Sotomayor gave the introduction at the Americans for the Arts’ Annual Nancy Hanks Lecture at the John F. Kennedy Center.

On March 2, Gorsuch was presented with an Honorary Fellowship to the American College of Trial Lawyers at the ACTL’s 2019 Spring Meeting.

Sotomayor was in New York last week, stopping by the New York City Bar Association on March 7 to receive the Association Medal and to see her portrait unveiled. The justice spoke about the importance of representation and expressed her delight at having her portrait placed next to Justice Ruth Bader Ginsburg’s and Justice Thurgood Marshall’s. In a lighthearted moment during the Q&A session, Sotomayor was asked whether she, Kagan, and Ginsburg “hang out” off the bench. “Sometimes we do,” Sotomayor replied. “I’ve had them over to my house for dinner. The other two don’t cook, so they’re impressed I do.”

On Friday, Sotomayor made an appearance at the National September 11 Memorial & Museum, where she discussed the impact of the 9/11 attacks on American society, as part of the museum’s New York Stories series.

On March 11, Justice Clarence Thomas delivered the keynote speech at a Mercer University School of Law courtroom dedication in Macon, Georgia.

Thomas also travels to California this month, speaking at Pepperdine University’s Annual School of Law Dinner on March 30.

* * *

Past case linked to in this post:

Brown v. Board of Education, 347 U.S. 483 (1954)

The post SCOTUS Map: February and March 2019 appeared first on SCOTUSblog.

The Atlantic Politics & Policy Daily: Grounded

On March 13, 2019 By admin

• Breaking News

What We’re Following Today

It’s Wednesday, March 13.

‣ The Senate is expected to vote tomorrow on a resolution to block President Donald Trump’s national-emergency declaration. Ahead of the vote, a group of senators, led by the Utah Republican Mike Lee, is attempting to reach a last-minute agreement with the White House to limit the president’s power to declare future national emergencies in exchange for its support on the most recent declaration. The White House has so far declined to commit.

Here’s what else we’re watching:

Bad to Worse: A federal judge sentenced Paul Manafort, Trump’s former campaign manager, to 43 months in prison, bringing his total jail time to roughly six and a half years. But less than an hour after the judge’s ruling, the Manhattan district attorney indicted him on charges of mortgage fraud and other crimes for which he would be ineligible for a presidential pardon. Both defense attorneys and the judge seemed to have messages for the president.

+ Here are four important takeaways from the sentencing, according to Paul Rosenzweig, who two decades earlier served as senior counsel in the investigation of President Bill Clinton.

Grounded: Trump ordered the grounding of all Boeing 737 Max aircraft, reversing the Federal Aviation Administration’s decision from earlier in the week. The U.S. joins many other countries in grounding the jets after one crashed in Ethiopia on Sunday.

The Myth About Joe Biden: Every conversation about the former vice president running for president has involved how he might appeal to working-class Americans. But there’s no proof he can do it: Besides two failed presidential campaigns, Biden has never run a race outside his home state of Delaware.

Beto’s Privilege: The Texas Democrat Beto O’Rourke appears poised to jump into the 2020 presidential race any day now. He’s reportedly kicking off a multiday Iowa tour on Friday, and brought on former Barack Obama staffers like David Plouffe and Paul Tewes. But as he flirts with a potential bid, Megan Garber argues that O’Rourke is demonstrating the privileges that come with being white, male, and handsome in politics.

Admission Impossible: Dozens of wealthy parents were indicted on Tuesday for engaging in a massive elite-college bribery scandal. Of course, one option to prevent this kind of cheating in the future is to simply let more students in. “If you keep something as an extra-scarce commodity, then you will encourage behaviors by certain people, including crimes and bribery and all sorts of bad things,” one college president told Adam Harris.

— Elaine Godfrey

Snapshot

Democratic leaders including Senate Minority Leader Chuck Schumer, left, and House Speaker Nancy Pelosi cheer as they gather to announce the introduction of the Equality Act. (Leah Millis / Reuters)

Ideas From The Atlantic

The Supreme Court Resuscitates the Eighth Amendment (Scott Bullock and Nick Sibilla)
“If a city is short on cash, it can pressure law enforcement to vigorously crack down on conduct—like traffic infractions, code violations, or drug offenses—that is punished with fines. One study of North Carolina found that a 10 percent drop in a county’s revenue resulted in officers writing 6 percent more traffic tickets.” → Read on.

The Moral Center of Meritocracy Collapses (Matthew Stewart)
“The rest of America’s families haven’t got the time or money for the helicopter bills, they are much more likely to find themselves in single-parenting situations, and they have longer commutes from neighborhoods with less desirable schools … And they are the ones that this system, and the 9.9 percent, is shafting on an epic scale.” → Read on.

What Immigration Restrictionists Can’t Foresee (Elizabeth F. Cohen)
“In the past, when the government has tried to control demographics with immigration policy, it hasn’t gotten what it wished for.” → Read on.

How Bigotry Made a Dove Out of Tucker Carlson (Peter Beinart)
“[Carlson] expresses no concern for the Iraqis America killed. In fact, he doesn’t question America’s right to conquer and occupy other countries at all. What he concludes is that the war was a mistake because Iraq is too uncivilized to subjugate.” → Read on.

Trump’s Budget Harms National Security (Kori Schake)
“This defense budget fails the two most basic tests of success: implementing the National Defense Strategy that established Department of Defense priorities, and providing a sustainable spending path for the department.” → Read on.

What Else We’re Reading

‣ Obama’s Fentanyl Failure (Scott Higham, Sari Horwitz, and Katie Zezima, The Washington Post) (? Paywall)
‣ Jared Kushner Shows There’s a Shady-Yet-Legal Way to Get Rich Kids Into College (Adam K. Raymond, New York) (? Paywall)

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The Republicans Are Deficit Hypocrites. The Democrats Should Be, Too.

On March 13, 2019 By admin

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Barack Obama is dumbfounded. The Republicans harangued him for eight straight years over the federal budget deficit. Now, under President Trump, the deficit is skyrocketing—with nary a peep from the GOP. “This is supposed to be the party, supposedly, of fiscal conservatism,” he said in a speech in September. “Suddenly deficits do not matter, even though just two years ago, when the deficit was lower, they said I couldn’t afford to help working families or seniors on Medicare because the deficit was an existential crisis. What changed?”

The former president is not naive; he knows the answer. What changed was that Republicans, having swept the 2016 election, now fully control the government’s purse strings. By the end of Trump’s first year, the Republicans jacked the military’s budget by $80 billion and approved a $1.5 trillion tax cut. So it was no surprise when the Treasury Department reported last week that the deficit rose 77 percent in the first quarter of the fiscal year over the same period the previous year. This week, in its latest budget proposal, the White House had the gall to warn that we “must protect future generations from Washington’s habitual deficit spending,” but nonetheless projected the deficit would rise substantially over the next three years.

The question many are asking is whether the GOP’s about-face matters, politically speaking. As recent headline in The Week put it, “Will Republicans’ deficit hypocrisy haunt them this year?” The White House is confident that it won’t. Trump’s acting chief of staff, former Congressman Mick Mulvaney, spent years ripping Obama about the deficit. Asked recently why Trump’s 2019 State of the Union didn’t mention the deficit, he replied, “Nobody cares.”

The better question is whether the Democrats will continue to be haunted by Republicans’ deficit-shaming. The Democrats have long pushed deficit reduction in the hopes of convincing America that they are the true party of fiscal responsibility. America, like Mulvaney, has responded with a shrug. So instead of complaining about Republicans’ deficit hypocrisy, Democrats ought to mimic it.

The notion that the GOP is the party of fiscal responsibility is one of the most persistent myths in American politics. Republican presidential administrations have consistently driven up the deficit—the amount that government spending exceeds revenue—over the past four decades. The 1981 tax cut signed into law by Ronald Reagan, which slashed the rate for the highest earners from 70 to 50 percent, “led to an explosion in the budget deficit, hitting close to 6 percent of gross domestic product in 1983” The Washington Post’s Daniel Drezner observed last year. When that tax cut failed to pay for itself and the deficit ballooned, the Reagan administration responded with a series of largely forgotten tax increases—while also passing the landmark Tax Reform Act of 1986, which further cut the top rate to 28 percent.

Reagan’s deficit shenanigans became the playbook for generations of conservative policymakers. “By creating a fiscal straitjacket through lower taxes, conservatives leave Washington with less money and raise the specter of deficits damaging the economy as a rationale to take away the benefits that millions of Americans depend on,” wrote Julian Zelizer in The Atlantic shortly before Trump signed his cuts into law. George W. Bush, meanwhile, squandered a budget surplus by gifting enormous tax cuts to the rich, then blew up the deficit to pay for two failed wars.

Democrats, meanwhile, have dutifully focused on reducing the deficit. Bill Clinton began his administration by signing a bill that increased taxes and cut spending; it squeaked through Congress with zero Republican votes. He would go on to embrace the language of fiscal discipline and benefit cuts, signing a welfare reform bill into law that has had devastating reverberations to this day. In a 1993 speech outlining an economic program that would lead to budget surpluses by the end of the decade, Clinton presented deficit reduction as a precursor to social spending. “We’re not cutting the deficit just because experts say it’s the thing to do, or because it has some intrinsic merit,” he said. “We have to cut the deficit because the more we spend paying off the debt, the less tax dollars we have to invest in jobs and education and the future of this country.” (During the 2016 campaign, his wife, Hillary Clinton echoed this line.) By the time Clinton left office, the $290 billion budget deficit he had inherited had been transformed into a $124 billion surplus.

Like Clinton, Obama dealt with a Republican Congress for much of his time in office and made similar concessions and overtures, tailoring budgets and programs like the Affordable Care Act to conservative demands for deficit reduction. Even though Democrats controlled both houses of Congress at the time, the hunt for Republican votes—and perhaps intoxicated by his belief that he could transcend partisan politics—guided much of the bill’s framing. (Obama did also have to contend with the then-powerful conservative Blue Dog Coalition.) The Affordable Care Act was convoluted and made less ambitious in part due to concerns about the deficit—concerns that also guided the administration’s decision to push for smaller stimuluses during the Great Recession than economists recommended, as well as its approach to budget negotiations. If the goal was to control the deficit, it worked. The deficit spiked early in Obama’s presidency due to a combination of Bush leftovers, economic stimulus, and automatic increases in social spending caused by the recession, but he left it roughly where he inherited it.

Where has this gotten Democrats, politically? Nowhere. Republicans have consistently rejected Democratic proposals that would reduce the deficit, and there’s no evidence that voters have rewarded Democrats for their fiscal responsibility. But Democrats continue to live in fear of being seen as the party of reckless spending and “free stuff.” At the start of the current Congress, Nancy Pelosi pushed the Democratic House to adopt archaic and unnecessary pay-as-you-go rules that would require any new spending to be offset by tax increases or spending cuts—a plan that would make bold new policies like Medicare for All and the Green New Deal impossible to pass. As The American Prospect’s Robert Kuttner wrote last month, “Democrats’ restoring a PAYGO rule ignores a three decades history of getting fleeced, and is worse than nothing. It is like wearing a sign that says to Republicans, ‘Kick me.’ To the broad voting public it signals nothing at all.”

Instead of cowering in fear of Republican attacks, and trying to dig the country out of the holes caused by GOP tax cuts, Democrats should accept what their opponents already have: The deficit is a useful political weapon, and there is little to no penalty for being a deficit scold one minute and a deficit denier the next. Even many former deficits hawks, like former Treasury Secretary Larry Summers and former IMF chief economist Olivier Blanchard, have come around to the idea that deficit spending and a growing national debt are not such a bad thing—certainly not to the extent that Republicans have claimed that they are.

What really matters is when to grow the deficit, and why. There are times when it’s unavoidable, like when automatic spending kicks in during a downturn. There are times when it’s sound economic policy, as when large fiscal stimuluses are necessary to pull the economy out of recession. And there are times when it’s a moral good, as it is now in the fight for universal health care and slowing climate change. So Democrats, by all means, should complain ad nauseam about the deficit explosion caused by Trump and the Republicans. But when Democrats regain power in Washington, whenever that may be, they should do exactly as Republicans are doing today: Increase the deficit to achieve their policy goals, and ignore the wails about their egregious hypocrisy.

The Aftermath Is a Superficial, War-Torn Love Story

On March 13, 2019 By admin

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The first shot of The Aftermath is a dispassionate view of an aerial attack, a bombing run that blows the city below into smithereens. The city is Hamburg, which was set ablaze in 1943 and lay in ruins after the end of World War II. But, disfigured by rubble, it could be mistaken for almost anywhere—just one way the director James Kent tries to convey the terrible might of the bombardment. When a British woman named Rachael Morgan (played by Keira Knightley) arrives in Hamburg three years later, she beholds a place so ravaged by war that it’s hard not to have some sympathy for those who live there.

That might sound like a difficult premise to get on board with—that Rachael, visiting an occupied Germany still in the process of denazification, should be able to quickly set aside Britain’s enmity toward the country. But that’s the argument that The Aftermath, based on a 2013 novel by Rhidian Brook, attempts to make by having Rachael move to Hamburg with her military husband, Lewis Morgan (Jason Clarke), and try to get along with the German family she has to share a home with. Then, the story enters even trickier territory, as Rachael begins to fall in love with her Teutonic host, Stephen Lubert (Alexander Skarsgård).

Stephen is haunted not by the sins of Nazi Germany, but by the personal toll the war took on him. That’s why The Aftermath begins with a devastating glimpse of the Hamburg firebombing campaign. Stephen and Rachael are both scarred by the conflict—he lost his wife in the blaze, and Rachael lost her son to a German bomb not long after. Those twin tragedies draw the pair to one another, and Kent’s film is primarily concerned with how shared loss can bind even the most disparate people together. But given that this is a drama set in the shadow of Nazism, embracing that idea may require too big an emotional leap for some viewers.

As Stephen repeatedly insists to the U.S. military forces occupying Hamburg, he was a reluctant Nazi. He was never an official member of the party, but rather someone who stood by mutely as his country fell to fascism. His stately home is requisitioned and handed to Lewis and Rachael as housing, but Lewis allows Stephen and his daughter to stay, arguing that the occupying British soldiers ought to be magnanimous in victory. Over the following months, a romance between Stephen and Rachael develops, starting with hostility, building to flirtation, and then blooming into a full-on, clandestine affair.

Star-crossed passion can be the stuff of great drama, but The Aftermath never digs into the muddy details of Rachael and Stephen’s relationship, or the fraught implications of falling for the enemy. The film has the glossy sheen of a 1950s Hollywood drama, with impeccable costuming, slightly leaden dialogue, and many charged looks exchanged from the opposite ends of sumptuous rooms. Skarsgård’s biggest asset as an actor is his icy, piercing eyes, and Kent (a British TV director who also made the 2014 World War I film Testament of Youth) takes full advantage of them, having Stephen gaze at Rachael mysteriously as often as possible to build up the sexual tension.

Even though Knightley and Skarsgård’s chemistry is strong enough to make the affair plausible, the plot mostly dances around the darker underpinnings of their relationship. Soon after moving in, Rachael inquires about a discolored spot on Stephen’s wall; he remarks that the painting that once hung there was damaged and removed. Quickly enough, Rachael figures out the truth: That was where his portrait of Adolf Hitler hung, a symbol of acquiescence to the Nazi government that cannot be easily erased. But though that stain is a powerful visual metaphor, the film doesn’t explore it much further once the affair has begun.

The Aftermath asks the audience to forgive Stephen because of his own personal tragedy—in the movie, he’s defined largely by the death of his wife, just as Rachael is defined by the death of her son (a trauma that Lewis, who takes a stiff-upper-lip approach, failed to emotionally process). The script, by Joe Shrapnel and Anna Waterhouse, conveys little beyond the fact that Stephen and Rachael are both sad, nice to each other, and very attractive. Their coupling should be somewhat shocking and transgressive, but the film somehow manages to make the story of a fiery tryst with an ex-Nazi dull by diluting every character so that modern audiences can better relate to them. The Aftermath might have succeeded had it challenged viewers. But by squeezing the story into a plain period-romance format, Kent achieved the precisely opposite.