The Post Joins the Right-Wing Freakout Over Medicare for All

by Neil H. Buchanan

Republicans are understandably having fits about the increasing popularity of Democrats' plans to expand eligibility for Medicare to the entire U.S. population.  Should this popularity not also be great news for Democrats, as a matter of both politics and problem-solving policy?  Surprisingly, it turns out that there are some prominent liberal-ish voices that are freaking out about Medicare for All, and I do mean freaking out.

Until now, it has been possible to imagine that the Democrats and independents who opposed a single-payer system were doing so because they viewed it as political suicide or because it seemed too difficult to do as a matter of policy mechanics.  Are those excuses still viable?

The latter argument became untenable when it dawned on Democrats that there was already a popular single-payer system that serves 44 million Americans.  The worry about "scaling up" is usually reserved for cases in which a small pilot project in a few cities has proven useful and it is unclear whether a national system would be feasible.  Medicare, however, is already scaled up to an enormous size, and increasing its reach to the remainder of the population is not fundamentally daunting.

Setting that issue aside, the other excuse among non-Republicans who have long opposed single-payer plans -- the claim that the public would never support it -- is pretty obviously testable against the evidence of whether the public actually supports it.  And in pleasingly increasing numbers, they do.

This means that the non-Republicans who continue to be opposed must either have some variation on the scaling-up argument or some other substantive reason to oppose Medicare for All.  It turns out that they have neither.  Instead, they have resorted to anti-government rhetoric, and they sound no different from Republicans when they start warning darkly about how the government would "take over one-fifth of the economy" or impose a huge tax increase or whatever.

In short, those supposedly sober-minded non-Republicans are resorting to scare tactics, trying to get people to oppose Medicare for All simply by calling it a Big Government program.  It turns out that the editorial board of The Washington Post is among the purveyors of this nonsense, and now The Post's fact-checker has even gotten in on the act.

Is the Court a Court Redux?

By Eric Segall

Last week at the Southeastern Association of Law Schools (SEALS) conference, I attended a session on constitutional law works in progress. Although my paper did not directly address the subject, we ended up having a long conversation about whether the Supreme Court is really a court. My 2012 book Supreme Myths argued that the Supreme Court as an institution does not take prior positive law (text, precedent, historical sources) seriously enough to warrant the label "court." I argued both in the book and during the conference that giving judges unreviewable power for life, and then asking them to resolve many of society's most difficult social, political, economic and legal questions based on vague text and contested history, will inevitably result in all-things-considered decisions in the cases the Justices care deeply about.

The fact that the Justices reach unanimous decisions in almost half their cases is irrelevant to my thesis because they choose their own cases and quite self-consciously make sure much of their docket consists of controversies that do not raise important political issues that most Americans care about. If all their cases involved issues like abortion, affirmative action, and separation of church and state, then most of their decisions would in fact be decided along ideological lines.

The push back to these ideas from, among others, Professors Mark Graber, Chris Lund, and Evan Zoldan, and my responses, are the subject of this post. These exchanges were polite, provocative, and in the spirit of gaining better understandings of each other's positions.

Masterpiece Cakeshop and Disparate Impact

by Sherry F. Colb

In my Verdict column today, I talk about a law, proposed but defeated in Lower Austria, that would have required Jews and Muslims who wanted Kosher and Halal meat, respectively, to register as observant Jews and Muslims.  My post here is not about discrimination in Austria, but it revolves around a somewhat related question that arose in a case before the US Supreme Court this past term: How should the Constitution define discrimination on the basis of religion?

Toward the end of the term, the justices narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. To refresh your recollection about the case, it involved a baker (Jack Phillips, owner of Masterpiece Cakeshop or "MC") who refused to prepare a wedding cake for a same-sex couple that had requested one. The couple complained to the Colorado Civil Rights Commission, and the latter found that MC had violated the Colorado anti-discrimination law by refusing the couple a cake. MC defended itself with the argument that it had a First Amendment right not to "speak" a message with which it disagreed through the creation of a same-sex wedding cake and offered a second argument that the Colorado commission had engaged in religious discrimination by finding against MC (but not an experimented-upon secular baker), because MC had a religious reason for refusing the couple a wedding cake. Ultimately, the Supreme Court determined that one of the commissioners in the Colorado commission had exhibited anti-religion bias in describing the case and that this bias tainted the decision of the court that affirmed the finding of anti-gay discrimination.

Others have noted the troubling inconsistency between the way the Court resolved MC and the Court's unwillingness to allow the President's unrelenting racism against Muslims to infect the third travel ban that he issued and that the Court upheld. Michael Dorf and I have both observed that the supposedly offensive remarks by the lone commissioner were not actually offensive at all. He said that people have historically committed atrocities and invoked religion as the basis for the atrocities. That is not only not biased but a plainly accurate statement: the Spanish Inquisition and the Crusades are just two examples. The man also said that it is despicable when people invoke religion as a justification for hurting others. Well, it is, isn't it? If someone excluded a customer from his store on the basis of race and invoked some passage from the Bible about the curse of Ham or the creation of white, black, red, and malay, to remain separate, most people would call that despicable. No religious bias there.

It is useful to think about one of MC's arguments that the Court felt no need to consider (yet). The argument is that applying the anti-discrimination law to MC would discriminate against it on the basis of religion. I had a conversation with someone around the time that the case was argued. He said that both sides have a good claim of discrimination. I asked what sort of discrimination claim did MC have? He said that the claim was that Colorado was discriminating against MC. I asked on what grounds anyone would claim that Colorado was discriminating, when it was simply applying anti-discrimination law to someone who happened to be acting on the basis of a religious motive. He just shook his head and repeated that that's what people were saying.

Justice-to-be Kavanaugh and the Inevitable Backlash

By Eric Segall

I wrote an essay for SLATE this week making a non-partisan case against the nomination of Brett Kavanaugh. I concede that he is eminently qualified to be on the Court, and I’ll take it as an article of faith that he is a man of strong character and an all-around good guy. Nevertheless, there are compelling reasons why even Republican Senators should vote against him. I’m not naïve enough to believe any of them will, but understanding why they should reveals some interesting aspects of the relationship between the Supreme Court and the rest of our political system.

How to Retaliate for Garland

by Michael Dorf

In my latest Verdict column, I explain why I declined to sign a letter from 72 former law clerks of Justice Kennedy in support of the confirmation of Brett Kavanaugh to the Supreme Court. To summarize, I argue: (1) Kennedy clerks do not have any special insight into Kavanaugh's qualifications in virtue of having clerked for Kennedy; (2) the letter purports to reflect a set of politically diverse views, but in fact nearly all of the signers are very conservative; and (3) the letter tacitly assumes without defending the controversial position that the role of the Senate should be limited to examining the professional credentials and judicial temperament of the nominee. Here I want to elaborate on why I think that assumption is wrong under current conditions.

Is It Time to Ease Off On the Media Criticism?

by Neil H. Buchanan

It seems impossible to have anything but a love-hate relationship with the American media.  On the "love" side, not only is an independent press an absolute necessity for a free society, but the mainstream media has done its job amazingly well at many times during the Trump era.  With The Washington Post taking a clear lead, but with ample and impressive assists from The New York Times as well as CNN and other outlets, the press has been the source of almost every investigative bombshell that has put Donald Trump's presidency (quite rightly) in peril.

On the "hate" side, however, the American press continues to lapse into various forms of the conventional wisdom, sycophancy, false equivalence, and laziness that we have witnessed for years (most prominently in the run-up to the Iraq War in 2003).  All of that was bad enough when the threats to American freedom were the slow bleed of voter suppression, money-driven politics, and all of the other familiar problems that led to the metastasis of the radical-right Republican Party of the twenty-first century.  Under Trump and his pliant party, it seems unforgivable.

Unfortunately, the press's willingness and ability to confront Trump and call out his lies has resulted in Trump's proto-fascist tendencies coming to the fore, with increasingly unhinged attacks on the press -- not just criticisms of perceived mistakes in doing their work, but claims that they are terrible human beings, which has predictably resulted in Trump's fanatical followers threatening members of the media with violence.

The past week or so has been so bad that it is no longer surprising (though it should still be shocking) to see predictions from commentators that Trump will soon have "blood on his hands" as well as warnings about "deadly violence" when someone takes the fateful next step and attacks reporters violently.  Claims by Trump's enablers that he is merely attacking bad reporting are simply false, and his followers seem unmistakably to be getting the message.

In an environment that has become this dangerous and volatile, is it now necessary for those of us who criticize the press on the merits (that is, demerits) of their coverage to cut it out?  When is even principled criticism a bad idea?

Abolish ICE versus End the IRS: Still No Real Equivalance

by Neil H. Buchanan

The new tut-tutting move on the op-ed pages is to say that Democrats are moving too far to the left, which is sometimes made as a definitive claim and other times as part of a "Democrats have an identity crisis" rerun of old columns.  In any case, with the continued popularity of Senator Bernie Sanders among many Democrats, combined with the emergence of Alexandria Ocasio-Cortez as a new face on the left, Republicans and many pundits are now saying that the Democrats are becoming full-on socialists.

That is nonsense, of course, for reasons that I will explore in a pair of columns next week.  Today, however, I want to focus on what is perhaps the most plausible -- or, more accurately, least implausible -- example of this supposed lefty extremism among the Democratic base: the proposal to "Abolish ICE."  This is a relatively new proposal embraced by many progressives that would eliminate the U.S. Immigration and Customs Enforcement agency.

The reason that I call this accusation the least implausible among the talking points against progressive Democrats is that the idea of abolishing an agency that enforces immigration law inevitably plays into the false claims that Democrats want "open borders."  And when proponents of abolishing ICE explain that they do, in fact, still plan to enforce immigration laws, their defense can look an awful lot like a pointless and downright silly exercise in relabeling.  "Don't like ICE?” they might seem to be saying, “No problem.  We'll replace it with a new agency, which we'll call Not-ICE."

My snarky turn of phrase in that last sentence, in fact, mirrors an attack that I have made against Republicans who have talked about "ending the IRS."  That proposal actually gained steam on the right a few years ago, and I commented back then that the Republicans would end up creating an agency called Not-the-IRS and then declare victory.

The ridiculousness of the relabeling exercise was so obvious that even Senator Marco Rubio attacked his colleague Ted Cruz during the 2016 presidential primaries, pointing out to listeners at a joint press conference (sometimes wrongly called a "debate") that Cruz had proposed to rewrite the entire U.S. tax code, and "[s]omeone's going to be collecting [your proposed] tax."

Is Abolish ICE just a lefty equivalent of End the IRS?  Actually, no, even though the superficial similarity is there.  But because of that superficial similarity, it is unfortunate (though understandable) that progressives have adopted this rallying cry.  In a superficial media culture, this is an unforced error.

In any case, having said that this comes closer than usual to looking like true equivalence between Republicans and Democrats, I will spend the rest of this column explaining why it is, in fact, very much another example of false equivalence.  Abolish ICE and End the IRS, in the end, could not be more different.