Kathleen's Drunk Dial [LISTEN]

This is what I put up with, people:


Alcoholism. Brutal.

Earth as Hospice (Cynical Thoughts on Climate Change)

Should we care about anthropogenic global warming at all? I lean toward no, for at least the following reasons:

(1) nothing is going to change because of the multinational collective action problems involved, compounded by fossil fuel industry's considerable wealth (which enables it to distort governmental agendas through lobbying or outright corruption, and to influence public perception through propaganda or industry-friendly "research"), compounded by human selfishness, stupidity, and/or inability to properly assess (i.e., weigh) future risks; and

(2) the extinction of life (human or otherwise) on Earth makes no difference no me, either morally or practically, in part but not entirely because I will not have any offspring.

The countervailing moral consideration is the deleterious impact that climate change will likely have on already existing lifeforms (particularly human) on the planet,¹ but see consideration (1) above and consider, given limited amounts of time, material resources, and mental capacity available to be devoted to various social problems, the cost-benefit ratio of environmentalism versus other causes.

Bottom line (in soundbite form): I consider the planet a giant hospice; our goal should be to make the death of the patient as painless as possible, rather than to extend its life (which is, however unfortunately, a fruitless endeavor).² Please note, I am quite willing to be talked out of this rather cynical position.

[FN1] Interesting question(s) raised by the above: Is it theoretically coherent to believe that currently existing life has some moral currency if one believes that life in general does not? If so, does that call into question whether one should favor certain currently existing lifeforms (i.e., humans) over others in his or her ethical calculations?

[FN2] Just as cancer could conceivably be cured tomorrow, it is possible that cold fusion or clean carbon (or whatever) could be developed before the planet is toast. If so, then great, but I am not going to make a case for action or inaction based upon some generalized faith in technological progress.

Marx & Engels? No, Marx & Einstein!

This is fascinating (and something of which I was, surprisingly, entirely unaware): Einstein was a socialist and articulated his views in the monthly socialist periodical, the Monthly Review, in 1949. Permit me to quote his critique of capitalism at length (although I am omitting a substantial amount that is material to his argument, so I encourage you to follow the link to read the entire thing):

The economic anarchy of capitalist society as it exists today is, in my opinion, the real source of the [crisis of our time]. We see before us a huge community of producers the members of which are unceasingly striving to deprive each other of the fruits of their collective labor -- not by force, but on the whole in faithful compliance with legally established rules.

...

Private capital tends to become concentrated in few hands .... result[ing] [in] ... an oligarchy of private capital [ ] which cannot be effectively checked even by a democratically organized political society. This is true since the members of legislative bodies are selected by political parties, largely financed or otherwise influenced by private capitalists who, for all practical purposes, separate the electorate from the legislature. The consequence is that the representatives of the people do not in fact sufficiently protect the interests of the underprivileged sections of the population. Moreover, under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases quite impossible, for the individual citizen to come to objective conclusions and to make intelligent use of his political rights.

...

There is no provision that all those able and willing to work will always be in a position to find employment; an 'army of unemployed' almost always exists. The worker is constantly in fear of losing his job. ... Technological progress frequently results in more unemployment rather than in an easing of the burden of work for all. The profit motive, in conjunction with competition among capitalists, is responsible for an instability in the accumulation and utilization of capital which leads to increasingly severe depressions. ...

This crippling of individuals I consider the worst evil of capitalism. Our whole educational system suffers from this evil. An exaggerated competitive attitude is inculcated into the student, who is trained to worship acquisitive success as a preparation for his future career.

The solution Einstein proposes is the socialization of the means of production and a centrally planned economy ("which adjusts production to the needs of the community, [ ] distribut[ing] the work to be done among all those able to work and [ ] guarantee[ing] a livelihood to every man, woman, and child"). Einstein recognizes the dangers of concentrating so much power in the bureaucratic state ("[a] planned economy as such may be accompanied by the complete enslavement of the individual"), but -- at least in the essay I quoted here -- does not even hint at a solution to the "extremely difficult socio-political problems" that a centrally planned economy presents.

Still, how very fascinating that Einstein (recognized as one of the most brilliant thinkers of the last century) was such an ardent socialist. ("I am convinced there is only one way to eliminate these grave evils, namely through the establishment of a socialist economy ...") Indeed, in my view, Einstein articulates the Marxist critique of capitalism better (and using far fewer words) than Marx himself. I wonder whether Einstein ever further addressed the pragmatic difficulty in achieving a just socialistic state; that, after all, is the real challenge (and the reason that the proponents of capitalism have been so successful in defending an economic system that rests, fundamentally, upon nothing more than greed and large-scale exploitation).

Obamacare: Reading the SCOTUS Tea Leaves, ctd.

One of James Fallows' readers, echoing the point I made in my previous post prognosticating on the outcome of the Affordable Care Act litigation (my emphasis):

Roberts joined the [ ] majority today [in Arizona v. United States] to give a 5-3 ruling (Kagan recused). Only a 4-4 ruling was needed to uphold an earlier decision to overturn the law. He joined a politically polarized decision, possibly extracting a compromise to save debate on stop-and-check for another day in return. Perhaps this was the price for being picked to write a 6-3 majority opinion on Obamacare with a similar compromise to make the bill more conservative (e.g. the Roberts Obamacare opinion might establish a commerce-clause limit that stops somewhere between health-insurance and broccoli mandates).

That would be two consecutive decisions on politically polarized issues in which Roberts crosses sides to (1) provide a larger than needed majority and (2) moderate the result to be more conservative. I imagine that this would instantly reverse a lot of negative opinion about the Roberts court in the legal community, which would give him much more room to make really sweeping, conservative change in other areas that'll be up for debate soon -- ending voting rights enforcement, requiring all union members to opt in on dues, eliminating personal campaign contribution limits, ending affirmative action, upholding the latest abortion restrictions, a broader ruling against firearms restrictions, etc. If you take the view that nationalized healthcare is inevitable and will probably go into effect while Roberts is still Chief Justice, it makes more sense to build up support for other priorities.

NB: Scotusblog speculates, based on the assignment of today's opinions, that Chief Justice Roberts will author the ACA opinion, but I think that he would be writing the opinion no matter which side of the case he falls, so I am not sure we can deduce anything from that.

Enough Is Enough, Mitt!, ctd.

Michael Cohen on the "out-of-control" *LYING* of the Romney campaign: "Romney is charting new and untraveled waters in American politics. In the process, he is cynically eroding the fragile sense of trust that exists between voters and politicians."

The most disheartening part:

Pointing out that Romney is consistently not telling the truth thus risks simply falling into the category of the usual "he-said, she-said" of American politics. For cynical reporters, the behavior is inevitably seen to be the way the political game is now played. Rather than being viewed and ultimately exposed as examples of a pervasive pattern of falsehoods, Romney's statements embed themselves in the normalized political narrative – along with aggrieved Democrats complaining that Romney isn't telling the truth. Meanwhile, the lie sticks in the minds of voters.

It is well past time for journalist in the mainstream media, no matter how "cynical," to reverse this perverse dynamic. For those who would prefer to be fawning transcriptists rather than reporters of fact, law firms are always seeking additional secretaries.

Creeping Cynicism

Andrew Sprung yesterday:

Someone talk me down

I am so freaked out by the weakening global economy, the Republicans' ballyhooed Supreme Court-enabled 3-1 spending advantage, and the pending ACA decision by same Bushified court, I feel like Ingrid Bergman as the Germans march on Paris. Really, it feels as if the forces of reaction are gaining critical mass. They've sandbagged the economy, sabotaged the ACA, packed the court, and won the right to saturate elections with money.

Once again, I am reminded of Francis Fukuyama's demonstration that in other eras, state sovereigns have found means for a few centuries to check the ability of elites to entrench their advantages, only to have the elites eventually find ways to breach the defenses. The question is whether the current disproportionate accretion of wealth and power to the 1% will once again prove cyclical, as in the wake of the 1929 crash, or this time become permanent.

The billionaire barbarians are at the gates.

My response (on his blog):

I feel the same exact way, Andrew, so much so that I am seriously contemplating entirely disengaging from all things political.

I am an attorney, and if the Supreme Court invalidates the ACA, even if it cabins its judicial activism to the mandate, I am going to be devastated. As Akhil Amar stated in an interview with Ezra: "If they [invalidate 'Obamacare'] by 5-4, then yes, it's disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn't. What mattered was politics, money, party, and party loyalty."

I was flipping through the cable news earlier this afternoon, and Dylan Ratigan opined (in the context of campaign finance) that our system is like a drunk who is going to have to hit rock bottom by hitting/killing a child before things change. I'm afraid this is correct, and I am afraid that the accident won't occur until well into my twilight years.

The billionaire barbarians are not at the gates; they are in the throne room, preparing to defenestrate the king, while the rubes -- intoxicated by the most shameless of propaganda and empty promises -- cheer on from the courtyard below. It may be farcical, but that does not make it any less tragic.

I guess I can always blog about cooking, my sweet girls, and hot men.

Obamacare: Reading the SCOTUS Tea Leaves

The "convention wisdom" now apparently has it that the individual mandate, at the bare minimum, will be invalidated by the Supreme Court. Indeed, in a thinly sourced dispatch yesterday in Forbes, Obamacare opponent Akiv Roy reports that Justice Kennedy has already sided with the "conservatives" on this point, but that the justices are still (still!!) undecided on the issue of severability. (Jonathan Cohn has a nice overview of what the potential outcomes are here.)

I write merely to be on the record in predicting that the Affordable Care Act will effectively be upheld in its entirely, even if the Court to some extent buys into the activity/inactivity distinction of the challengers. (This could potentially lead, as Cohn notes, to a somewhat Pyrrhic victor for the challengers, one in which the mandate is invalidated but the penalty remains on the books.)

Why? Because Kevin Drum is entirely correct when he writes the following:

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock — but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

The less ideological conservatives on the Supreme Court surely realize this, and I simply can not fathom that they are willing to jettison the Court's institutional legitimacy in order to score a short-term political goal for the Republican Party, on an issue far removed from the core concerns of movement conservatism. 

Perhaps this is naive. But judicial actors, although indisputably political actors, are not partisans in the same sense as legislators, and face far different institutional pressures and constraints. The Court is surely aware that its public approval ratings are at near-historic lows, and the Court is surely aware of what the elite (legal) consensus will be if the ACA is overturned, even in part. (See, e.g., Charles Fried's congressional testimony on the constitutionality of the ACA here, or his reaction to the oral argument here and here.) 

As a result, I continue to believe, contra the conventional wisdom, that the ACA will be upheld either 6-3 or 7-2. I desperately hope I am correct: beyond my concern as a lawyer-citizen, the human cost of a contrary result will be significant (e.g., here), something that is all too often overlooked in discussions of the case.

UPDATE: In discussing this blog post on Facebook, I was reminded of a Dahlia Lithwick dispatch, written prior to oral argument on Florida v. HHS, that echoes and expands upon the point I am trying to make here:

If I am right [that the Justices are concerned about legitimacy], some justices may believe that this isn’t a fight worth having. Not now and not over this issue. ... Given th[e] line up of future cases [concerning congressional redistricting, enforcement of immigration laws, affirmative action, the VRA, gay marriage, and abortion], the five conservatives may want to keep their powder dry for now. I think they will. ... [F]or the court to strike [the ACA] down, the justices would have to pick a fight that wasn’t theirs in the first place [but was rather the Republican "Tea Party" base's fight]. ... The conservative legal elites don’t believe in the merits of this challenge, even if the public does. ... That brings me full circle to the court’s five conservatives. Is it possible that they are sufficiently ideological and political that the grim joy of sticking it to the president and the Congress will lead them to strike down the law? Of course. But .... [t]hey were raised on Reagan-era opposition to abortion and affirmative action, to the perceived indignities of the Voting Rights Act, and objections to the wall erected between church and state. ... They didn’t join the Reagan Administration to return to the glory days before the court expanded the reach of the Commerce Clause ....

That’s why the current fuss being made over the health care cases has offered the court a perfect cover story. They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. then ... And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Although I take it from Dahlia's subsequent dispatches (following oral argument) that she has changed her view on the likely outcome of the ACA litigation, I think her ex ante analysis was prescient and will likely prove correct.