Archives: 07/2010

Is the Supreme Court Conservative?

In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation.  Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”

Times Supreme Court reporter Adam Liptak – generally a sharp and honest broker – surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.”  Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog – I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.

First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable.  Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)?  What about union members suing unions or large corporations suing each other?  What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)?  What about an oil company suing the EPA?  A financial services company suing the SEC (or vice-versa)?

And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims?  What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues?  What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles?  What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood?  Attempts to code such cases – like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.

Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics.  The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty.  It is then obvious that court rulings against those positions must be “conservative.”  Add in the fact that the researchers performing all these analyses –and reporters writing about them – are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.

But you can’t simply code cases, tally up votes, and call it a day.  Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade?  Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct?  Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?

And what about all those unanimous and “odd bedfellow” cases – the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other?  Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause?  Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)?  Or is that judge simply a “libertarian” as a matter of public policy?

While we’re at it, look at the First Amendment.  How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter?  Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”?  (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)

Put simply, law matters.  Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.

In short, Adam, c’mon, covering the judicial branch is not like covering the political branches.  You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.

ADA’s 20th Anniversary

Today marks the 20th anniversary of the Americans with Disabilities Act, and celebratory discussions, events and rallies are underway (sometimes with taxpayer help) in Washington, D.C. and around the country. Few if any of the events will include any panelists who are skeptical about the law, and indeed much press coverage nowadays treats the ADA as if it were uncontroversial, with at best a nod to libertarian commentators who see it as a coercive and fabulously expensive government venture into what ought to be private decision-making. When Kentucky Senate candidate Rand Paul recently voiced some relatively mild criticism of the law, he drew heated criticism for days.

Which is not to say the ADA and related legislation does not continue to generate startling and unsettling results on a regular basis. Thus in recent months a New Jersey jury ordered a rheumatologist to pay $400,000 for not providing a deaf patient with a sign language interpreter at his own expense; the Ninth Circuit ruled that the law may require movie theaters to provide captions and descriptions for blind or deaf viewers; a federal appeals court ruled that the nation’s paper currency unfairly discriminates against the disabled and must be redesigned (thus taking a different view from the National Federation of the Blind, which doesn’t think there’s a problem); a police dispatcher won a settlement in her lawsuit saying she was unfairly discriminated against because of her narcolepsy (tendency to fall asleep at inappropriate times); a large online tutoring service agreed to provide interpreters; miniature golf courses learned they will have to make 50 percent of their holes accessible to wheelchair users; and so forth. On Friday the Department of Justice announced that it would revisit the high-stakes question of whether and to what extent website operators must make their designs and services “accessible” to disabled computer users, perhaps in onerous and expensive ways.

One reason for the law’s immunity from criticism is that it is defended as a matter of identity politics: if you’re against it, then you must be against the people it protects. So it is treated as rude, not merely provocative, to bring up the failure of the original ADA premise that the new law would “pay for itself” by increasing the labor force participation of the disabled (the rate declined instead). Or to question the law’s “all for one, one for all” extension of the disability label to cover alcoholics, the mentally ill, and the mentally retarded, groups whose problems have historically been seen as quite different from those of the blind, deaf or paraplegic. Or to mention the money-driven ADA “filing mills” in California, Florida and other states under which complainants roam the land filing hundreds of similar complaints against local businesses which their lawyers then convert into assembly-line cash settlements.

No, the most suitable way to mark an identity-politics milestone may be to turn to those who have been obliged to think through some of the identity-politics issues from the inside. Among those who’ve criticized the ADA from a disabled perspective are Russell Redenbaugh, a blind businessman and member of the U.S. Civil Rights Commission (“My own fear is that the ADA implementing regulations can have a chilling effect on the hiring of the disabled.”), attorney and wheelchair user Julie Hofius (law makes job-seeking harder by “inhibiting free discussion between interviewer and interviewee”), and Greg Perry, author of the book Disabling America: The Unintended Consequences of the Government’s Protection of the Handicapped (“caring by gunpoint”). Their writings might be a place to start in figuring out whether we should aspire to another 20 years of ADA more intense than the last.

The Politics of WikiLeaks

In publishing a massive trove of government documents on the war in Afghanistan, WikiLeaks has done a useful thing. And because it often publishes information that is embarrassing to government, rather than dangerous to it, WikiLeaks is a good thing for democracy.

I say that to prevent the criticism below from getting me labeled as part of an effort to silence WikiLeaks or distract from the news it generates.

For starters – and this is more about the media than WikiLeaks – there’s the fact that thus far there is little new here. As we saw last week with the Washington Post’s Top Secret America blockbuster, the media fetishizes secret information, even when it merely elaborates on stories we’ve already heard.

My problem with WikiLeaks is its practice of stamping its politics on its leaked documents. For example, in April, when it released that gruesome video of U.S. Apache helicopter pilots in Iraq enthusiastically killing civilians that they mistook for insurgents, WikiLeaks titled the video “Collateral Murder,” despite the obvious efforts of the pilots to comply with the rules of engagement.

Now rather than simply put its documents on the web and let people draw their own conclusions, WikiLeaks founder Julian Assange holds a self-congratulatory press conference where he declares “it is our experience that courage is contagious” and compares the document release not just to the leak of Pentagon Papers but to the opening of the Stasi archive in East Germany. Certainly U.S. forces in Afghanistan have committed war crimes (it would be hard to run a war of this scale and avoid them completely) and spun the war’s progress. If these documents reveal more of those doings, that’s a good thing. But even the harshest critic of the war’s conduct ought to be able distinguish it from the activities of a Stalinist secret police force. I bet that the Stasi, faced with a similar leak problem, would have found a way to plug it by now.

Grandiosity is also evident in Assange’s recent response to transparency advocate Steve Aftergood’s critique of WikiLeaks seeming lack of privacy standards. In one paragraph, Assange irrelevantly brags that he spoke before European parliamentarians, asserts that “WikiLeaks not only follows the rule of law, WikiLeaks is involved in creating the law,” announces its opposition to “plutocrats and cashed-up special interests” (not secrecy?), and then claims to have inspired Senate legislation to make Congressional Research Service reports public, even though bills to that effect predate his organization’s existence by nearly a decade.

In the future maybe we can get Wikileaks’ product without its commentary.

Who Said That about National Standards and Tests!?

There are lots of reasons to be very concerned about the national standards and tests barreling in silence toward education domination. Below, I offer several of those reasons – and one possible standards alternative – along with links to material expanding on the big concerns. Give ‘em a read, and as you do play a little game: See if you can guess who is quoted in each point:

  • “[T]he Department of Education – without explicit congressional authority – would use discretionary dollars to launch the test-development process….Congress should have something to say about the arrangements for so momentous a shift in American educational federalism.”
  • “The Education Department has been rushing to put the…plan into operation….Critics have been ignored.”
  • “The main contract so far is with the Council of Chief State School Officers….’The chiefs,’ as they are known in educator-land, are the Washington-based association of state superintendents, and they form one of the establishment’s most change averse crews.”
  • “It doesn’t judge certain information to be important and certain books to be best, but, rather, partakes of fashionable academic relativism.”
  • “[T]he whole idea might be privatized [see page 20], turned into a commercial (or philanthropic) testing program…with no government entanglement or federal funds.”

So who said these things? Me? Jay Greene? Jennifer Marshall and Lindsey Burke? The folks at the Pioneer Institute?

No, it wasn’t any of those national-standards opponents. It was, in fact, none other than Chester Finn: president of the Thomas B. Fordham Institute; leading standards-and-testing proponent; and diagnoser of paranoia among those who worry about the same sorts of things he complains about above!

So what’s going on here? Does Finn support national standards and testing rushed into place by the Department of Education, without Congressional approval, and driven largely by “The Chiefs,” or doesn’t he?  Should we, as Finn wrote in the same piece that produced the quotes above, “apply the brakes” to this “before a wreck occurs”? Are private standards and tests really a preferable option?

What I can say to help shed light on these questions is that the quotes above come not from something new, but a 1997 Weekly Standard article by Finn opposing Clinton administration efforts to get states to adopt national standards and tests.  (You can find the article here but have to subscribe to read it). These are not comments directed at the current national standards effort.

What I can’t say – and what is, of course, most important – is what has caused Finn’s tune on national standards and tests to change. Why such concern in 1997 about so many things that seem to bother him little today? Why, for instance, was it a terrible idea in 1997 to rush implementation of national standards and tests, but it’s not a deal-breaker today? Why was it troubling that CCSSO had a central role in 1997, but it’s apparently hunky-dory in 2010? Why was it a bad thing to blow off critics in 1997, but alright today?

No doubt Finn can offer many decent reasons why numerous things that troubled him in 1997 don’t do so today, but I for one can’t think of any. And before we go any further along the perilous road to nationalization, I’d sure like to know what those reasons are.

ObamaCare Remains Unpopular, or Round Two of My Exchange with Maggie Mahar

Maggie Mahar responds to my response to her critique of Michael Tanner’s claim that ObamaCare is deeply unpopular.  Mahar’s alternative narrative, espoused by many on the Left, is that “the more voters learn more about the reform legislation, the more they seem to like it.”

Mahar shows that her narrative works if you begin looking for a trend at the high-water mark of opposition, if you look at a few select polls, if you look at not-so-straightforward poll questions, if you interpret simultaneous declines in both support and opposition as growing support, and if you devise a rationale for ignoring the views of those who most oppose ObamaCare.  Which is to say, her narrative doesn’t work.  ObamaCare remains deeply unpopular.

Mahar claims that support for repealing ObamaCare has been trending downward since reaching its high water mark of 63 percent on May 22, as measured by the polling firm Rasmussen Reports. This was shrewd; if you’re going to look for a downward trend, the high water mark is an excellent place to start. But it doesn’t paint an accurate picture of what’s been happening with public support for repeal. Starting on the enactment date, as I wrote before, “Rasmussen finds opposition to repeal hovering between 32-42 percent, and support for repeal hovering between 52-63 percent, with no clear trend on either side.” No clear trend, and a majority consistently supports repeal.  Check out Rasmussen’s data and see for yourself.

Next, Mahar selects a few polls that do support her narrative (e.g., Gallup, NBC/Wall Street Journal, Kaiser Family Foundation).  For example, in her first post, Mahar cites an NBC/Wall Street Journal poll from June that suggests voters would prefer a Democratic congressional candidate who didn’t want to repeal ObamaCare over a Republican who did. Aside from the results being barely statistically significant, the question she cites introduces confounding factors such as party affiliation. When that same poll asked a more straightforward question, it found that 47 percent of respondents would be enthusiastic about or comfortable with a candidate’s desire to repeal ObamaCare, compared to 40 percent who would have reservations or be uncomfortable.

Moreover, selecting just a few polls probably paints a less accurate picture than looking at something like, which aggregates all polls and therefore (presumably) cancels out the quirkiness of individual polls.

The above graph shows that opposition to ObamaCare surged after Obama’s inauguration and surpassed support just as the debate began in earnest in July 2009. (That rising opposition fueled the angry town halls of August 2009.) In other words, from the moment the public began to focus on ObamaCare, they didn’t like what they saw, and opponents have out-numbered its supporters for 12 months now.  (Note: the above graph only includes polls that ask the straightforward support/oppose question. It does not include Rasmussen’s polls showing broad and deep support for repeal, nor the NBC/Wall Street Journal and Kaiser Family Foundation polls Mahar cites, which show weaker support for repeal. It would be interesting to see aggregate the “repeal” polls.)

When Mahar turns her attention to all available polls, she argues, “if you’re looking for a trend, it’s only sensible to begin the day the bill was signed, March 23.” Why?

It was only after the final bill was passed, that people could begin to offer an opinion.

How true that is.  Also: mere voters can hardly be expected to offer an opinion about would-be presidents until after Inauguration Day.

One would think that Mahar would only insult the public’s intelligence, and dismiss the views that a plurality/majority of adults consistently expressed for 9 months, if it would help to bolster her argument.  But it doesn’t.  When we look at the trend in public opinion on ObamaCare since the signing ceremony, we see that opposition and support are declining:

If the trendline showing declining opposition to ObamaCare supports Mahar’s narrative (“the more voters learn…the more they seem to like it”), the trendline showing declining support for ObamaCare supports the opposite narrative (“the more voters learn, the less they like it”).

But recall that Mahar claims that voters are warming to ObamaCare.  When we look only at polls of adults who are registered to vote, there doesn’t appear to be any change since ObamaCare became law:

Looking just at voters also reveals that the opposition leads support by an even wider margin (9.5 percentage points).

(NB: These graphs will update automatically as new polling information becomes available, which may affect the trendlines.  My description of the trends and the numbers I cite are current as of July 26, 2010.  Also, readers using Internet Explorer have reported difficulty seeing the trendlines in user-generated graphs from

Finally, Mahar channels Marion Barry, who (in)famously claimed that if you don’t count murders, the crime rate in Washington, D.C., is really quite low.  She cites a poll that “suggests that opposition is largely confined to the one group that already has universal coverage–seniors,” and then invokes Ezra Klein’s rationale for dismissing their opinions:

[S]eniors, of course, aren’t opposed to government-run health care. They love their Medicare, and insofar as they have a policy concern here, it’s that the Affordable Care Act will interfere with the single-payer system they rely on.

It is nonsense to say that ObamaCare is popular if we just ignore the views of people who will suffer.  If ObamaCare weren’t taking the money for its insurance-company bailouts new government spending out of Medicare, it would have to take that money from somewhere else and those people would be angry.  (Actually, since those Medicare cuts probably won’t happen, we’ll get to see that scenario play out.)  Even if ObamaCare were popular among non-seniors, all Mahar and Klein would have established is that massive new government entitlement programs would be popular if we didn’t have to pay for them.

Washington State Considers Privatizing the System

Washington state legislators will reportedly have to cut billions from the budget when they reconvene next session, and governor Christine Gregoire has commissioned a privatization study to see if taking the big step makes economic sense. Washington’s public schools spend about $13 billion annually (around $13,000/pupil – see Table 8 here), so increasing the system’s efficiency has the potential to solve the state’s budget crisis….

…which is why many Washington taxpayers will be disappointed to learn that the governor’s privatization study is only for the ferry system, not the schools. Since ferry-travelers pick up about two thirds of the system’s operating costs, its total burden on taxpayers is 26 times smaller than that of the public schools. Even if ferry operations could magically be made entirely free, it wouldn’t solve WA’s budget problems.

Of course there’s a widespread belief that schools have to be run by the state to build social harmony and preserve the republic, but these beliefs, though deeply held, have no basis in reality. The civic-mindedness of independent school students/graduates is typically equal to or greater than that of public school students/graduates, and having a single official system of state schools actually creates social conflict over the curriculum – conflict that increased parental choice would lessen.

So not only would liberating Washington education from the shackles of monopoly help to control costs, it would better realize the ideals that a public education system is meant to advance.

Gov. Gregoire?