U.S. Supreme Court

Supreme Court Page Updated

I have updated “U.S. Supreme Court: Lines of Succession and Ideological Alignment” to cover the recently completed October 2016 term. Observations:

The fairly harmonious 2014 term was succeeded by more typical (i.e., more divided) 2015 and 2016 terms. In fact, 2016 was even more polarized than 2015.

Kennedy’s long-standing proneness to defect more often than his “conservative” colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. Kennedy probably should be counted as a member of the Court’s “liberal” wing, but I won’t make that call until the end of the 2017 term. Perhaps Kennedy will have done the right thing and retired by then.

Roberts is more in step with the “conservative” wing than he had been in the previous three terms, but he isn’t back to where he was in 2005-2011.

It’s Official: Kennedy Is Now a Member of the Court’s “Liberal” Wing

Anthony Kennedy’s authorship of the majority (5-4) opinion in Obergefell v. Hodges confirmed his conversion to the Supreme Court’s “liberal” wing. And I have the numbers to prove the conversion, which occurred in the Court’s October Term 2014 (OT14).

The following analysis is based on the frequency of the justices’ disagreement with their colleagues in non-unanimous cases. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) To illustrate the statistics, I’ll take Justice Kennedy’s record in the non-unanimous cases of OT14 as an example:

  • Kennedy disagreed with his former allies — Roberts, Scalia, Thomas, and Alito — a total of 125 percent of the time. His average disagreement with each ally was 31 percent (125 percent divided by 4).
  • Kennedy disagreed with the four “liberals” 81 percent of the time, for an average of 20 percent.
  • Dividing the second average by the first one, I find the ratio of the two averages, which is 0.65 in this case. That is, Kennedy disagreed with his former opponents (the “liberals”) only about two-thirds as often as he disagreed with his former allies.

In sum, the higher the ratio, the more often a justice has agreed with his supposed allies; the lower the ratio, the less often a justice has agreed with his supposed allies. A ratio of less than 1 means that a justice has moved to the other side of the Court’s ideological divide — as Kennedy did in OT14.

The following table summarizes the ratios for each justice in each of the last ten terms, from OT05 through OT14. Justices are grouped by wing (leaving Kennedy in the conservative wing, for purposes of this post) and then listed in order of seniority (the Chief is always first, by virtue of his office). Green and  red shadings indicate the most “agreeable” and most “disagreeable” ratios for each wing and each term. Trends are simple linear estimates of each justice’s performance in OT15, given his or her record in preceding years. (Right-click to open a larger image in a new tab.)

Supreme Court_ratios of disagreements among justices_OT05-OT14
Derived from statistics reported and archived by SCOTUSblog. Specific sources are listed at the bottom of this post. Justice O’Connor’s truncated participation in OT06 is omitted.

The year-to-year variations in mean ratios suggest that some terms are more fraught with ideologically divisive cases than others. I therefore normalized the year-to-year results by dividing each justice’s ratio for each year by the mean ratio for that justice’s wing. The following table gives the normalized ratios. (Right-click to open a larger image in a new tab.)

Supreme Court_normalized ratios of disagreements_OT05-OT14

Kennedy’s unsurprising but definite lurch to the left is a less compelling story than the degree of cohesion among the the “liberal” justices in OT14. Look again at the first graphic and focus on the range of ratios for OT14:

  • 4.27 to 5.15 for the “liberals”
  • 1.32 to 1.80 among the four conservatives (counting Roberts as one despite his wobbliness).

I take this as evidence that the conservatives tend to think carefully about the cases before them; whereas, the “liberals” are bent on finding clever words to justify their predictable positions. That was certainly true of Kennedy’s fatuous opinion in Obergefell v. Hodges, which the dissenters exposed as a sophomoric flight of fancy.

The left’s cohesion on the Court is of a piece with its (generally successful) political strategy: Agree on a goal, stick together, sing the same tune, ignore the facts, and (usually) win.

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Related posts:

The Court in Retrospect and Prospect
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
A Declaration of Civil Disobedience
Questioning the National Debt
Rethinking the Constitution: “Freedom of Speech, and of the Press”
A Balanced-Budget Amendment and the Constitution
The Repealer
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Our Perfect, Perfect Constitution
Constitutional Confusion
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution
An Agenda for the GOP
Wrong for the Wrong Reasons
The Court in Retrospect and Prospect (II)
The States and the Constitution
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Principles of Actionable Harm
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America

See also U.S. Supreme Court: Lines of Succession for term-by-term and justice-by-justice rates of disagreement in non-unanimous cases.

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Sources of statistics about disagreements in non-unanimous cases, by term (in ascending chronological order):

http://www.scotusblog.com/movabletype/archives/GULCSupCtInstituteFinalReportOT2005_30June06.pdf

http://www.scotusblog.com/archives/SuperStatPack.pdf; http://www.scotusblog.com/wp-content/uploads/2008/06/nonunan07.pdf

http://www.scotusblog.com/wp-content/uploads/2009/06/justice-agreement.pdf

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB_OT10_stat_pack_final.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/SB_agreement_OT11_final.pdf

http://scotusblog.com/wp-content/uploads/2013/06/agreement_OT12.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/SB_tables_OT13.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2015/06/SCOTUSblog_agreement-tables_OT14.pdf

Signature

“U.S. Supreme Court” Updated

No, Justice Ginsburg hasn’t retired (unfortunately). But I have revised “U.S. Supreme Court: Lines of Succession.” a large table that traces the lineage of each of the Court’s seats. The new version delineates each justice’s term more clearly; still shows which justices were nominated by which presidents; and now enables the reader to see who served with each chief justice.

The “Roberts Court,” for example, has thus far included Roberts, Souter, Sotomayor, Breyer, Kennedy, Stevens, Kagan, Ginsburg, O’Connor, Alito, Scalia, and Thomas. (That list comes from reading my table left to right. In order of merit, it would be Alito, Thomas, Scalia, Roberts, Kennedy, O’Connor, and Souter or Breyer — with Stevens, Ginsburg, Sotomayor, and Kagan vying for the Ninth Circle of Hell.)

The three-part table packs a lot of information, so the type is on the small side. For most readers, a 125-percent zoom should do the trick.

The Court in Retrospect and Prospect (II)

Christopher Ingraham, a contributor to The Washington Post’s Wonkblog points with alarm at the increasing frequency of 5-4 decisions by the U.S. Supreme Court:

Supreme Court_5-4 decisions 1946-2013What does Ingraham make of the graph?

These numbers show that the political polarization that has gridlocked Congress and divided the American public has also made its way into the halls of the nation’s highest legal authority.

Ah, gridlock, the bane of “liberals,” who want no impediment to the growth of the central government’s already vast power. Too much power isn’t enough for a “liberal.”

In fact, if you look carefully at the graph — and ignore the spurious trend line — you’ll see no discernible trend until the 1980s. It was only then that conservatives (staunch and wavering) began to replace Democrat appointees and Eisenhower’s RINOs. Nixon’s appointees Warren  E. Burger (1969 – 1986), Lewis F. Powell (1972 – 1987), and William H. Rehnquist (1972 – 2005) were joined by Reagan’s appointees Sandra Day O’Connor (1981 – 2006) and Antonin Scalia (1986 – ). Subsequently, Anthony M. Kennedy (1988 – ) replaced Powell (a wash); David H.  Souter (1990 – 2009) replaced William J. Brennan (a wash); Clarence Thomas (1991 – ) replaced Thurgood Marshall (a big plus); Ruth B. Ginsburg (1993 – ) replaced Byron R. White (a minus); Stephen G. Breyer (1994 – ) replaced Harry A. Blackmun (a wash); John G. Roberts (2005 – ) replaced Rehnquist (a wash); Samuel A. Alito (2006 – ) replaced O’Connor (a big plus); Sonia Sotomayor (2009 – ) replaced Souter (a slight minus); and Elena Kagan replaced John Paul Stevens (a wash). (Source: “U.S. Supreme Court: Lines of Succession.”)

In sum, the Court began to lean right in the 1980s, and has gradually leaned a bit more to the right, thanks mainly to the addition of Thomas, Roberts (despite the Obamacare decision), and Alito — and no thanks to the four Clinton-Obama appointees (Ginsburg, Breyer, Sotomayor, and Kagan). This tilt caused a rising trend of 5-4 decisions from the 1980s to the present. Some of those decisions were pro-liberty; some of them were pro-license and pro-government. But a 5-4 pro-liberty decision is better than any kind of anti-liberty decision. So, I’m thankful for “gridlock” on the Court, and Ingraham and his ilk would be, too, if they weren’t mindless parrots.

What’s in store for the Court? The recent past holds come clues. I begin with the Court’s first nine terms with Roberts as Chief Justice. (Each term begins on the first Monday in October, and is known by the year in which it starts. Thus Roberts’s first term was October Term 2005, or OT05. The current term, and ninth for Roberts, which won’t end officially until the day before the first Monday in October 2014, is OT13. See Rule 3, here.)

The following analysis begins with statistics that I devised five years ago. Here’s how I described the statistics, taking Justice Alito’s record in the non-unanimous cases of OT08 as an example:

Alito … was in disagreement with his four “allies” (in non-unanimous cases) a total of 72 percent of the time …, for an average of 18 percent per ally. Alito was in disagreement with his four “opponents” a total of 272 percent of the time, for an average of 68 percent per opponent.

(The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.)

The percentages for Alito yield a ratio of 3.8 (68 percent divided by 18 percent). In other words, on average, Alito disagreed with members of the “liberal” wing 3.8 times more frequently than he disagreed with members of his own “conservative” wing. Similarly, in the same term, Justice Breyer disagreed with members of the “conservative” wing in 44 percent of non-unanimous cases, while he agreed with members of his own “liberal” wing in 30 percent of non-unanimous cases, for a ratio of 1.5.

The following table summarizes the ratios for each justice in each term. Justices are grouped by wing and then listed in order of seniority (the Chief is always first, by virtue of his office). Pale green and pale red shadings indicate the most “agreeable” and most “disagreeable” ratios for each wing and each term. Trends are simple linear estimates of each justice’s performance in OT14, given his or her record in preceding years.

Supreme Court_disagreement among justices_ratios
Derived from statistics reported and archived by SCOTUSblog. Specific sources are listed at the bottom of this post. Justice O’Connor’s truncated participation in OT06 is omitted.

The year-to-year variation in mean ratios suggests that some terms are more fraught with ideologically divisive cases than others. I normalized the year-to-year results by dividing each justice’s ratio for each year by the mean ratio for that justice’s wing. The following table gives the normalized ratios:

Supreme Court_disagreement among justices_normalized

The numbers should be unsurprising to anyone who follows the Court’s rulings. Kennedy and Breyer are the moderates of their respective wings; Scalia, Thomas, Alito, Ginsburg, Sotomayor, and Kagan are the firebrands of their respective wings. Roberts and Scalia seem to be moving to a slightly different beat than their conservative confreres, but neither justice seems to be on the verge of desertion from the conservative wing.

How long might the current balance remain in effect? Consider the justices’ ages:

Supreme Court justices_ages

Ginsburg insists that she has no plans to retire. If that’s true, and if she doesn’t retire before the end of Obama’s presidency, she may be replaced by a Republican appointee. (Obama’s current deep unpopularity stokes the flame of hope for a GOP-controlled Congress and White House come 2017.) If that were to happen, the Court could swing decisively in a conservative direction. Breyer’s post-Obama retirement would be frosting on the cake.

It would be desirable if Scalia and (especially) Kennedy were to offer themselves up for replacement between 2017 and 2020 or 2024 — if the GOP is in control during those years. After that, who knows what will happen, given the unpredictability of events and the fickleness of the electorate.

The GOP appointees should be relatively young Burkean conservatives,  If they are, something resembling the real Constitution might yet arise from the ruins of 20th century jurisprudence.

*     *     *

Related posts:
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
A Declaration of Civil Disobedience
Questioning the National Debt
Rethinking the Constitution: “Freedom of Speech, and of the Press”
A Balanced-Budget Amendment and the Constitution
The Repealer
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Our Perfect, Perfect Constitution
Constitutional Confusion
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution
An Agenda for the GOP
Wrong for the Wrong Reasons

__________
Sources of statistics about disagreements in non-unanimous cases, by term (in ascending chronological order):

http://www.scotusblog.com/movabletype/archives/GULCSupCtInstituteFinalReportOT2005_30June06.pdf

http://www.scotusblog.com/archives/SuperStatPack.pdf; http://www.scotusblog.com/wp-content/uploads/2008/06/nonunan07.pdf

http://www.scotusblog.com/wp-content/uploads/2009/06/justice-agreement.pdf

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB_OT10_stat_pack_final.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/SB_agreement_OT11_final.pdf

http://scotusblog.com/wp-content/uploads/2013/06/agreement_OT12.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/SB_tables_OT13.pdf

The U.S. Supreme Court: Lines of Succession

I have added a page of that title to this blog. Readers may access it through a link near the top of the left sidebar. The page includes a large table that gives the dates of service and lines of succession for every person who has served on the U.S. Supreme Court. This is the text that accompanies the table:

Though there are now only nine justices and nine seats on the Supreme Court, this table lists eleven lines of succession. There is one for the chief justiceship and ten for the associate justiceships that Congress has created at one time an another by changing the size of the Court. In other words, two associate justiceships have “died out” in the course of the Court’s history. The present members of the Court, in addition to the chief justice, hold the first, second, third, fourth, sixth, eighth, ninth, and tenth associate justiceships created by Congress.

The name of every justice is associated with the name of the president who nominated that person to a justiceship (chief or associate). The first date under a justice’s name is the date on which he or she took the oath of office (or was appointed in a recess of the Senate). There is a second date below the name of every justice (except for the nine now serving). That date is the date on which the person left the Court, by death or resignation, and that date may be (and usually is) associated with a president other than one who nominated the justice. The date of a justice’s departure from the Court usually appears directly above the name of the next justice in the line of succession for the same seat on the Court.

Because there is a separate line of succession for the chief justiceship, persons who were already on the Court and then elevated to the chief justiceship are listed in two different places. Also, the names of a few justices appear in more than one place because they served non-consecutive terms on the Court.

Another Thought or Two about the Obamacare Decision

In the preceding post, I alluded to commentators who found silver linings in Chief Justice Roberts’s alignment with the Court’s liberal wing in upholding the individual mandate. I feel compelled to say more about the supposed silver linings.

I begin with Ilya Somin, writing at The Volokh Conspiracy:

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity.

But, as Somin points out:

The problem is that Roberts then proceeds to “empower Congress to make those decisions [to buy health insurance]” for us under the guise of imposing taxes.

Why did Roberts not simply join the four dissenting justices and throw out Obamacare while making clear the limits on Congress’s Commerce Clause power? The same (hypothetical) majority opinion also would have found unconstitutional the feds’ expansion of Medicaid.

Sean Trende, writing at RealClearPolitics, has much to say in Roberts’s defense, including this:

Thursday’s health care ruling shocked most observers. It upheld the health care law as constitutional. But rather than find that the law was justified under Congress’ authority to regulate commerce, it instead found it was justified only under Congress’ power to tax. It also imposed limits upon Congress’ ability to condition spending grants to the states upon those states taking certain steps. To my knowledge, former Solicitor General Walter Dellinger was the only person who thought that the court would ultimately rule on those grounds. I certainly was surprised.

Even more surprising, the decision was 5-4, and Chief Justice John Roberts authored the majority opinion upholding the law, rather than Anthony Kennedy. Conservatives are flabbergasted by the chief’s decision (or, in their view, betrayal)….

But I think if you scratch the surface here, Roberts embarked upon a gambit much like [Chief Justice John] Marshall did 200 years ago [in Marbury v. Madison]

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented….

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it….

And the decision may help to ensure a GOP sweep in November by energizing unenthusiastic conservatives and fiscally prudent independents.

Trende continues:

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers….

The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote….

Roberts has basically … [i]nsulate[d] the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues….

Yes, but Roberts and his conservative brethren have life tenure, and what the public thinks about the Court surely is less important that what the Court does. Giving ground to seem “nice” is a classic conservative blunder.

Perhaps I can find solace in a column by Tom Socca, writing at Slate:

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered….

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well)….

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

This strikes me as more of the same. But perhaps Trende and Socca are on to something. Roberts, by reaching out the the Court’s left, may have gained useful allies for future fights. Kennedy, despite his surprising (to me) absolute opposition to Obamacare, can and will stray off the conservative reservation without warning.

There is also the important and still-to-be-decided issue of Obamacare’s effects on religious freedom. This is from a post by Sarah Marshall and Jennifer Torre at The Foundry:

…The Court’s ruling to uphold Obamacare doesn’t mean the law has cleared its legal challenges, however. Twenty-three federal lawsuits against Obamacare’s Health and Human Services (HHS) mandate—which goes into effect on August 1—now take on added urgency….

The HHS anti-conscience mandate is a completely separate rule from the individual mandate, and its constitutionality was not considered by the Supreme Court in the cases decided today. The HHS mandate, along with the individual mandate and the rest of Obamacare, still presents a clear threat to individual and religious liberty. Nothing short of full repeal of the statute will adequately protect our freedoms from this federal overreach.

The next legal battleground against Obamacare resides in the fight to protect employers from the coercive requirement to provide coverage of abortion-inducing drugs, contraception, and sterilization under the HHS mandate….

Obamacare’s anti-conscience mandate affords the narrowest religious exemption in federal law, effectively covering only formal houses of worship. Countless other religious employers, like schools, hospitals, and religious charities, are forced to provide coverage for the mandated services despite moral or religious objections—simply because they step outside the four walls of a church to serve others.

Creating the choice to violate conscience or forgo providing health insurance entirely—and risk hefty fines under Obamacare—the HHS mandate profoundly and adversely affects many employers and the people they serve….

Perhaps this is one of the fights anticipated by Roberts. And perhaps he wants to win it by more than 5-4 (or to ensure that he wins it). Robert John Araujo of Mirror of Justice has some related thoughts:

[The following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

…[I]t would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future [as discussed in the preceding quotation].

Could Roberts be angling to enlist Ginsburg as an ally in the looming freedom-of-conscience cases? That strikes me as a long shot because Ginsburg — “good” statist that she is, will no doubt find a way to wiggle out of her implied commitment to the free exercise of religion. But Roberts’s real targets may be Justices Breyer and Kagan, who joined his opinion — including the ruling that the expansion of Medicaid was unduly coercive of the States.

If Roberts has made the political calculations attributed to him — and I wouldn’t be surprised if he has — my only wish is that his calculations prove correct. If they are not, he simply will have wasted what would have been a perfectly good majority opinion, namely, the dissent of Justices Scalia, Kennedy, Thomas, and Alito.

Obamacare, Slopes, Ratchets, and the Death Spiral of Liberty

Today’s ruling by the U.S. Supreme Court in the matter of Obamacare (National Federation of Business et al. v. Sebelius, Secretary of Health and Human Services, et al.) is portrayed by some commentators as a victory of sorts for limited government. Consider the following excerpts of the Syllabus:

[T]he individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause….

The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.”…  The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”…

Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power…. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

So far, so good, but

for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”… In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”… the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax….

The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.”…

Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax.

What a strange tax it is that must be paid to the government in order to breathe life into a program for which there is no constitutional remit in the “limited and enumerated powers” of the government. The government’s powers to tax and spend are not open-ended; they must serve a constitutional purpose.

There is more:

[T]he Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.”… Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs…. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism….

Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The constitutional violation is fully remedied by precluding the Secretary from … withdraw[ing] existing Medicaid funds for failure to comply with the requirements set out in the expansion.

Again, gratifying as the holding may be to some parties, it assumes (and therefore affirms) the constitutionality of an act that “meet[s] he health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” Where does the Constitution set forth Congress’s power to do any such thing?

My outrage is echoed in the dissent by Justices Scalia, Kennedy, Thomas, and Alito; for example:

The striking case of Wickard v. Filburn, … , which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers… Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

Amen to that. And the same goes for Social Security and Medicare. (My words, not the words of the dissenting justices, unfortunately.)

Where does today’s ruling leave Americans? Further down the slippery slope to serfdom. The “slippery slope” is

an argument for the likelihood of one event or trend given another. Invoking the “slippery slope” means arguing that one action will initiate a chain of events that will lead to a (generally undesirable) event later. The argument is sometimes referred to as the thin end of the wedge or the camel’s nose.

That is to say, once it became accepted that the federal government could establish programs like Social Security, Medicare, and Medicaid, it became relatively easy to expand those programs to encompass the “national emergency” of the day. And so, the stage has been set for  government-run health care in the United States, with all that goes with it: long queues, worse care, rationing, and death panels, and more.

Another metaphor for the inexorable engrossment of state power is the ratchet effect,

the commonly observed phenomenon that some processes cannot go backwards once certain things have happened, by analogy with the mechanical ratchet that holds the spring tight as a clock is wound up.

The acceptance of the status quo (Social Security, Medicare, and Medicaid) as a baseline sets the stage for a ratcheting up to a new, more expansive and expensive status quo (Obamacare), on the ground that if X is good, X+ will be better. That X is good and X+ will be better are articles of faith, which become widely accepted without serious consideration of the burden they impose on the most productive citizens, the negative effect of that burden on the nation’s economy, or the liberty of the people. It has been heartening that most Americans have opposed Obamacare, in the main because of the perceived insult to liberty known as the individual mandate. But, alas, a majority of the Supreme Court has found a legalistic way in which to ratchet up the mainspring of government power.

Perhaps the best metaphor for today’s ruling is the death spiral. Reliance on government usually creates more problems than it solves. But, having become accustomed to relying on government, most Americans rely on government to deal with the problems caused by government’s previous enactments. That only makes matters worse, which causes Americans to rely further on government, etc., etc. etc.

In the case of Obamacare, what we have is a reaction to the high costs of medical services and the presumed failure of markets to provide adequate health care for large chunks of the population. It escapes the notice of most Americans — and is of no interest to most politicians — that the high costs and supposed “market failures” are due to government action: tax subsidies for employer-provided insurance (which results in an artificially high demand for medical services); mandated insurance coverages; barriers to interstate competition in insurance markets; the FDA’s long, death-inducing approval process for new drugs; the AMA’s government-sponsored stranglehold on the training and licensing of doctors; a similar stranglehold on the establishment of health-care facilities; and on and on.This is the real “national emergency,” which today’s majority blithely ignored in its quest to find an extra-constitutional (i.e., precedential) basis for the further expansion of government power.

It is long past time for Americans to declare their independence from the legislative, executive, and judicial tyranny under which we labor for the benefit of politicians, bureaucrats, and freeloaders.

Directly related posts:
Fear of the Free Market — Part I
Fear of the Free Market — Part II
Fear of the Free Market — Part III
Free-Market Healthcare
Social Security Is Unconstitutional
Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?

Posts about government power, its effects, and ways to combat it:
FDR and Fascism
The People’s Romance
Fascism
Fascism with a “Friendly” Face
Secession
Democracy and Liberty
The Interest-Group Paradox
Is Statism Inevitable?
Inventing “Liberalism”
The Price of Government
A New, New Constitution
Zones of Liberty
Fascism and the Future of America
Secession Redux
A New Cold War or Secession?
The Price of Government Redux
The Real Constitution and Civil Disobedience
The Near-Victory of Communism
A Declaration of Independence
The Mega-Depression
Tocqueville’s Prescience
First Principles
As Goes Greece
Accountants of the Soul
Ricardian Equivalence Reconsidered
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
Society and the State
I Want My Country Back
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Bowles-Simpson Report
The Bowles-Simpson Band-Aid
Regime Uncertainty and the Great Recession
Re-Forming the United States
The Stagnation Thesis
Taxing the Rich
More about Taxing the Rich
America’s Financial Crisis Is Now
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Regulation as Wishful Thinking
The Real Multiplier
Vulgar Keynesianism and Capitalism
Why Are Interest Rates So Low?
The Commandeered Economy
Estimating the Rahn Curve: A Sequel
In Defense of the 1%
The Real Multiplier (II)
Lay My (Regulatory) Burden Down
The Burden of Government
Constitutional Confusion
Reclaiming Liberty throughout the Land
Economic Growth Since World War II
More Evidence for the Rahn Curve

In Mourning

I am in mourning for liberty in the United States, which has been killed by today’s ruling by the U.S. Supreme Court. Thus the black band at the top of this blog.

More to come.

UPDATE (09/06/13)

I’ve gone back to red because I’m fighting mad, and plan to stay that way.

The Shape of the Supreme Court

UPDATED 08/09/10

With the replacement of Justice John Paul Stevens by Elena Kagan, the Court’s presidential provenance looks like this*:

Reagan — Antonin Scalia (1986), Anthony Kennedy (1988)

Bush I — Clarence Thomas (1991)

Clinton — Ruth Bader Ginsburg (1993), Stephen Breyer (1994)

Bush II — John Roberts (2005), Samuel Alito (2006)

Obama — Sonia Sotomayor (2009), Elena Kagan (2010)

In terms of age, the Court looks like this:

Ginsburg, 77

Scalia, 74

Kennedy, 73

Breyer, 71

Thomas, 61

Alito, 60

Sotomayor, 55

Roberts, 55

Kagan, 50

Barring an unexpected death or retirement, Ginsburg will be the next to go. Like Souter and Stevens, she is likely to retire on Obama’s watch, in an effort to maintan the Court’s present ideological balance. Obama’s picks have not, and likely will not, alter the Court’s ideological balance, but they will create a core of youngish “liberal” justices, who will serve for decades.

The best that we devoted adherents of the Constitution can hope for is a one-term Obama-cy and a Republican successor who will do a better job of selecting justices than Ford (Stevens), Reagan (O’Connor and Kennedy), and G.H.W. Bush (Souter). In fact, the election of a Republican is critical because the person who sits in the White House from 2013 to 2017 or 2021 may well have to replace three justices — most likely Scalia, Kennedy, and Breyer.

Imagine the future of the Court if those three justices — an eccentric originalist, a wavering centrist, and a semi-hard leftist — could be replaced with sober, collegial originalists. They would outnumber Kagan, Sotomayor, and the next Ginsburg by 6-3, setting the stage for an era of constitutional resurgence.

__________

* For those of you who are interested in the Court’s genealogy, the following lines of succession have led to the present Court (* = elevated from associate justice to chief justice):

Chief Justice
John Jay (1789-1795)
John Rutledge* (1795-1795)
Oliver Ellsworth (1796-1800)
John Marshall (1801-1835)
Roger Brooke Taney (1836-1864)
Salmon Portland Chase (1864-1873)
Morrison Remick Waite (1874-1888)
Melville Weston Fuller (1888-1910)
Edward Douglass White* (1910-1921)
William Howard Taft (1921-1930)
Charles Evans Hughes* (1930-1941)
Harlan Fiske Stone* (1941-1946)
Fred Moore Vinson (1946-1953)
Earl Warren (1954-1969)
Warren Earl Burger (1969-1986)
William Hubbs Rehnquist* (1986-2005)
John Glover Roberts Jr. (2005-)

Associate-1
James Wilson (1789-1798)
Bushrod Washington (1799-1829)
Henry Baldwin (1830-1844)
Robert Cooper Grier (1846-1870)
William Strong (1870-1880)
William Burnham Woods (1881-1887)
Lucius Quintus C. Lamar (1888-1893)
Howell Edmunds Jackson (1893-1895)
Rufus Wheeler Peckham (1895-1899)
Horace Harmon Lurton (1910-1914)
James Clark McReynolds (1914-1941)
James Francis Byrnes (1941-1942)
Wiley Blount Rutledge (1943-1949)
Sherman Minton (1949-1956)
William Joseph Brennan Jr. (1957-1990)
David Hackett Souter (1990-2009)
Sonia Maria Sotomayor (2009-)

Associate-2
William Cushing (1790-1810)
Joseph Story (1812-1845)
Levi Woodbury (1846-1851)
Benjamin Robbins Curtis (1851-1857)
Nathan Clifford (1858-1881)
Horace Gray (1882-1902)
Oliver Wendell Holmes Jr. (1902-1932)
Benjamin Nathan Cardozo (1932-1938)
Felix Frankfurter (1939-1962)
Arthur Joseph Goldberg (1962-1965)
Abraham Fortas (1965-1969)
Harry Andrew Blackmun (1970-1994)
Stephen Gerald Breyer (1994-)

Associate-3
John Blair (1790-1795)
Samuel Chase (1796-1811)
Gabriel Duvall (1811-1835)
Philip Pendleton Barbour (1836-1841)
Peter Vivian Daniel (1842-1860)
Samuel Freeman Miller (1862-1890)
Henry Billings Brown (1891-1906)
William Henry Moody (1906-1910)
Willis Van Devanter (1911-1937)
Hugo Lafayette Black (1937-1971)
Lewis Franklin Powell Jr. (1972-1987)
Anthony McLeod Kennedy (1988-)

Associate-4
John Rutledge* (1790-1791)
Thomas Johnson (1792-1793)
William Patterson (1793-1806)
Brockholst Livingston (1807-1823)
Smith Thompson (1824-1843)
Samuel Nelson (1845-1872)
Ward Hunt (1873-1882)
Samuel Blatchford (1882-1893)
Edward Douglass White* (1894-1910)
Joseph Rucker Lamar (1911-1916)
Louis Dembitz Brandeis (1916-1939)
William Orville Douglas (1939-1975)
John Paul Stevens (1975-2010)
Elena Kagan (2010-)

Associate-5
James Iredell (1790-1799)
Alfred Moore (1800-1804)
William Johnson (1804-1834
James Moore Wayne (1835-1867)

Associate-6
Thomas Todd (1807-1826)
Robert Trimble (1826-1828)
John McLane (1830-1861)
Noah Hayes Swayne (1862-1881)
Stanely Matthews (1881-1889)
David Josiah Brewer (1890-1910)
Charles Evans Hughes* (1910-1916)
John Hessin Clarke (1916-1922)
George Sutherland (1922-1938)
Stanley Forman Reed (1938-1957)
Charles Evans Whitaker (1952-1962)
Byron Raymond White (1962-1993)
Ruth Bader Ginsburg (1993-)

Associate-7
John Carlton (1837-1865)

Associate-8
John McKinley (1838-1852)
John Archibald Campbell (1853-1861)
David Davis (1862-1877)
John Marshall Harlan (1877-1911)
Mahlon Pitney (1912-1922)
Edward Terry Sanford (1923-1930)
Owen Josephus Robert (1930-1945)
Harold Hitz Burton (1945-1958)
Potter Stewart (1959-1981)
Sandra Day O’Connor (1981-2006)
Samuel Anthony Alito Jr. (2006-)

Associate-9
Stephen Johnson Field (1863-1897)
Joseph McKenna (1898-1925)
Harlan Fiske Stone* (1925-1941)
Robert Houghwout Jackson (1941-1954)
John Marshall Harlan II (1955-1971)
William Hubbs Rehnquist* (1972-1986)
Antonin Gregory Scalia (1986-)

Associate-10
Joseph P. Bradley (1870-1892)
George Shiras Jr. (1892-1903)
William Rufus Day (1903-1922)
Pierce Butler (1923-1939)
William Francis Murphy (1940-1949)
Thomas Campbell Clark (1949-1967)
Thurgood Marshall (1967-1991)
Clarence Thomas (1991-)

Sources: Appendix Two, “Nominations and Successions of the Justices,” The Oxford Guide to United States Supreme Court Decisions, edited by Kermit L. Hall, Oxford University Press, 1999; “Members of the Supreme Court of the United States,” from the website of the U.S. Supreme Court.

The Court in Retrospect and Prospect

SCOTUSblog has published its final tally of the frequency with which the nine justices of the U.S. Supreme Court disagreed with each other in the 53 non-unanimous cases that were decided in the recently ended term. The tally indicates that Kennedy, the so-called swing justice, generally aligns with the Court’s “conservative” wing, so I placed him there, in company with Alito, Roberts, Thomas, and Scalia. The Court’s “liberal” wing, of course, comprises Breyer, Souter, Ginsburg, and Stevens.*

I then ranked the members of the Court’s two wings according to a measure of their net agreement with the other members of their respective wings. Thus:

090724_Supreme Court disagreement_2

090724_supreme-court-disagreement_3

Alito, for example, was in disagreement with his four “allies” (in non-unanimous cases) a total of 72 percent of the time (see graph below), for an average of 18 percent per ally. Alito was in disagreement with his four “opponents” a total of 272 percent of the time, for an average of 68 percent per opponent.  By subtracting Alito’s average anti-“conservative” score (18 percent) from his average anti-“liberal” score (68 percent), I obtained his net average anti-“liberal” score (50 percent). Doing the same for the other four “conservatives,” I found Alito the most anti-“liberal” of the “conservatives. He was followed closely by Roberts, Thomas, and Scalia, in that order. Kennedy finished fifth by several lengths.

I applied the same method to the “liberals,” and found Breyer the least anti-“conservative” of the lot, with Souter and Ginsburg close to each other in second and third places, and Stevens a strong fourth (or first, if you root for the “liberal” camp). (The apparent arithmetic discrepancies for Thomas, Breyer, and Stevens are due to rounding.)

Thus, if you are a “conservative,” you are likely to rank the nine justices as follows: Alito, Roberts, Thomas, Scalia, Kennedy, Breyer, Souter, Ginsburg, and Stevens. (However, I would place Thomas first, because he comes closest to being a libertarian originalist.) I carried this ranking over to the following graphic, which gives a visual representation of the jurisprudential alignments in the Court’s recently completed term:

090724_supreme-court-disagreement_11

It is hard to see how Sotomayor’s ascendancy to the Court will change outcomes. She may be more assertive than Souter, but I would expect that to work against her in dealings with Alito, Roberts, Thomas, and Scalia. Nor would I expect Kennedy — who seems to pride himself on being the court’s “moderate conservative” — to respond well to Sotomayor’s reputedly “sharp elbows.” Even Kennedy found himself at odds with Stevens 60 percent of the time. And it seems likely that Sotomayor will vote with Stevens far more often than not — in spite of her convenient conversion to judicial restraint during her recent testimony before the Senate Judiciary Committee.

__________
* It would be more accurate to cal Alito, Roberts, and Scalia right-statists, with minarchistic tendencies; Thomas, a right-minarchist; and the rest, left-statists with varying degrees of preference for slavery at home and surrender abroad. (See this post for an explanation of the labels used in the preceding sentence.)