The Widdershins

Posts Tagged ‘clarence thomas

Morning Widdershinners!  Wow, where to start?  So much swirling in the news it’s like trying to coronate the King of Flatulence after a soup bean feast.  There’s been good news for libruls – upholding the ACA, upholding the redrawing of congressional districts by citizen panels, upholding the prohibitions against housing discrimination, and of course, bringing equality to marriage.  Not just gay...

There was even cause for celebration amongst conservatives by the end of the week.  First, there was the news that states can continue experimenting with ways to kill people while they look for a suitable drug to keep the occupancy rate of death chambers reasonably high.  Then, as if that wasn’t enough, there was word that industry smokestacks can continue to belch out lethal mercury, sulfur dioxide, and other poisons into the air we breathe.  No expert am I, but it seems there’s a great opportunity for some synergy in these two bits of news.

So instead of dwelling on the news, let’s “reflesh” some history this morning.  I say “reflesh” since time has a way of stripping away the meat of events and leaving us with nothing more than sketchy skeletons of things past.  And when I say the past, I mean forever, like the past thirty-five years.  The wisdom of Mark Twain, “Get your facts first, and then you can distort them as much as you please,” seems to have been turned on its head over the last thirty-five years.  Facts have become afterthoughts replaced with gossamer fairy tales spun from the selective recall of pie-eyed partisans who ride unicorns and trade credit default derivatives.

reaganrushmoreBefore every public building, every airport, every road, and all currency bear the name or likeness of Ronald Reagan, we should remind ourselves of some wickedly pesky facts.  Little reminders of the era like the Iran-Contra scandal, the squandering of $130 Billion to bail out politically connected savings and loans in what was, relatively speaking, a bigger bailout than George W. Bush’s TARP, the weakening of the EPA, across the board deregulation, mind-bending increases in defense spending, “welfare queens and young bucks”, ketchup as a vegetable, and most importantly, deficits fueled by tax cuts under the guise of the trickle down economics fantasy – the ultimate political slogan masquerading as an economic theory.

It is this era where the groundwork was laid for the gutting of the middle class with flat or receding wages while the one-percenters embarked on a thirty-five year bonanza – the likes of which haven’t been seen since the Gilded Age.

To bring this written séance of things past full circle to the events of the last week, there’s an ambulatory herpetic reminder of the Scalia hands upReagan era – none other than one, Antonin Scalia.  Just like a drug resistant strain of herpes, since 1986 Scalia has been a recurring reminder of the folly of the Reagan era.

Scalia was appointed to the seat of William Rehnquist when Rehnquist was elevated to Chief Justice.  Scalia, a disciple of Robert Bork who was barred from the Supreme Court by a bipartisan coalition of Democrats and Republicans, believes in originalism.  In the mid-1970s, like worthless toadstools after a spring rain, originalism sprang from the fertile minds of Bork, Scalia, and a handful of others – all enterprising conservatives hawking a solution in search of a problem.  Virtually unheard of before the mid-1970s, originalism is Scalia’s preferred method of circular reasoning.

go back to the constitutionThe best way to describe originalism is this:  Words forever have the meanings they had at the time of their effectuation.  Per Scalia’s thinking, the words of the Constitution mean today what a reasonable person believed they meant in 1788.  Conveniently, with no one still around from 1788 it is Scalia, as a robed lexicographer, who gets to determine what that reasonable meaning was and is.  Like so many things from the Reagan era, when the practical effect of the logic is weighed, you discover a corpulent thumb on the scales.

To lay bear the folly of Scalia’s beliefs, so prevalent and political in last week’s opinions, here’s a little exercise to disprove his theory that words are fixed, unchanging purveyors of the concepts they represent.  Read this paragraph:trust me

Stringz of letterz r efforts to express meaningful propositions in an intelligible whey. To succeed does not require the youse of any rite series of words and, in fact, a sntnce fll of gibberish cn B prfctly comprehensible and meaningful 2 an intelligent reader. To understand a phrse or paragraf or an entire txt rekwires the use of human understanding and contextual infrmation not just a dctionry.

Since Marbury v. Madison established judicial review in 1803, words have been nothing more than guideposts pointing the way toward understanding.  As intelligent readers, you grasped the meaning of the “paragraf” above and you know words have no traction outside contextual and experiential understanding.  The learning here is a simple one:  Words have consequences whether they are lessening discrimination, promoting equality or unfortunately, approving a smorgasbord of execution drugs.


Oompa LoompaThirty years is a long time to suffer the foolishness of such gibberish and jiggery-pokery from a Supreme Court Justice.  So the next time you see a Reagan monument, make sure you’re reminded of his gift that just keeps on giving – an Oompa Loompa in a black robe answering to the name Antonin.

Have a great day and your opinions on any subject are encouraged and will be appreciated.


Happy 4th of July Widdershins. I hope your day and weekend is filled with egg tossing, sack races, cookouts, and oohing and aahing over fireworks commemorating the uniqueness of the American experiment. Here in the “valley of the Widdershins,” today I can offer nothing more patriotic than laying bare the most recent blemish upon an American ideal — the Hobby Lobby decision.

Amish Art

It’s funny how the mind works. When new information is introduced, there is no way to tell where that information will take your mind. That was the situation Monday morning last when I sat awaiting the Supreme Court opinion in the Hobby Lobby case.

When the decision was announced my mind didn’t focus on what the decision held. My thoughts didn’t focus on the constitutional insult of bestowing religious protection upon for-profit corporations nor did they focus on the raw ugliness of favoring the powerful over the powerless. It didn‘t even occur to me to focus on how we got to the point of relitigating contraception — an issue thought to be settled since the 1960s.

No, what occurred to me when I heard that Justice Alito had authored the Hobby Lobby decision was the art he had selected to decorate his chambers while he was on the Third Circuit Court of Appeals. His personal chambers were festooned with all matter of Amish folk art. The thing that struck me about that art was its flatness, its one-dimensionalism, and its utter lack of depth. When the findings of the Hobby Lobby opinion began to set in, my mind’s wandering to his decorating choices was strangely appropriate since art always seems to mirror the admirer.

Admittedly I am no art connoisseur and since there is only so much you can say about painted umbrella stands that began their lives as butter churns, I will leave the art review to others. What I would like to talk about today are those things upon which I didn’t immediately focus last Monday.

Alito and BushThe holding in the Hobby Lobby case was fairly forthcoming. It was couched as a statutory interpretation case focusing on the Religious Freedom Restoration Act. RFRA was championed by Ted Kennedy and passed the Senate 97-0 as a remedy to the 1990 Supreme Court case of Employment Division of Oregon v. Smith, where two Native Americans were fired from their jobs due to testing positive after ingesting peyote as part of a traditional religious service.

The main thrust of RFRA was, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” In applying RFRA to the Hobby Lobby set of facts, the Court held:

  1. RFRA was written to protect individuals’ religious freedoms and under RFRA, corporations count as people thereby their religious freedoms also get protection.
  2. The ACA requirement to cover contraception violated RFRA because the ACA mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”
  3. If the federal government wanted to increase access to birth control, the Court thinks government could do it in ways that didn’t violate religious freedom, like directly distributing contraceptives.

The Court also attempted to limit those who might benefit from this finding, saying that only “closely held” corporations can be protected under RFRA. Since about 90 percent of companies are closely-held and they employ about 52% of the workforce, this is a distinction without a real difference.

That is what the decision held, now let’s turn to the intellectual folly of bestowing religious freedom protection on for-profit corporations and the ethical revulsion associated with favoring the powerful few over the powerless many.

In writing the opinion, the first obstacle Justice Alito had to overcome were the words of former Justice John Paul Stevens, who had written, ”corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.“ In fact, RFRA referred only to a “person’s” exercise of religion — there was no mention of corporations. Admitting this, Alito opined “artificial persons” are often excluded from the definition of personhood so he went outside the RFRA and reverted to the generalized “Dictionary Act” definition of “person” which included corporations (more on the significance of this later).

After this leaky logical hole was plugged, there were myriad others with which to contend. What about the religious beliefs forbidding blood transfusions, vaccines or psychiatric care? Without any legal test, justification or precedent, Alito summarily declared, “they don’t qualify for this exception.” Why? Because he says so.

Presently, there are over seventy cases with ACA issues rolling toward the Supreme Court. Of those seventy, fifty-one have to do with religion-based challenges to contraception issues. Alito’s cursory edict of “because I say so” is not likely to hold under the onslaught of fifty-plus factual situations.

Alito is the one on the right...

Alito is the one on the right…

Another leaky hole just slightly smaller than the state of Montana: What is “sincere religious belief”? Again, not a hint of a clue in this decision — no legal test, no legal precedent. The reason is pretty simple. How do you objectively measure a religious belief premised on a patently false understanding of medicine and science? That is what is at issue here, the belief held by the Green family is untrue according to medical science, but undoubtedly they are “serious” about their baseless belief.

I would submit this is one of the largest hidden pitfalls of the Hobby Lobby case from the standpoint of organized religion and their believers. This case was sold by groups of “prophets of profit” as an abortion case. Why? Because it is easy to tap into the emotions associated with the issue and most importantly, it is easy to turn on the fundraising taps.

Without a legal test or any guidance, the Hobby Lobby decision allows the barometer for one’s sincerity of religious belief to be at the whim and circumstance of those sitting on the Supreme Court. This is a dangerous precedent. For the first time in our history, a person’s religious belief is to be measured by the fiat of the subjective judgment of those then sitting on the Court. Simply put, by a majority vote, the Supreme Court can decide a person’s or denomination’s sincerity in the depth of their religious conviction and whether or not it deserves some special dispensation.

In this particular case, the lack of inquiry as to the depth of the Green’s conviction was extraordinarily convenient. Prior to being telephoned by the Becket Fund for Religious Liberty, Hobby Lobby’s insurance offered the exact same contraception coverage they came to find so religiously objectionable. To paraphrase: The Green family’s religious conversion was not on the road to Damascus, but over Verizon wireless and conveyed via a sermon by the corporation’s general counsel.

Another point causing general agita is that this decision protects the rights of the powerful at the expense of the rights of the powerless. Hobby Lobby’s revenue is over $3.0 Billion a year and it is closely-held corporation (another point unaddressed and undefined in the opinion). The annual cost of these types of contraceptives equates to a month’s salary for their minimum wage workers. The inequity here is staggering — creating a previously unrecognized religious right for five members of the Green family at the expense of over thirteen-thousand Hobby Lobby employees and untold millions more.

This case will open the floodgates of every manner of religious exemption. Companies will ask for exemptions from employment law because they will want to discriminate. Companies will want to alter their health insurance to eliminate vaccinations or transfusions. Companies will want to again raise the payment of taxes for such things as wars, drones, and cruise missiles. The floodgates have been thrown open, the Court should expect to be inundated.

Those are just some of the highlights of the problems with creating a right of religious freedom in a for-profit corporation, but let’s turn to “how can this happen?” How can we be at the point of relitigating an issue that was settled over fifty years ago? This is the particularly insidious part. This is the anger-making part. This is the pitchfork and torch part. This is also the most difficult part to simplify, but I’ll try.

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Good morning — may it be another day where you don’t dwell on the inherent contradiction in terms.

Too often committees have been unfairly criticized — like those who say, “A camel is a horse designed by a committee,” — I say pish posh, balderdash, and any number of other trite 19th century expressions.  If not for the committee designed camel named Joe, who would have peddled cigarettes to pre-teens?

With thirty-eight days until the election, I thought it a good time for us, as helpful sorts, to form a Widdershin Committee of the Whole and to share some pointers with those humans who yearn to go on the federal payroll and thereby become members of the Romney Forty-seven Percent Class.  Who says the 47% aren’t aspirational?

I’ll begin with a few Prolixous Pointers, but by no means are these pointers exhaustive, so please add helpful hints of your own.

  • President Obama:  Please stop looking as if you are bored by this whole campaign thing.  There are thirty-eight days left and if you continue this looking bored routine, in another week or so, you are going to be bringing a blanket and a pillow to interviews.
  • Gov. Romney:  Please stop with the goofy vacant smile expression — you look like you have just taken a hit of Ecstasy and walked into a room of disco balls.
  • Paul Ryan:  Please put down Ayn Rand and reread the fable of Icarus, even doing P90X wouldn’t have kept his wings from melting.
  • Joe Biden:  Please keep being quiet, you’ve never been more articulate.
  • Harry Reid:  Please stop answering your office phones and believing everything people tell you.
  • Todd Akin:  Please resign your seat on the Science and Technology Committee.
  • Scott Brown:  Please stop your genealogical visual inspections because, ”Funny, she doesn’t look Native American,” just lacks a certain je ne sais quoi.  Also, when you are sending hooligans doing war hoops and tomahawk chops to Elizabeth Warren rallies, make sure they aren’t Senate employees.
  • Republican Party:  Please let up on Gov. Romney as a candidate because when your primary field looked like it was culled from the day room of “One Flew Over the Cuckoo’s Nest,” he was about as good as it got.
  • Bill Kristol:  Please continue leading the charge for vice presidential running mates — you are 0 for 2 so far.
  • Romney Campaign:  Please install a S&M and a cutting room thereby keeping your masochistic tendencies out of public view.
  • Susan Rice:  Please remember Hillary Clinton is still the Secretary of State and will continue to be the Secretary of State until she doesn’t want to be the Secretary of State.
  • Conservative Movement:  Please stop referring to yourselves as the intellectual illuminati of the Republican Party since comparisons like that only put you slightly ahead of bed bugs and ringworms.
  • Mitch McConnell:  Please insulate your turtle shell, it’s going to be a long winter.
  • John Boehner:  Please buy Kleenex.
  • Chris Christy, Marco Rubio, Jeb Bush:  Please buy snow suits now, Iowa and New Hampshire are cold in the winter.
  • Chief Justice Roberts:  Please be patient, Scalia and Thomas can’t stay angry forever (almost said “mad forever,” but I‘m afraid they will be “mad” forever).
  • Fox News:  Please don’t air your Fox poll results until after Karl Rove finishes trashing all the other polls that reflect exactly what your poll does.
  • Sean Hannity:  Please stop! Please, just stop.
  • Mitt Romney:  Please, no matter how much the Force moves you, do not don a Darth Vader mask and say, “Paul, I am your father.”

Now it’s your turn, this is an “all skate” open thread.

Where do I begin?  The same Supreme Court that gave us the deadly Citizens United decision that refused to review the case of Troy Davis, and declined to permit a class action suit against Wal-Mart is at it again.  There have been any number of strange courts in my day, most especially the Berger court.  If you haven’t read Bob Woodward’s The Brethren, it’s well worth your time.  The Supreme Court, simply put, is as strong as its Chief Justice – and also as strong as the ethics of the other members.  It’s not complicated – the justices are given lifetime appointments to the highest bench in the land.  In return, the nation expects them to be self-regulating and above reproach.

John Roberts had some bumps in his confirmation process, to be sure, but I’m not certain that anyone ever suspected the absolute void of leadership that he has demonstrated.  Sadly, there is little in the way of judicial oversight for the Supremes, so much of the court’s ethical direction comes from the Chief Justice.  Roberts has had some dingers thus far, such as Justice Alito’s hunting excursion with Vice-President Cheyney on the eve of a decision that involved the veep.  One would have to believe that, if Justice Alito failed to see the obvious conflict, Chief Justice Roberts should have prompted him to recuse himself from the case.  Oh, but no – Justice Alito’s personal assurance that he could rise above the obvious was good enough for John Roberts.

The Chief’s headaches are multiplying.  Both Justice Alito and Justice Thomas have accepted speaking engagements for right-wing  conservative conferences that border on campaigning.  If that isn’t enough, Justice Thomas appears to have made a little bit of a math error repetitively over the past twenty years.  From The Huffington Post:

WASHINGTON — Democratic lawmakers on Thursday called for a federal investigation into Supreme Court Justice Clarence Thomas’ failure to report hundreds of thousands of dollars on annual financial disclosure forms.

Led by House Rules Committee ranking member Rep. Louise Slaughter (D-N.Y.), 20 House Democrats sent a letter to the Judicial Conference of the United States — the entity that frames guidelines for the administration of federal courts — requesting that the conference refer the matter of Thomas’ non-compliance with the Ethics in Government Act of 1978 to the Department of Justice.

The letter outlines how, throughout his 20-year tenure on the Supreme Court, Thomas routinely checked a box titled “none” on his annual financial disclosure forms, indicating that his wife had received no income. But in reality, the letter states, she earned nearly $700,000 from the Heritage Foundation from 2003 to 2007 alone.

Slaughter called it “absurd” to suggest that Thomas may not have known how to fill out the forms.

Oops!  He just kind of forget nearly three-quarters of a million dollars.  Shucks, it could happen to anyone.  Read on:

“It is reasonable, in every sense of the word, to believe that a member of the highest court in the land should know how to properly disclose almost $700,000 worth of income,” Slaughter said in a statement. “To not be able to do so is suspicious, and according to law, requires further investigation. To accept Justice Thomas’s explanation without doing the required due diligence would be irresponsible.”

I have to believe that at least part of the reason that the Supremes are asked to fill out the forms is the highlight any potential areas of conflict.   Doesn’t the Chief Justice so much as look at them?  Or, did he suppose that Mrs. Thomas’ work for the Heritage Foundation was voluntary in nature?  Perhaps he took Justice Thomas’ word that his spouse’s employer would have no being on his ability to judge the forthcoming  The United Red States of America vs. The Affordable Health Care Act in a fair, dispassionate manner.

I sincerely hope that Attorney General Eric Holder does not take this lightly.  His record of dealing with government officials, past and present, leans sharply toward declining to intervene. That said, these are not ordinary times and this calls for extraordinary measures. At this juncture, the very essence of our government is at stake.  Without credible judicial oversight, I worry about the future of the nation.  If the Chief Justice cannot seem to keep things in line, perhaps the Justice Department must.

This is an open thread.

Rosalind Russell in "His Girl Friday"

Rosalind Russell in "His Girl Friday"

Here are your Haps for Monday morning, Widdershins – it’s all about Teh Wimminz!

Christina Romer, former chairwoman of President Obama’s Council of Economic Advisors, says cutting the deficit now would be a huge mistake.

Now is not the time. Unemployment is still near 10 percent in the United States and in Europe. Tax cuts and spending increases stimulate demand and raise output and employment; tax increases and spending cuts have the opposite effect. This is a basic message of macroeconomics and a central feature of public- and private-sector forecasting models. Immediate moves to lower the deficit substantially would likely result in a 1937-like “double dip” as we struggle to recover from the Great Recession.

Some advocates of austerity argue that, contrary to the conventional view, fiscal tightening now would lower long-term interest rates and improve confidence so much that the impact could be positive. But an ambitious new study in the World Economic Outlook of the International Monetary Fund confirms that fiscal consolidations — that is, deliberate deficit reductions — typically reduce growth substantially.

The study considers a wide range of advanced economies over the last three decades, so it doesn’t put too much weight on unusual episodes or focus on examples supporting particular conclusions. It also breaks new ground by looking specifically at times when governments changed taxes or spending with the aim of reducing deficits. Previous studies looked at summary measures of the budget situation, and likely included cases when strong economic performance caused lower deficits, not the other way around.

The recent experience of countries already carrying out austerity measures is consistent with the central finding of the I.M.F. study. Ireland, Greece and Spain have all had rising unemployment after moving to cut deficits.

Taking budget actions now that would further increase unemployment would be not only cruel, but also short-sighted. The longer unemployment remains high, the more likely it is to become permanent as workers’ skills deteriorate and they gradually drop out of the labor force.

No wonder she resigned from Obama’s Council of Economic Advisors in August – clearly, no one was listening to her pertinent and historically accurate advice.

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